Coward v Ambrosiadou

For service out of the jurisdiction, the claimant must establish a plausible evidential basis for the relevant jurisdictional gateway, show that England is clearly the proper forum, and demonstrate a serious issue to be tried. The court must assess the available evidence pragmatically, but a contested allegation unsupported by a plausible evidential basis will not suffice. A later agreement may replace an earlier agreement where construction of the later agreement, viewed objectively and in context, shows that it superseded the earlier arrangement. An implied choice of law or jurisdiction requires necessity, obviousness or equivalent contractual coherence; it cannot be inferred merely from an earlier agreement governed by English law. The court also considered issue estoppel, abuse of process, limitation and termination arguments.

The defendant applied under CPR Part 11 for a stay or dismissal of claims for breach of alleged oral agreements, fiduciary duty and associated relief. The claimant alleged that he and the defendant had agreed in 1992 to share profits equally, and in 2006 to divide them 40:40:20 between themselves and their son. He relied on those agreements to establish gateways for service out of the jurisdiction.

The court considered the evidential basis for the alleged agreements, their place of contracting, governing law, jurisdiction, enforceability, issue estoppel, forum, stay, serious issue to be tried, limitation and abuse of process.

1. Jurisdictional test. The claimant bore the burden of establishing the relevant gateway, a good arguable case understood through the flexible three-limb approach in Brownlie v Four Seasons Holdings International [2017] UKSC 80 and Kaefer Aislamientos SA v AMS Drilling Mexico SA [2019] EWCA Civ 10. He had to provide a plausible evidential basis, enable the court to reach a reliable view where possible, and otherwise show a plausible contested basis where reliable assessment was impossible.
2. The claimant failed to establish a plausible evidential basis for the alleged 50/50 agreement. His present case materially differed from his evidence in the English IP proceedings and from the case advanced in the Cyprus Moltke proceedings. There was no contemporaneous evidence or evidence of performance of the alleged 50/50 agreement, and the inherent probabilities did not support it.
3. Had the 50/50 agreement been established, the judge would have found it made in England and most closely connected with England under Article 4 of the Rome Convention. The alleged obligation to ensure payment was not a promise to answer for another person’s debt within section 4 of the Statute of Frauds 1677.
4. The 40/40/20 agreement had a plausible evidential basis, but, on the assumed premise that the 50/50 agreement existed, it replaced rather than merely varied it. The changed proportions, addition of the son, radically altered corporate and trust structures, and severance of links with England made it artificial to treat the later agreement as a mere variation.
5. The 40/40/20 agreement was not plausibly governed by English law and contained no plausible implied English jurisdiction clause. Applying the Rome Convention, its connecting factors pointed to Cyprus. The court also considered that England was not clearly the appropriate forum because the parties and important documents were abroad.
6. The issue-estoppel, limitation and abuse-of-process arguments did not independently defeat the claim at the jurisdictional stage. However, relitigation of the 40:40:20 claim after discontinuance of the Cyprus Moltke proceedings would have presented a cogent abuse-of-process argument. It was unnecessary to decide that issue.
7. The court therefore concluded that it lacked jurisdiction to hear the claim.