ED&F Man Capital Markets Ltd v Come Harvest Holdings Ltd & Ors

Permission to serve proceedings out of the jurisdiction requires: a serious issue to be tried; a good arguable case within a jurisdictional gateway; and a conclusion that England and Wales is the proper place for the claim.

In multi-defendant litigation, avoiding multiplicity and inconsistent judgments may carry substantial weight, especially where the claims concern an overarching conspiracy and require a single forum. A claimant’s earlier intention to sue a foreign defendant abroad does not prevent a later change of position where it never had a straightforward choice of one forum for all defendants and was contractually required to sue other defendants in England.

The court may preserve an order granting permission to serve out where the underlying case remains materially the same and any improper material can be removed, applying the overriding objective.

ED&F Man Capital Markets Ltd brought claims concerning alleged fraud involving forged warehouse receipts and sought permission to join and serve Straits (Singapore) Pte Ltd in Singapore. Permission was granted ex parte on 23 November 2018.

Straits applied under CPR Part 11 to challenge jurisdiction and to set aside that order. It relied particularly on ED&F Man’s earlier Singapore pre-action disclosure proceedings, arguing that they reflected a choice to pursue substantive proceedings in Singapore and that material obtained there had improperly been used in England.

The Singapore High Court restrained use of the relevant material but refused an anti-suit injunction. The central issues were whether the English order should be set aside and whether England was the proper place for the claims against Straits.

1. Order granting permission to serve out. The use of material obtained in Singapore in breach of an implied undertaking did not require the order of 23 November 2018 to be set aside. The material had been redacted, the underlying causes of action and case remained materially the same, and the court could permit service of the redacted documents. Setting aside the order only to re-grant permission would serve no useful purpose and would be inconsistent with the overriding objective. If the jurisdiction challenge failed, the order should stand.
2. Applicable jurisdictional requirements. The court applied the three requirements restated in AK Investments v Kyrgyz Mobil [2011] UKPC 7: a serious issue to be tried; a good arguable case within a jurisdictional gateway; and a discretionary conclusion that England and Wales is the proper place for the claim. The first requirement and the necessary or proper party gateway were accepted.
3. Proper forum. Applying the forum conveniens approach in Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460, the court gave considerable weight to trying the multi-defendant litigation in one forum. The claims alleged an overarching conspiracy, required common consideration of evidence and documents, and created a risk of inconsistent judgments if split between jurisdictions.
4. The reasoning in Lungowe v Vedanta Resources plc [2019] UKSC 20 did not require a different result. Unlike that case, the claimant had no straightforward choice between England and Singapore for all claims, because the Master Agreements required claims against two defendants to be brought in England. Its earlier intention to sue Straits in Singapore did not prevent a change of mind.
5. The court also considered governing law. The direct damage for the unlawful means conspiracy occurred in England because payment was made and the allegedly forged receipts were received there. English law therefore governed under Article 4(1) of the Rome II Regulation. Article 10(1) likewise pointed to English law for the unjust enrichment claims. These factors supported England, although multiplicity was more significant.
6. Straits’ jurisdiction challenge and its separate challenge to the order of 23 November 2018 were dismissed.