JEB Recoveries LLP v Binstock

For special jurisdiction under Article 5(1)(b) of the Council Regulation (EC) No 44/2001, where services are provided in several Member States, jurisdiction lies where the main provision of services is situated. That place is identified from the contract, then actual performance, and finally the service provider’s domicile if necessary. The claimant must show a good arguable case, meaning that its argument is materially stronger than the defendant’s. A mere connection with England is insufficient. Work in England that is not part of the contracted services, or evidence too vague to establish England as the main place of performance, cannot satisfy the test. Fresh evidence on appeal is refused where it could reasonably have been adduced below.

JEB Recoveries LLP brought four contractual claims against Mr Binstock, who was domiciled outside England. The High Court held that England had no jurisdiction over three claims but that it could hear the third claim, involving services allegedly performed partly in England. It also rejected an application to strike out that claim as founded on a champertous assignment: [2015] EWHC 1063 (Ch).

On appeal, JEB sought to rely on fresh evidence and raised a late argument that Mr Binstock had submitted to the jurisdiction. The central issue was whether JEB had a good arguable case that England was the place of the main provision of the contracted services under Article 5(1)(b).

1. Disposition. Lord Justice Kitchin gave the leading judgment, with Lord Justices Tomlinson and Moore-Bick agreeing. The appeal was allowed on the jurisdiction issue. The English courts could not assume jurisdiction over the third claim under Article 5 of the Council Regulation (EC) No 44/2001.
2. Late submission to jurisdiction. The court refused permission to raise JEB’s contention that Mr Binstock had submitted to the jurisdiction. The conduct relied on occurred after the High Court’s judgment and was outside the scope of the appeal. It was also raised so late that Mr Binstock had not had a full and fair opportunity to address it or adduce evidence. JEB remained free to pursue the issue before the High Court. The Court of Appeal expressed no view on its merits.
3. Fresh evidence. The principles in Ladd v Marshall [1954] 1 WLR 1489 remained powerful persuasive authority. JEB had to show that the evidence could not reasonably have been obtained for use below, that it would probably have an important influence on the result, and that it was apparently credible. The application failed at the first hurdle because JEB had ample opportunity to address the jurisdiction evidence at first instance. The absence of deliberate tactical withholding and the asserted lack of prejudice did not justify admission.
4. Article 5(1)(b). Following Wood Floor Solutions Andreas Domberger GmbH v Silva Trade SA [2010] 1 WLR 1900, the place of performance was the place with the closest link, generally the place of the main provision of services. The court had to examine, in sequence, the contractual terms, actual performance, and, only if necessary, the service provider’s domicile. JEB also bore the burden of showing a good arguable case, meaning that its argument was much better than Mr Binstock’s.
5. Application. The alleged agreement concerned identifying and acquiring a publicly quoted company and arranging for it to acquire Mr Binstock’s business assets. The allegations did not show that England was the contractual place of the main provision. Nor did the evidence establish that most of Mr Wilson’s activities were performed in England. He was said to have based himself in Paris, while his work in London and Spain was insufficiently particularised. The English limited liability partnership was a vehicle through which Mr Wilson intended to provide services and receive payment, not itself part of the contracted services. Mr Wilson was not suggested to be domiciled in England. The question of champerty therefore did not arise for decision.

1. Court of Appeal (Civil Division): allowed Mr Binstock’s appeal against the jurisdiction order and refused JEB permission to rely on fresh evidence or raise its late submission argument on the appeal.
2. High Court of Justice, Chancery Division: held that England had jurisdiction over the third claim, rejected the champerty strike-out application, and dismissed the aggravated-damages claim: [2015] EWHC 1063 (Ch).