IMS SA & Ors v Capital Oil And Gas Industries Ltd

CPR Part 11 provides a single procedural code for challenges to the existence of jurisdiction and challenges to the exercise of jurisdiction. Where both grounds exist at the outset, they should normally be advanced together. A defendant should not reserve a forum non conveniens challenge for a later application after an initial jurisdiction challenge has failed.

An Article 25 jurisdiction agreement depends on clear and precise consensus-in-fact under autonomous European law. An unsigned agreement may fail to establish such consensus where the circumstances indicate that signature was intended to be a condition of consent. On forum non conveniens, the defendant must show that another forum is clearly or distinctly more appropriate.

The claimants sought US$5.8 million under a document described as a Confidential Deed of Settlement. The defendant disputed its execution and enforceability.

The defendant first challenged service and the existence of jurisdiction. After that challenge failed, it made a further application contending that Nigeria was the more appropriate forum. The claimants applied for summary judgment. The court had to determine whether the further jurisdiction challenge was procedurally available, whether the Settlement Deed contained an effective Article 25 jurisdiction agreement, whether Nigeria was clearly the more appropriate forum, and whether the defendant had a real prospect of defending the claim.

1. Procedural jurisdiction challenge. CPR Part 11 contains one procedural code for both challenges to the existence of jurisdiction and challenges to the exercise of jurisdiction. Where both grounds exist when proceedings begin, they should normally be brought in one application. This promotes expedition, efficiency and finality. The defendant’s first application concerned service and the existence of jurisdiction; the later application concerned forum non conveniens and a different form of relief. It was therefore not a repetition of the first application within the principles discussed in The Laemthong Glory and Rawlinson v ITG.
2. The later application was out of time under CPR rule 11(4)(a), and the defendant’s further acknowledgment of service engaged rule 11(8). However, the court did not decide whether those matters independently barred the application, because the application failed on its merits.
3. Article 25 agreement. The claimants had to show that they had the better of the arguments that an Article 25 agreement existed. The concept is autonomous European law and requires clear and precise consensus-in-fact. English domestic law concerning deeds was not determinative. The evidence was too unsatisfactory to establish that the Settlement Deed had been executed by the claimants. Its terms and surrounding circumstances also indicated that execution by both sides may have been intended before the agreement, including its jurisdiction clause, took effect.
4. Forum non conveniens. Applying the principles in Spiliada Maritime Corp v Cansulex Ltd, the defendant had to establish that Nigeria was clearly or distinctly more appropriate than England. The location and nationality of the parties, witnesses, documents and events did not satisfy that threshold. England was at least as appropriate, particularly given the English governing law and the English jurisdiction clause relied upon.
5. The forum non conveniens application was dismissed. The defendant had a real prospect of defending the claim on the disputed execution of the Settlement Deed, so the summary judgment application was also dismissed.

First instance decision. The judgment does not state any prior appellate decision in this dispute.