AMT Futures Ltd v Boural & Ors

An exclusive jurisdiction clause ordinarily requires relevant proceedings to take place only in the chosen courts. It therefore implies an obligation not merely to refrain from commencing proceedings elsewhere, but also to discontinue proceedings begun in breach of the clause. The continued existence and pursuit of those proceedings may constitute a continuing breach, accruing from day to day.

For limitation purposes, a claimant may recover for breaches occurring within the applicable limitation period. Separate procedural steps may also amount to successive, independent breaches. Particulars of claim need identify the alleged breaches and their timing sufficiently to show that a non-time-barred claim is advanced; precision as to the exact moment is not essential.

AMT Futures Ltd brought claims against former clients who had commenced and continued proceedings in Germany, alleging breach of an exclusive English jurisdiction clause and contractual indemnity obligations. The German proceedings had begun in May 2008 and remained on foot.

The First to Third Defendants applied under CPR 24.2 for summary judgment, contending that the contractual claims accrued once and for all when the German proceedings were commenced and were therefore barred after six years. AMT Futures argued that the clause prohibited both commencement and continuation, creating continuing or successive breaches within the limitation period. The central issue was the proper construction of the jurisdiction clause and the resulting limitation position.

1. Summary judgment. The limitation issue involved no factual enquiry and was suitable for determination under CPR Part 24. The court applied the approach that a claim with a realistic prospect of success should proceed, while a short and properly argued point of law or construction should be decided summarily.
2. Accrual and continuing breach. Time begins when the cause of action is complete, namely when an action could first be brought. A contractual cause of action is complete on breach, even before substantial damage. In the case of a continuing contractual breach, the claimant may recover for the part occurring within six years before proceedings were brought.
3. Construction of clause 33. The reference to the exclusive jurisdiction of the English courts, read in its commercial context, required relevant proceedings to be pursued in England and not elsewhere. It therefore prohibited both commencing and continuing proceedings in another forum and required them to be brought to an end. The clause did not merely prevent the initial issue of proceedings.
4. The continued existence of proceedings in another forum was prima facie a continuing breach. In addition, each further act taken in pursuit of those proceedings was capable of constituting a further independent breach, because the Applicants could choose to bring the proceedings to an end.
5. The policy of limitation did not require a different construction. Recovery remained confined to events within the six-year period. The court also rejected the submission that delay in suing on the original breach waived the right to complain of later prosecution; Sanders v Coward concerned waiver of the right to treat a breach as repudiatory, not waiver of a damages claim.
6. The amended pleading identified the relevant steps with sufficient precision and was capable of disclosing a non-time-barred claim. It should, however, have pleaded the express and implied obligations relied upon, so that the real issues were clear. That defect was curable and did not justify summary judgment.
7. The summary judgment application was dismissed. It was unnecessary to determine the limitation position of the contractual indemnity claims.

First instance decision. No appellate history was stated in the judgment.