Dawnus Sierra Leone Ltd v Timis Mining Corporation Ltd & Anor

A non-exclusive English jurisdiction clause creates a strong prima facie case for retaining English jurisdiction. The party seeking to avoid that contractual choice must show a very strong or compelling reason. Foreseeable convenience factors and the mere existence of parallel foreign proceedings are insufficient.

For service out of the jurisdiction, the claimant must show a real prospect of success, a good arguable case that a jurisdictional gateway applies, and that England and Wales is clearly the appropriate forum. The good arguable case requirement concerns the jurisdictional gateway, not the merits.

An anti-suit injunction requires caution because of comity. Parallel proceedings are not automatically vexatious or oppressive, particularly where the jurisdiction clause is non-exclusive.

Dawnus Sierra Leone Ltd claimed approximately US$18 million from Timis Mining Corporation Ltd and Timis Mining Corporation (SL) Ltd for mining services. The defendants contended that the contract was with TMCSL and that substantial pre-payments had been made.

TMCSL had commenced proceedings in Sierra Leone. The claimant then commenced proceedings in England, obtained permission for service, and sought an injunction restraining the Sierra Leone proceedings. TMC sought to set aside service, while TMCSL sought to stay or set aside the English proceedings.

The issues were whether there was a real prospect that TMC was a contracting party, whether England was the proper forum despite the Sierra Leone proceedings, and whether continuation of those proceedings was vexatious or oppressive.

1. TMC’s application. The court held that there was good reason for alternative service under CPR r. 6.15(1), given the claimant’s substantial efforts to discover TMC’s address and the defendants’ failure to respond to repeated requests. However, alternative service could not place the claimant in a better position than service out of the jurisdiction.
2. For service out, the claimant had to establish: (i) a real, rather than fanciful, prospect of success; (ii) a good arguable case that a gateway in Practice Direction 6B paragraph 3.1 applied; and (iii) that England and Wales was clearly the appropriate forum. The second requirement concerned the jurisdictional gateway, not the merits. The English-law and jurisdiction clause plainly satisfied gateway 6.
3. The claimant had no real prospect of proving that TMC was party to the contract. The Letter of Intent placed obligations on TMCSL, identified a Sierra Leone-registered company owning the mine and holding the licence, and contemplated only two contracting parties. The evidence showed that the relevant negotiations and operations were conducted for TMCSL. Service on TMC was therefore set aside.
4. TMCSL’s application. A freely negotiated non-exclusive English jurisdiction clause created a strong prima facie case for retaining jurisdiction. Departure required a very strong reason, and foreseeable convenience factors could not ordinarily suffice. The existence of parallel Sierra Leone proceedings did not itself provide such a reason.
5. The claimant’s conduct in responding to the Sierra Leone injunction and filing a counterclaim did not amount to a compelling reason to release TMCSL from its contractual bargain. The claimant had raised jurisdiction before the foreign proceedings, challenged it within a reasonable context, and had not acquiesced after extensive procedural progress. TMCSL’s application was dismissed.
6. Anti-suit injunction. The court applied the principles in Deutsche Bank AG v Highland Crusader Partners LP. Parallel proceedings were undesirable but not necessarily vexatious or oppressive. The court had insufficient basis to doubt the quality of justice in Sierra Leone, and comity required caution. The alleged tactical conduct did not make the proceedings independently vexatious or oppressive. The anti-suit injunction was dismissed.