Williams v Central Bank of Nigeria

Permission to serve proceedings out of the jurisdiction requires a serious issue to be tried, a good arguable case within a service-out gateway, and England to be clearly or distinctly the appropriate forum.

An executive or legislative directive which declares public-law rights does not also create an English private-law trust or contract unless its terms show that dual purpose. A clause accepted by the defendant which gives the claimant a choice of forum and provides for English law may make England the appropriate forum. Once all jurisdictional requirements are independently met, permission should not remain conditional on the survival of a separate claim.

Dr Williams appealed from Beatson J’s order, [2012] EWHC 74 (QB), concerning permission to re-amend his claim and serve it on the Central Bank of Nigeria in Nigeria.

The proposed amendments relied on a 1993 presidential directive, called the Fidelity Guarantee, and advanced claims for an express trust, a contractual promise held on trust, and direct enforcement under Nigerian law. Beatson J allowed service only for part of the Nigerian-law claim and made that permission conditional upon the continued viability of an earlier trust claim.

On appeal, the bank accepted for present purposes that a later letter was genuine and showed that both disputed sums were held in London. The issues were whether the Fidelity Guarantee created private-law rights, whether England was clearly the appropriate forum, and whether the condition should remain.

1. The appeal was allowed in part. The court refused permission to amend and serve out on the proposed trust and contractual-promise claims. It granted permission for the Nigerian-law claim and removed the condition attached to that permission.
2. Permission to serve out required a serious issue to be tried, a good arguable case within a gateway in Practice Direction 6B, and England to be clearly or distinctly the appropriate forum. On the bank’s concession concerning the later letter, there was a good arguable case that the whole subject matter of the claim related to property within the jurisdiction.
3. The Fidelity Guarantee was an executive order made by the Nigerian Head of State in a public capacity. Its purpose was to declare and remedy public-law matters. Although its language might, if found in a purely private document, arguably support an express trust, it was not reasonably arguable that the same instrument also intended to create a private-law trust. The subsequent bank letter could not alter that conclusion, because its language was at most its writer’s subjective understanding of the directive’s effect.
4. For the same reasons, and consistently with Beatson J’s further point, it was not seriously arguable that the directive created a contractual promise by the bank to the Nigerian State which that State held on trust for Dr Williams.
5. England was clearly the appropriate forum for the Nigerian-law claim. By noting and accepting the directive, the bank had accepted a provision giving Dr Williams a choice of forum and applying English law. After his election of England, the position was analogous to an exclusive English jurisdiction agreement, enforceable absent strong reason: Donohue v Armco, [2002] 1 Lloyd’s Rep 425. The related claim concerning the same sums was also proceeding in England.
6. The condition tied to the outcome of the earlier trust claim should be set aside. The Nigerian-law claim now independently satisfied the jurisdictional requirements, including the appropriate-forum requirement.

• Court of Appeal (Civil Division) — unanimously allowed the appeal only as to the Nigerian-law claim, refused the private-law trust and contract claims, and removed the condition on service out.
• High Court, Queen’s Bench Division (Beatson J) — granted limited permission to amend and serve out in relation to part of the Nigerian-law claim, but refused the proposed trust and contractual claims: [2012] EWHC 74 (QB).