G I Globalinvestment Limited & Anor. v VP Fund Solutions (Luxembourg) SA & Ors.

For service out of the jurisdiction, the claimant must show a good arguable case within a gateway, a serious issue to be tried, and that England is clearly or distinctly the appropriate forum. At the interlocutory stage, the court should ordinarily avoid resolving difficult or developing questions of law on assumed facts.

In unlawful means conspiracy, intended injury need not be identical to the loss ultimately suffered. It may consist of being deprived of an opportunity to make an informed decision, where that deprivation is alleged to have secured financial benefits for the conspirators. Knowledge of the facts making conduct unlawful is required, but knowledge of its legal unlawfulness is not.

An exclusive jurisdiction clause under the Brussels Recast regime requires a consensus clearly and precisely demonstrated. Conflicting contractual documents may fail to establish that consensus.

Italian investors brought claims arising from losses on investments in the Skew Base Fund. The only claim against VP Fund Solutions (Luxembourg) SA and VP Fund Solutions (Liechtenstein) AG was unlawful means conspiracy.

VP Liecht challenged jurisdiction and sought to set aside permission to serve the claim out of the jurisdiction. VP Lux contended that the claims belonged in Luxembourg under exclusive jurisdiction clauses and disputed the application of the Brussels Recast regime.

The court considered whether the conspiracy claim disclosed a serious issue to be tried, whether the relevant gateway and forum requirements were met, whether the contractual documents established exclusive jurisdiction in Luxembourg, and whether there had been material non-disclosure on the ex parte service-out application.

1. VP Liecht. The claim disclosed a serious issue to be tried and a good arguable case within the necessary or proper party gateway. England and Wales was clearly and distinctly the appropriate forum. The service-out order was therefore properly granted.
2. The essential elements of unlawful means conspiracy are combination, use of unlawful means, intention to injure and actual loss caused by the unlawful acts. A claimant need not show that the intended injury and the loss ultimately suffered were identical, but must establish factual causation between the unlawful acts and the recoverable loss. The claimant may rely on inferences, particularly at an early procedural stage.
3. A conspirator need not know that the conduct is legally unlawful, but must know the facts which make it unlawful. Intention to injure may be directed at a class of persons of whom the claimant is one.
4. The pleaded allegation that the defendants used unlawful means to deprive the investors of independent advice, thereby inducing investments which generated fees, was strongly arguable as an intention to injure. The eventual diminution in investment value was not the only possible injury. It was appropriate to leave the difficult legal issue for trial rather than decide it summarily on hypothetical facts.
5. VP Lux. The Letter Agreement contained a formally and materially valid jurisdiction clause, but its scope was confined to disputes concerning the subscription commitment. It did not extend to disputes arising from the investment after subscription. The later subscription documents contained no exclusive jurisdiction clause. Their conflicting provisions did not demonstrate consensus clearly and precisely, as required by article 25 of the Brussels Recast regime.
6. It was unnecessary to decide whether MDM was a consumer. Since the conspiracy claims against the other defendants were to proceed in England, it was expedient under article 8(1) to hear the claim against VP Lux here.
7. The alleged non-disclosures did not justify setting aside service. The undisclosed jurisdiction provisions were only marginally relevant to VP Liecht. The emails were not shown to establish the alleged knowledge. The profitable investments should preferably have been disclosed, but their omission was immaterial to the jurisdiction decision and would not have altered the outcome.
8. The applications were dismissed and the claims against both VP defendants were permitted to continue in the Commercial Court.