Helice Leasing S.A.S v PT Garuda Indonesia (Persero) TbK (Rev 1)

For service at a company’s place of business, the company may be held to the address publicly recorded at Companies House until the change is published. A party cannot rely on an unpublished change to defeat service where the public record represented that the address remained a place of business.

Where a contract contains a broadly drafted arbitration clause, an event-of-default provision referring to court action may operate within the arbitration agreement rather than create a unilateral right to litigate. Whether an event of default has occurred is itself a dispute for the arbitrator. A refusal to pay may constitute a dispute even where liability was previously acknowledged.

A forum non conveniens applicant must identify the issues and show that another available forum is clearly or distinctly more appropriate.

The claimant, a lessor, brought proceedings against the defendant lessee for unpaid rent and related sums under an aircraft operating lease. The defendant applied to set aside service, sought a stay in favour of arbitration under the lease, and sought a stay on the ground that Indonesia was the more appropriate forum.

The claim form had been served at the defendant’s former Hammersmith address, which remained the address publicly recorded at Companies House when service occurred. The defendant had filed a change to a Hounslow address, but that change had not yet been published. The central issues were whether service was valid or should be retrospectively validated, whether the claims fell within the arbitration agreement, and whether Indonesia was clearly or distinctly the more appropriate forum.

1. Service. Service at the Hammersmith address was valid under CPR r.6.9(2)(7). The defendant’s public filing represented that the address was its place of business, and the defendant remained bound by that representation until the change was published. The risk of the interim delay in updating the public record fell on the company. The existence of two addresses during that period did not prevent service at either address.
2. The court also held, in the alternative, that any defect would have been cured under CPR r.6.15. There was good reason because the claim form had reached the defendant, the defendant acknowledged service and issued its jurisdiction application, the claimant relied on the public record, and the defendant raised no objection until after the service period expired. Retrospective extensions under CPR r.7.6 and dispensation under CPR r.6.16 would likewise have been available if necessary.
3. Arbitration. Clause 15.2 required disputes arising out of or connected with the lease to be referred to LCIA arbitration. Clause 13.2 did not create a separate right to litigate claims for enforcement or damages in court. Properly construed, “court action” referred to action within the agreed arbitral mechanism. Whether an event of default had occurred was a dispute within clause 15.2 and could not be determined by the court on a preliminary assessment of which party had the better argument. The indemnity claim also fell within the arbitration agreement.
4. A refusal to pay created a dispute for the purposes of the arbitration agreement, notwithstanding the defendant’s earlier acknowledgment that sums were owed. The court followed the reasoning in Exfin Shipping v Tolani and found no inconsistency with Halki Shipping v Sopex.
5. Forum non conveniens. The defendant had not identified any particular disputed issues that would be more appropriately tried in Indonesia. The relevant contractual and linguistic connections, and the practical factors, did not show that Indonesia was clearly or distinctly the more appropriate forum. The application would therefore have been dismissed.
6. The proceedings were stayed under section 9 of the Arbitration Act 1996 in favour of arbitration.

First-instance decision of the High Court (Commercial Court). No appellate history is stated in the judgment.