Noble Caledonia Ltd v Air Niugini Ltd

For service on an overseas company under rule 6.9 of the Civil Procedure Rules 1998, it is insufficient that a local agent sells the company’s products. The question is whether the company carries on its own activities at the agent’s fixed place of business. The court must assess the whole relationship and context, including control, funding, staffing, authority to contract, remuneration and the way the business is presented. An agent may bind its principal without carrying on the principal’s business. Limited contractual authority, commission-based remuneration, shared staff and premises, and the absence of financial control may show that the agent is conducting its own business. Promotional material suggesting representation is relevant but not decisive.

Noble Caledonia claimed damages after an Air Niugini flight failed to carry its clients from Singapore to a cruise departing from Port Moresby. The claim form was personally served on the general manager of Flight Directors Scheduled Services Ltd, Air Niugini’s UK general sales agent.

Air Niugini applied under Part 11 of the Civil Procedure Rules 1998, contending that service was invalid because it had no office or place of business in the jurisdiction. The central issue was whether Flight Directors’ office was a place where Air Niugini carried on its activities for the purposes of rule 6.9.

1. Outcome. The proceedings had not been properly served. Air Niugini would have to be served out of the jurisdiction.
2. Rule 6.9 required the court to determine whether Flight Directors’ office was a place at which Air Niugini carried on its activities or a place of business of Air Niugini. The evidence did not establish that it was Air Niugini’s place of business.
3. The principles in Adams v Cape Industries plc [1990] 1 Ch 433 (CA) applied. The assessment required examination of the whole relationship and context. Relevant matters included who acquired and financed the premises, responsibility for staff and overheads, the degree of control, remuneration, allocation of staff, use of the principal’s name, the representative’s own business, and authority to contract.
4. An agency relationship did not by itself mean that the agent’s business was the principal’s business. Flight Directors acted for several airlines, operated its own business, received commission only, bore its own costs, employed the relevant staff and had little control over pricing or contractual terms. It generally required Air Niugini’s authority before making bookings outside prescribed terms.
5. The use of Air Niugini’s name, business cards, social media, website and promotional events suggested representation to the public, but did not outweigh the other factors. The later dealings concerning the cancelled flight likewise showed that Flight Directors was assisting as agent rather than acting as Air Niugini itself.
6. Saccharin Corporation Ltd v Chemische Fabrik AG [1911] 2 KB 516 (CA) involved an agent with substantially wider authority and provided little assistance in the present factual context. The activities at Flight Directors’ office were therefore those of Air Niugini’s agent, not Air Niugini’s own activities.