Jong v HSBC Private Bank (Monaco) SA

On an application to serve a foreign defendant out of the jurisdiction, the court must assess all relevant factors in the round. An exclusive jurisdiction clause ordinarily carries substantial weight, but does not automatically determine the forum. A claimant’s right under Council Regulation (EC) 44/2001 to sue English-domiciled co-defendants in England, and the risk of inconsistent judgments, are powerful countervailing factors. They may nevertheless be outweighed where the foreign claim is principally connected with the chosen jurisdiction, is governed by its law, and is the antecedent claim on which related English claims depend. Appellate intervention is limited: a different balancing exercise is insufficient without an error of principle or an unreasonable conclusion.

Ms Jong appealed against the decision of HHJ Purle QC in the High Court, Chancery Division, setting aside permission to serve HSBC Private Bank (Monaco) SA outside the jurisdiction. Her claims concerned allegedly unauthorised or omitted foreign-exchange trades conducted through a Monaco account under contracts governed by Monegasque law and containing an exclusive Monaco jurisdiction clause.

She also sued two HSBC companies domiciled in England and Wales, alleging negligence in their handling of her complaints. She wished to maintain all claims in England because of their factual overlap and the risk of inconsistent judgments. The central issue was whether those English connections outweighed the contractual clause and the stronger connection of the Monaco claim with Monaco.

1. Appeal dismissed. The judge was entitled to set aside permission to serve HSBC (Monaco) out of the jurisdiction.
2. The discretion had to be exercised holistically and iteratively. The claimant’s right to sue the English-domiciled companies in England, and the risk of inconsistent judgments, were relevant and powerful considerations. The judge’s description of an inclination to enforce the exclusive jurisdiction clause as the starting point did not demonstrate a sequential or legally erroneous approach. What mattered was the overall balance reached at the end of the exercise.
3. An exclusive jurisdiction clause ordinarily gives the chosen court a strong claim to hear disputes within its scope. Under [2001] UKHL 64 and [2002] 1 All ER 749, the clause should ordinarily be respected unless strong reasons justify departure. The principle was not inflexible. The circumstances in that authority, involving numerous parties and claims outside the clause, did not provide more detailed guidance applicable to the present facts.
4. The right to proceed in England under Council Regulation (EC) 44/2001 did not require HSBC (Monaco) to be sued there. The Monaco claim was governed by Monegasque law, arose from trading activity conducted through the Monaco account, chronologically preceded the claims against the English companies, and was the principal claim on which those claims depended. The English companies were willing to submit to the Monaco courts. That distinguished OJSC VTB Bank v Parline Ltd [2013] EWHC 3538 (Comm), where no exclusive jurisdiction clause was in issue.
5. The nature of the claims and defendants, including their relative practical importance, could properly be considered, but rigid labels such as major and minor defendants were not determinative. Alleged procedural shortcomings in Monaco carried little weight because the parties had chosen that jurisdiction. The judge considered the relevant factors, excluded irrelevant considerations, and reached a conclusion within the bounds of reasonableness. The possibility that another judge might have balanced the factors differently did not justify appellate intervention. Lord Justice Lewison delivered the judgment; Lord Justice Moore-Bick and Sir Timothy Lloyd agreed.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the decision refusing permission to serve HSBC Private Bank (Monaco) SA out of the jurisdiction: [2015] EWCA Civ 1057.
• High Court, Chancery Division: HHJ Purle QC set aside the order permitting service out, giving greater weight to the exclusive Monaco jurisdiction clause and the connection of the claim with Monaco.