Apex Global Management Ltd & Anor v Global Torch Ltd

A party wishing to invoke an exclusive jurisdiction agreement must raise the issue promptly. Under Civil Procedure Rules 1998 Part 11, failure to apply within the prescribed time ordinarily amounts to acceptance of English jurisdiction. A late application is governed by relief-from-sanctions principles, requiring consideration of the seriousness of the default, any good reason, and all the circumstances. A party disputing the authenticity of the contract may reserve its jurisdictional position; it cannot wait until after judgment. A stay may also be refused where the applicant has submitted to the English jurisdiction, lacks standing, would not submit to the foreign court, or where further proceedings would be pointless or impractical.

The appeal arose from a dispute concerning shares in Fi Call Limited and competing versions of a share purchase agreement. In proceedings under section 994 of the Companies Act 2006, Hildyard J’s main judgment, reported at [2015] EWHC 3269 (Ch), found for Global Torch and ordered the appellants to account for $6.7 million plus interest. The appellants were later struck out and debarred from defending. They applied for a stay based on a Saudi exclusive jurisdiction clause contained in the version of the agreement accepted by the judge. Hildyard J refused the stay on 30 November 2015. The appeal concerned the timing of the application, the correct approach to the clause, and its construction.

The Court of Appeal dismissed the appeal. The lateness of the application was itself dispositive.

1. Timing. CPR Part 11 applied to the application. An application should ordinarily be made within 14 days after filing an acknowledgement of service, failing which the party is treated as having accepted the English court’s jurisdiction. The principles in Texan Management v Pacific Electric Wire & Cable Co Ltd [2009] UKPC 46, Zumax Nigeria Limited v First City Monument Bank Plc [2016] EWCA Civ 567, Salford Estates (No 2) Ltd v Altomart Ltd [2015] 1 WLR 1825 and Le Guevel-Mouly v AIG Europe Limited [2016] EWHC 1794 (QB) established that a late application is governed by relief-from-sanctions principles. Applying Denton v TH White [2014] 1 WLR 3926, the default was serious and significant, there was no good reason, and refusal was just in all the circumstances.
2. Jurisdictional reservation. The appellants should have raised the issue when the respondent’s version of the agreement became known, or at the latest when Mr Al Shehri’s witness statement disclosed the clause. They could have reserved their position while disputing the agreement’s authenticity. Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40 identified what kind of challenge attacks a jurisdiction clause, but did not justify delaying the challenge until after judgment.
3. Additional grounds. The approach to foreign exclusive jurisdiction agreements was settled by Donohue v Armco [2001] UKHL 64. The decision whether to grant a stay was discretionary, and the judge had not adopted an erroneous approach. The clause would in theory have covered the claim, but the appellants had been debarred, had submitted to or waived reliance on the English jurisdiction, and had represented that the dispute would be determined in England.
4. Other circumstances. The appellants’ conduct, the absence of any real indication that they would submit to the Saudi courts, the pointlessness of a retrial, and the practical overlap with issues already determined in England were strong reasons against a stay. Regard had to be had to all the circumstances, as stated in The El Amria [1981] 2 Lloyd’s Rep 119. The appeal was dismissed.

1. Court of Appeal (Civil Division): The appeal against refusal of a stay was dismissed, with written reasons following the hearing.
2. High Court of Justice, Chancery Division, Companies Court: Hildyard J gave the main judgment in favour of Global Torch, reported at [2015] EWHC 3269 (Ch), and subsequently refused the appellants’ stay application on 30 November 2015.