Bill Kenwright Ltd v Flash Entertainment FZ LLC

For service out of the jurisdiction, the claimant must show a much better argument that the claim falls within a jurisdictional gateway where jurisdiction and merits overlap. The evidence must satisfy both relative plausibility and an acceptable standard of quality and adequacy.

A contract made through instantaneous communications is concluded where acceptance is received. A settlement agreement involving payment of money may have payment as its characteristic performance, but that presumption can be displaced where the agreement is more closely connected with England. A service treaty is relevant to an application for alternative service, but does not prevent an order under Civil Procedure Rules 1998, rule 6.15 where there is good reason. Such an order may specify deemed service.

Bill Kenwright Limited claimed £500,000 from Flash Entertainment FZ LLC under an alleged settlement agreement concerning the proposed staging of Jekyll & Hyde in Abu Dhabi. Flash denied that the earlier arrangements or settlement agreement existed.

Flash challenged service out of the jurisdiction and sought to set aside the service-out order, the alternative-service order and the claim form. The issues included whether Kenwright had the required evidential case, whether the claim fell within the jurisdictional gateways, whether England was the appropriate forum, and whether registered-post service could validly be ordered and deemed effective.

1. Merits and jurisdictional threshold. The claimant had the much better argument on the evidence that a self-standing settlement agreement had been concluded. The contemporaneous correspondence, negotiations, invoices and diary entries supported that conclusion. Where the jurisdictional issue overlaps with the merits, the court must assess relative plausibility on interlocutory material while applying an absolute standard of evidential quality and adequacy.
2. Contract gateway. Under the rule in Entores LD v Miles Far East Corporation [1955] 2 Q.B. 327, acceptance communicated by telephone is effective where it is received. The settlement agreement was therefore made in England when the defendant accepted the claimant’s counter-offer during the international telephone call. The first contractual gateway was satisfied.
3. Governing law. For a vanilla settlement agreement involving payment of money in discharge of a debt or compensation, payment may constitute the characteristic performance under Article 4(2) of the Rome I Regulation. Here, however, the presumption was weak and displaced because the negotiations and key meetings occurred in England and the invoices provided for payment there. English law was the putative proper law.
4. Forum conveniens. England was the natural forum. The principal witnesses were in England or regularly travelled there, the evidence was in English, proceedings in the UAE would require translation into Arabic, and the agreement was governed by English law.
5. Alternative and deemed service. The existence of the UK-UAE Service Treaty was relevant as a matter of comity, but it did not make treaty service immutable. The anticipated delay, the defendant’s knowledge of the dispute, the absence of inconsistency with UAE law, and the claimant’s attempts at service provided good reason under Civil Procedure Rules 1998, rule 6.15. Following Abela v Baadarani [2013] 1 WLR 2043, rule 6.15 applied to service out of the jurisdiction. Rule 6.15(4) required, and therefore authorised, an order specifying the date of deemed service. The defendant’s challenges were dismissed and service by registered post was good service.

This was a first-instance decision of the High Court. The judgment records earlier procedural orders made by Master McCloud and Senior Master Fontaine concerning service out, extensions of time and alternative service.