Chopra & Anor v Bank of Singapore Ltd & Anor

A foreign company may be served in England under CPR r 6.9(2) only where it carries on activities, or has a fixed place of business, in the jurisdiction. The activities of a separate English company acting as a referral intermediary do not become those of the foreign company merely because the intermediary markets its products, uses a trading name, or receives funding from it. Service cannot ordinarily be dispensed with retrospectively where the claimant failed to establish the statutory precondition for service. A claim against a parent company requires a pleaded factual or legal basis. For forum non conveniens, Singapore was clearly and distinctly the more appropriate forum where the defendants, principal witnesses and business were there and Singapore law governed the tort claims.

The claim concerned investments by the claimants in bonds issued by OJSC Financial Leasing Company. They alleged that Bank of Singapore Ltd, formerly ING Asia Private Bank Ltd, had misrepresented the bonds as carrying quasi-Russian sovereign risk and had negligently advised them. The bank was incorporated and operated in Singapore. Its parent, Oversea-Chinese Banking Corporation Ltd, operated a regulated London branch trading as Bank of Singapore.

The claim form was delivered at the London premises of the parent’s branch and to the trading name. The defendants challenged service on the Singapore bank, sought to strike out the claim against the parent, and sought a stay on forum non conveniens grounds.

1. Jurisdiction under the Brussels I Regulation. Article 15 was expressly subject to Article 4. Since neither defendant was domiciled in a Member State, Article 4 applied and Article 15 did not confer jurisdiction.
2. Service on the Singapore bank. CPR r 6.9(2) requires a fixed and definite place in England where the foreign corporation carries on activities or has a place of business. The relevant inquiry concerns the functions performed by any representative and the relationship between that representative and the corporation. Authority to contract is not essential, but it is of great importance and is the principal test.
3. OCBC London carried on its own regulated business as an independent referral intermediary. Its service agreement excluded authority to bind the Singapore bank. Its use of the Bank of Singapore trading name, receipt of clients’ money by the Singapore bank, and cost-plus remuneration did not establish that the Singapore bank carried on business at the London premises. The claim form was therefore not validly served on it.
4. Dispensing with service. CPR r 6.16 is confined to truly exceptional cases. The failure resulted from the claimants’ inability to establish the precondition for service, rather than a technical error, and the claimants knew where the Singapore bank could be found. Service was not dispensed with.
5. Claim against the parent. The assertion that OCBC had assumed all liabilities on acquisition was unsupported by pleaded facts or law. The claim disclosed no reasonable grounds and was struck out under CPR r 3.4(2)(a).
6. Applicable law. Under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995, Singapore was the country with the most significant connection to the misrepresentation and negligence claims. The representations were made from Singapore, instructions were executed there, the accounts and investments were there, and the alleged due-diligence breach occurred there.
7. Contract terms. The Singapore choice-of-law and non-exclusive jurisdiction clause was not displaced by Article 7(2) of the Rome Convention, UCTA or UTCCR. The essential steps for contracting occurred in Singapore, the contracts lacked the required close connection with Member State territory, and the clause was neither unfair nor contrary to good faith.
8. Forum. Singapore was available and clearly and distinctly the more appropriate forum. Singapore law applied, the defendants were domiciled and regulated there, and the principal witnesses were there. The English statutory claims did not create a special circumstance requiring trial in England. A stay would have been granted if necessary.