Eurasia Sports Ltd v Tsai (k/a Martin Tsai) & Ors

On an application to serve proceedings out of the jurisdiction, the claimant must show a serious issue to be tried, a good arguable case that each claim falls within a jurisdictional gateway, and that England is clearly or distinctly the appropriate forum. The tort gateway is satisfied where the claimant’s direct financial harm occurred in England, including where decisions made there caused the claimant to assume betting risk and incur liabilities. A contractual payment obligation may be performed abroad where the contract specifies the place and method of payment. Claims which do not independently pass through a gateway may nevertheless proceed where the defendant is a proper party or the claims arise out of the same or closely connected facts. Forum is assessed by the governing law, place of tort, factual connections, and the convenience and expense of witnesses and documents.

The claimant, an Alderney betting agency, alleged that defendants resident in Peru obtained betting credit through false security, dishonoured payment instruments and coordinated conduct. It claimed debts, fraudulent misrepresentation, conspiracy and breach of an agency and security agreement.

The third, sixth and eleventh defendants challenged jurisdiction and sought to set aside permission to serve the proceedings out of England and Wales. The issues were whether there was a serious issue to be tried, whether the claims fell within the gateways in CPR 6 BPD paragraph 3.1, whether England was the appropriate forum, and whether non-disclosure justified setting aside permission.

1. Jurisdictional threshold. The claimant had to establish a serious issue to be tried and show that it had much the better of the argument on the gateway questions. There was a serious issue on the debt, misrepresentation, conspiracy and agency-security claims. The evidence supported an inference of concerted conduct, although participation remained to be proved.

2. Tort gateway. The direct harm occurred in London where the claimant, through its agent, allowed betting on credit in reliance on security which was not genuine or available. The fraudulent misrepresentation and conspiracy claims therefore fell within CPR 6 BPD paragraph 3.1(9)(a). The court applied AMT Futures Ltd v Marzillier etc mbH [2015] EWCA Civ 143; [2015] QB 699, distinguishing the relevant approach from Dolphin Maritime & Aviation Services Ltd v Sveriges Angartygs Assurans Forening [2010] 1 All ER (Comm) 473.

3. Contract gateways. The claimant did not have much the better argument that the relevant payment breaches occurred in England. The agreed payment route was transfer to the claimant’s bank in Malta, displacing the general debtor-must-seek-out-the-creditor rule. The evidence also failed to establish that Nieri’s telephone acceptance was received in London. The remaining claims could proceed under the proper-party gateway and CPR 6 BPD paragraph 3.1(4A), because they required one investigation and arose from the same or closely connected facts.

4. Forum and disclosure. England was clearly the most appropriate forum. The business was operated through London, the direct damage occurred there, related proceedings were already pending there, and the evidence of potential corruption in Peru carried some weight. The standard terms were irrelevant because there was no evidence that they had been incorporated. The application was refused.