Idemia France SAS v Decantur Europe Limited

This case concerned competing jurisdictional claims arising from supply and sub‑contracting agreements for a Bangladeshi public procurement contract. The court applied the "good arguable case" test to determine whether the English court had jurisdiction to hear claims founded on the Schedule 6 documents (the so‑called "comfort letters" or guarantees) and whether service on the third defendant was effective.

Key legal principles and holdings:

• The applicable test for interlocutory jurisdictional disputes is the good arguable case test as explained in Brownlie and subsequent authorities (three‑limb formulation).
• Contract interpretation was approached broadly and purposively, taking account of the contractual matrix and applicable (Swiss) law where appropriate.
• The Schedule 6 documents were treated as templates under Article 6.13 of the principal agreements and, on the evidence available at this interlocutory stage, did not establish a sufficiently reliable objective basis to show they had taken independent contractual effect; accordingly Idemia failed to show a good arguable case that the Schedule 6 documents conferred English jurisdiction in place of the Swiss forum clauses.
• Service on the third defendant at a London address described as his "last known residence" was ineffective because, before service, there was reason to believe he no longer lived there; however service at his registered Companies House service address was effective under Companies Act 2006 s.1140.

The claimant, Idemia (a French company), sued Decatur (an English company), Tiger (a Bangladeshi company) and Mr Ziaur Rahman (alleged controller) in England seeking, among other reliefs, an anti‑suit injunction and damages arising from what it contended were unlawful deductions and the pursuit of a Bangladesh action. The underlying commercial contracts between the parties incorporated Swiss law and contained jurisdiction clauses in favour of the courts of Geneva. Each principal agreement also contained a Schedule 6 "Company Guarantee/Comfort letter" template which included English law and English jurisdiction wording; those documents were signed by Mr Rahman.

The claimants sought to found English jurisdiction by treating the Schedule 6 documents as immediately binding cross‑guarantees (bringing English jurisdiction into play under Article 25 of the Judgments Regulation). The defendants challenged jurisdiction and disputed both the contractual effect of the Schedule 6 documents and the validity of service on Mr Rahman. There were multiple interlocutory applications including three defendant jurisdictional challenges, two challenges to service and an application for permission to adduce expert evidence. The judge granted retrospective permission for the experts de bene esse but said inadmissible parts would be disregarded.

The issues the court framed and resolved were:

• Whether the English court had jurisdiction over Decatur and Tiger either by their domicile or because the Schedule 6 documents created binding guarantees with English jurisdiction clauses.
• Whether the Schedule 6 documents (signed as templates and annexed to the principal agreements) had, on objective evidence, come into independent contractual effect.
• Whether service on Mr Rahman at two London addresses was effective (CPR 6.9 on last known residence; Companies Act 2006 s.1140 for service at a registered address).
• Whether, if served, the proceedings against Mr Rahman should be stayed on forum non conveniens grounds.

The court applied the three‑limb "good arguable case" test and principles of contractual interpretation (including the need to consider Swiss law for the main agreements but English law for the putative Schedule 6 contracts). The judge accepted that the Schedule 6 documents were drafted as guarantees and that, read sensibly, they reflected an intention to produce cross‑guarantees; however the judge concluded that Article 6.13 and the "template" heading showed the Schedule 6 documents were intended to be delivered at a future time and not to have immediate independent contractual effect. Evidence (including contemporaneous emails and the circumstances of signing) supported the view that the signatures on the schedules resulted from execution of the main agreements rather than formation of separate guarantees. As a result Idemia failed to establish a good arguable case that the English courts had jurisdiction over Decatur or Tiger based on the Schedule 6 documents, and Decatur and Tiger succeeded in their jurisdictional challenges. The judge held that service on Mr Rahman at the York Way address was ineffective because Idemia had reason to believe he no longer resided there, but that service at Morris Place (his registered service address) was effective under s.1140. Finally the court stayed the proceedings against Mr Rahman on forum non conveniens grounds in favour of Bangladesh.

First instance: The court partially allowed the defendants' jurisdictional challenges. Decatur and Tiger succeeded in their challenges to English jurisdiction: the Swiss jurisdiction clauses prevail and Idemia failed to establish a good arguable case that the Schedule 6 documents had independent contractual effect bringing the dispute within English jurisdiction. Service on Mr Rahman at York Way was ineffective; service at Morris Place (his Companies House service address) was effective under Companies Act 2006 s.1140. Nonetheless the court stayed the proceedings against Mr Rahman on forum non conveniens grounds in favour of Bangladesh because Bangladesh was the more suitable forum for the claims against him.