Sharab v Al -Saud

Permission to serve proceedings out of the jurisdiction is confined to the cause of action that satisfies the identified jurisdictional gateway. The court must examine the pleaded causes of action and cannot allow the wording of an order to extend permission to a claim that falls outside the gateway.

A restitutionary quantum meruit claim is not a claim made in respect of a contract where it proceeds on the assumption that no contract exists. For the restitution gateway, the acts giving rise to the defendant’s alleged liability must include substantial and efficacious acts committed within the jurisdiction. The assessment requires judgment and a common-sense consideration of the acts as a whole.

The claimant sought a commission arising from services said to have facilitated the sale of an aircraft and an investment project. The proceedings were served on the defendant, who was outside the jurisdiction, after permission was granted under contractual gateways in the Civil Procedure Rules.

The claimant pleaded contractual claims and, alternatively, a quantum meruit claim on the basis that no enforceable contract existed. The defendant sought clarification that permission to serve out did not extend to the restitutionary claim. The claimant alternatively sought permission under the restitution gateway and directions for the action to proceed to trial.

1. Scope of service-out permission. The gateway is a gateway to the particular claim or cause of action to which it relates. It does not extend to other causes of action merely because they appear in the same particulars of claim. The court must examine the pleaded causes of action and confine proceedings against a foreign defendant to those which passed through the relied-on gateways.
2. The claimant’s restitutionary quantum meruit claim proceeded on the footing that no contract had been concluded. It therefore could not be a claim made “in respect of a contract” under the contractual gateways. It could not be brought within those gateways merely because it was pleaded in the alternative to a contractual claim.
3. Restitution gateway. The relevant acts are principally, though not exclusively, those of the claimant which enriched the defendant. Substantial and efficacious acts within the jurisdiction may suffice even if other substantial acts occurred abroad. The acts within the jurisdiction must be material to the defendant’s liability and form part of what must be proved to establish it. There is no bright-line test; the court must consider the acts as a whole and adopt a common-sense approach.
4. On the evidence, the services forming the basis of the restitutionary claim were performed almost entirely in Libya. The acts identified in England were either irrelevant background matters or played only a minor role in establishing liability. The restitutionary gateway was therefore not satisfied to the required standard.
5. The court had power under CPR 3.1(7) to make an ancillary order clarifying the meaning and effect of an earlier order. It was appropriate to declare that the permission granted by Lindsay J did not extend to the restitutionary claims, while leaving the contractual quantum meruit claim unaffected.
6. The proposed amendments clarified the contractual quantum meruit claim and did not introduce a new cause of action. They were allowed. The claimant’s application for permission under the restitution gateway was refused, and the defendant’s application for clarification was granted in substance.

The judgment records that the defendant unsuccessfully challenged the service-out order before a deputy judge. The Court of Appeal allowed the challenge to one gateway but dismissed the remaining challenges, so the order permitting service out remained in force: [2009] EWCA Civ 353. A petition for leave to appeal to the House of Lords was refused.