Williams v Central Bank of Nigeria

Permission to serve proceedings out of the jurisdiction requires a sufficiently strong merits case where the same issue determines whether a jurisdictional gateway applies. The applicant must show clearly more than a balance of probability and, where appropriate, must have much the better of the argument.

A document issued as a legislative or quasi-legislative command does not readily create a private-law trust or contract merely because it refers to consent, custody, good faith or repayment. The absence of a requirement to segregate funds is normally significant against a trust. A foreign-law claim will not fall within the property gateway where only part of the subject matter is within England, and England must in any event be clearly or distinctly the most appropriate forum.

The claimant sought permission to re-amend his pleadings and to serve three new claims on the defendant Nigerian bank outside the jurisdiction. The claims arose from a document dated 29 September 1993, described as a Fidelity Guarantee or command instruction, which purported to require repayment of monies allegedly taken from the claimant.

The proposed claims alleged a trust of the monies, a contract involving a trust of the defendant’s promise, and enforceable obligations under Nigerian law. The claimant relied on contractual, trust and property jurisdictional gateways under CPR Practice Direction 6B. The central questions were whether the document disclosed a serious issue to be tried and whether the relevant gateways and forum requirements were satisfied.

1. Applicable threshold. Where the existence of a trust or contract is relevant both to the merits and to a jurisdictional gateway, the court applies the higher much the better of the argument standard. It is insufficient that the claimant merely has the better argument on balance. The claimant must show that it clearly does.
2. Trust claim. The document was fundamentally a legislative or quasi-legislative command issued by the President and Commander-in-Chief. References to the defendant acting as a custodian, releasing money in good faith, or consenting to the directions did not convert it into a private-law trust. The document contemplated repayment or release, but did not require segregation of the monies. That absence, together with the nature of the instrument and the evidence that funds had been placed in a consolidated account, meant that the claimant did not meet the applicable threshold.
3. Contract claim. The proposed trust of the defendant’s promise depended on treating the same instrument as a contract. That argument also failed. Although failure to join the alleged promisee could have been cured before judgment, the instrument did not disclose a contract. The reasoning in Swain v Law Society [1983] AC 598 provided analogous assistance: where a direct statutory remedy exists, it is unnecessary to imply a trust of a promise made under public statutory powers.
4. Nigerian-law claim and gateways. The contract gateway did not apply because the instrument was not a contract. The property gateway was doubtful because the document included monies held in Nigerian accounts, so the whole subject matter was not within England. Even if that gateway applied to part of the claim, England was not clearly or distinctly the most appropriate forum for enforcing Nigerian law, particularly where the claim could not be determined wholly in England.
5. Permission to serve out in respect of all the new claims was refused.

The application followed an earlier decision by Supperstone J, [2011] EWHC 876 (QB), concerning service out of the jurisdiction on earlier claims. The present court determined only whether the newly proposed claims could be added and served out.