Jong v HSBC Private Bank (Monaco) & Anor

Where an exclusive jurisdiction clause governs most of a dispute, the court should ordinarily enforce it unless substantial justice cannot be achieved in the chosen forum. The presence of English defendants who may be sued in England does not automatically justify retaining related claims here, particularly where those claims are subsidiary or parasitic upon the principal claim. The claimant bears the burden of showing that England is clearly the more appropriate forum. Differences between common-law and civil-law procedure, possible delay, reduced costs recovery and criticism of the foreign judiciary will not ordinarily suffice. Case management may coordinate proceedings in different jurisdictions, but must not circumvent the limits imposed by Owusu v Jackson.

The claimant brought substantial claims arising from foreign-exchange dealings conducted principally with HSBC Private Bank (Monaco) SA in Monaco. The claim against that defendant was governed by Monaco law and was subject to an assumed exclusive Monaco jurisdiction clause covering more than 90 per cent of the transactions.

Two English HSBC companies were later joined. The claimant alleged that they had investigated complaints from England, failed to identify or report wrongdoing by HSBC Monaco, and thereby caused or prolonged her losses. The master permitted service out of the jurisdiction on HSBC Monaco. HSBC Monaco applied to set that permission aside, arguing that Monaco was the more appropriate forum.

The central issue was whether the English claims, and the possibility of inconsistent judgments, outweighed the exclusive jurisdiction clause and the other connecting factors favouring Monaco.

1. Application granted. Permission to serve HSBC Monaco out of the jurisdiction was set aside. The claimant had failed to show that England was clearly the more appropriate forum.
2. The starting point was an inclination to enforce the exclusive jurisdiction clause. Its importance had been repeatedly recognised in Donohue v Armco Inc [2002] 1 All ER 749. Although the court was not bound to enforce the clause where justice required otherwise, it governed more than 90 per cent of the claim and was a powerful factor favouring Monaco.
3. The English defendants did not justify a different result. They could, if necessary, submit to the Monaco courts. Their claims were largely subsidiary or parasitic upon the allegations against HSBC Monaco and required examination of substantially the same trading facts. The court treated the reasoning in Pacific International Sports Clubs Ltd v Soccer Marketing International Ltd [2009] EWHC 1389 as applicable: the presence of a relatively minor local defendant should not determine where the dispute as a whole is tried.
4. Under Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, the relevant question was whether Monaco was the appropriate forum and whether substantial justice could be achieved there. The Monaco-law issues, procedural differences, limited oral evidence, disclosure arrangements, costs recovery and possible delay did not establish a denial of justice.
5. The court also considered Owusu v Jackson [2005] ECR I-1383. Any later case-management arrangements would have to avoid evading the restriction on forum conveniens stays through the back door. That issue did not yet arise because no Monaco proceedings had been commenced.

The master granted permission on 30 January 2014 to serve HSBC Monaco out of the jurisdiction. On HSBC Monaco’s application, the High Court set that permission aside.