SSL International Plc & Anor v TTK LIG Ltd & Ors (Rev 1)

A foreign company cannot be served within England and Wales under CPR Part 6.5(3)(b) merely because one of its senior officers is present here. The company itself must be present through carrying on business within the jurisdiction.

Occasional board meetings and approvals given in England for expenditure abroad do not establish that presence. Standard contractual terms are not incorporated merely because they appear on an uncommunicated purchase order or are believed to apply by a nominee director.

Mandatory relief for delivery of goods requires sufficiently certain identification of the goods and an order capable of practical supervision and enforcement. The court may refuse relief and permission to serve abroad where the dispute is centred in another country and the proposed order would require extensive supervision there.

The claimants participated in an Indian joint venture whose company, TTK, manufactured a substantial proportion of their condoms. Following a breakdown in relations, TTK stopped making deliveries. The claimants brought English proceedings for contractual and economic tort relief and purported to serve TTK by serving one of their own nominee directors in England.

Mann J refused urgent mandatory relief and permission to serve the other defendants outside the jurisdiction: [2011] EWHC 1695 (Ch). Peter Smith J subsequently refused default judgment against TTK: [2011] EWHC 2045 (Ch).

The appeals concerned whether TTK had been validly served, whether it carried on business in England, waiver, incorporation of English governing-law and jurisdiction terms, entitlement to specific delivery, and whether England and Wales was the proper forum.

1. Both appeals dismissed. CPR Part 6.5(3)(b) implicitly applies only to a company within the jurisdiction. A foreign company is not amenable to personal service merely because a senior officer happens to be present here. The company must itself be present by carrying on business within the jurisdiction. The common-law principle stated in The Theodohos and the Okura line of authority remained applicable under the CPR.

2. TTK was not carrying on business within the jurisdiction. Occasional board meetings in England lacked the necessary continuity, and there was no prospect of further meetings after the joint venture had broken down. Approvals given in London for expenditure incurred by TTK in India were not the conduct of TTK's business in England. TTK was therefore not duly served, had not waived the defect, and was under no obligation to acknowledge service. Default judgment was unavailable.

3. The claimants had not shown a good arguable case that their standard terms formed part of the supply contracts. The purchase orders referring to those terms were never sent to TTK. Supplying a purchase-order number did not communicate the terms. Assertions and subjective beliefs by nominee directors could not overcome the documentary evidence or establish TTK's agreement. The consensus required by Article 23 of the Judgments Regulation was absent. The contracts were consequently governed by Indian law under Article 4.1(a) of the Rome I Regulation.

4. The evidence did not identify the manufactured condoms as specific or ascertained goods for section 52 of the Sale of Goods Act 1979. It was impossible to identify which goods related to particular contracts, where they were located, whether they were deliverable, or which export documents were required. A mandatory interim injunction required a strong case, especially where performance would occur abroad. The proposed order would demand an unacceptable degree of supervision in India and create substantial scope for enforcement disputes.

5. Although the claimants had a strong arguable case on the alleged economic torts and had suffered loss in England, the litigation was centred in India. It concerned an Indian company, Indian parties and events in India, contracts governed by Indian law, and goods located there. Related proceedings and interim relief were already before an Indian judicial body. England and Wales was not the appropriate forum, so permission to serve the remaining defendants abroad and mandatory relief were properly refused.

Arden and Mummery LJJ agreed with Stanley Burnton LJ.

• Court of Appeal (Civil Division): Dismissed both appeals and upheld the refusal of default judgment, mandatory injunctive relief, and permission to serve defendants outside the jurisdiction: [2011] EWCA Civ 1170.
• High Court, Chancery Division (Peter Smith J): Refused the claimants' application for default judgment against TTK: [2011] EWHC 2045 (Ch).
• High Court, Chancery Division (Mann J): Refused urgent mandatory relief against TTK and permission to serve the other defendants outside the jurisdiction: [2011] EWHC 1695 (Ch).