Dili Advisors Corp & Anor v Production Investment Management Ltd & Ors

On an application to set aside service out of the jurisdiction, the claimant must establish a serious issue to be tried, a good arguable case within a relevant jurisdictional gateway, and that England and Wales is the proper place for the claim.

The good arguable case test requires a plausible evidential basis for the gateway and, where possible, a reliable assessment of the better argument. The test remains flexible where the court cannot reliably resolve an interlocutory evidential dispute.

Foreign limitation issues may be determined summarily where the expert evidence is complete and the point is one of construction. A claimant’s subjective belief about applicable law does not constitute a valid reason for extending Ukrainian limitation periods.

The claimants alleged fraud, breach of contract, dishonest assistance, knowing receipt and conspiracy arising from investments in a Ukrainian land-development project, a personal loan and aircraft arrangements. They sought to serve the fourth to sixth defendants outside the jurisdiction.

Permission had been granted on the papers. The defendants applied to set aside the service order, alternatively to strike out claims. The court considered whether there was a serious issue to be tried, whether the pleaded claims fell within the relevant gateways in Practice Direction 6B, whether foreign limitation periods defeated parts of the claims, and whether England was the proper place for the proceedings.

1. Applications allowed. The orders permitting service out of the jurisdiction were set aside.
2. The claimants failed to establish a good arguable case that oral English jurisdiction and governing-law agreements had been made in relation to the project, personal-loan or aircraft claims. The absence of contemporaneous documentation, the parties’ relationship, the later settlement draft and the inconsistencies in the aircraft claim materially weakened the evidence.
3. The court applied the flexible good arguable case approach described in Brownlie v Four Seasons Holdings Inc [2017] UKSC 80, as adopted and explained in Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10. The claimants had not shown the required plausible evidential basis or the better argument.
4. The pre-2009 tort claims were governed by Ukrainian or Monegasque law under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995. The claimants failed to show the clear preponderance of factors required to displace that result under section 12. The post-2009 tort claims were likewise not shown to have an English governing law under Rome II.
5. Claims governed by Ukrainian law were outside the three-year limitation period. A subjective belief that English law applied was not a valid reason under Article 267(5) of the Ukrainian Civil Code. Claims governed by Monegasque law were outside the five-year period, and the alleged promises to repay did not establish a realistic case of tacit waiver under Article 2073 of the Monegasque Civil Code.
6. There was no serious issue to be tried in relation to the declaration, the claims against the sixth defendant, the alleged implied repayment term, or the post-2008 claims against PIML. The evidence concerning the sixth defendant did not establish a realistic case of dishonest assistance, knowing receipt or conspiracy, particularly the necessary dishonest state of mind.
7. The project claims were not claims made “in respect of” the English share-sale agreements for Gateway 6. The agreements formed part of the investment structure, but the claims asserted rights arising from the alleged oral joint venture and alleged wrongdoing.
8. England was not the proper place for trial. The principal connections were with Ukraine and Monaco, the alleged wrongdoing and harm concerned Ukraine, and the evidence did not establish a clear and cogent real risk of substantial injustice in Ukrainian proceedings.