Idemia France SAS v Decatur Europe Ltd & Ors

For jurisdictional challenges, the claimant must establish a good arguable case. The test is applied flexibly and may require the court to assess which party has the better argument, while recognising the limits of interlocutory evidence.

A jurisdiction clause is construed broadly and purposively. A contractual schedule headed as a template will not create an immediately enforceable and independent contract merely because it has been signed, where the surrounding agreement contemplates delivery of a future document. A director may nevertheless be served at a registered service address under Companies Act 2006, s 1140, despite being resident abroad. Physical presence at the moment of service is unnecessary. A stay on forum non conveniens grounds requires cogent evidence that substantial justice will not be done in the foreign forum.

Idemia sought to restrain proceedings brought by Decatur Europe Ltd and Tiger IT Bangladesh Ltd in Bangladesh concerning alleged contractual discounts. It relied on exclusive Swiss jurisdiction clauses in the underlying agreements and on signed Schedule 6 documents said to be cross-guarantees containing English jurisdiction clauses. Jurisdiction was also asserted against Mr Rahman, who was alleged to have procured breaches and conspired with the companies.

The court determined five applications, including jurisdictional challenges, challenges to service, an application for a stay on forum non conveniens grounds, and an application concerning expert evidence. The central issues were whether the Schedule 6 documents were immediately enforceable contracts, whether they conferred English jurisdiction, whether Mr Rahman had been validly served, and whether England was the appropriate forum.

1. Expert evidence. The court granted retrospective permission for the expert evidence. It disregarded parts of the Swiss-law evidence which expressed opinions on contractual interpretation rather than proving foreign-law principles. The proper role of an expert is to prove the rules of construction of foreign law; interpretation of the contract remains for the court.
2. Decatur and Tiger. The underlying agreements contained broad exclusive Swiss jurisdiction clauses. Applying the common-sense presumption in Fili Shipping Co Ltd v Premium Nafta Products Ltd [2007] UKHL 40, the clauses covered disputes about their scope and the related tortious claims. The Deeds of Variation varied, rather than discharged and replaced, the agreements and did not supersede their jurisdiction clauses.
3. The jurisdiction provisions in the Schedule 6 documents would have applied to claims to enforce those documents if they were effective contracts. However, Idemia failed to establish a good arguable case that the documents had independent contractual effect. Article 6.13 and the heading Template indicated that they were documents to be delivered in the future. The surrounding evidence, including the 2015 correspondence, showed that the parties did not regard the guarantees as having already been given. Idemia therefore failed on the jurisdictional gateways against Decatur and Tiger.
4. Mr Rahman. Service at York Way was invalid. Once Idemia had reason to believe that Mr Rahman no longer lived there, Civil Procedure Rules 1998, r 6.9 required reasonable steps to identify his current address or an alternative method of service. Service at Morris Place was valid under Companies Act 2006, s 1140. That provision is a specific statutory code and applies where a director has registered a service address in England, even if he is neither present nor resident there.
5. Mr Rahman nevertheless obtained a stay. England had no sufficient connecting factors. Bangladesh was the available forum with the substantial factual and commercial connections. The evidence did not establish that substantial justice would not be done there.

Decatur’s and Tiger’s jurisdictional challenges succeeded. Mr Rahman’s challenge to service at York Way succeeded, but his challenge to service at Morris Place failed. His application for a stay was granted. Consequential matters, including permission to appeal, were adjourned for determination after the parties had addressed the terms of the order.

First-instance decision. The judgment records earlier permission granted by Robin Knowles J on 15 June 2018 under Civil Procedure Rules 1998, rr 6.36 and 6.37 to serve Tiger out of the jurisdiction, but does not identify an appellate history.