CA Indosuez (Switzerland) SA v Afriquia Gaz SA & Anor

For jurisdiction under Article 6(2) of the Lugano Convention, the essential question is whether there is a sufficiently close connection between the original claim and the third-party proceedings. The inquiry is not subject to an additional requirement of exceptional circumstances merely because the original claim has settled. The court may assess the position both when the third-party claim was issued and when jurisdiction is challenged. Where sufficient connection existed at issue, subsequent settlement or non-participation by another third party does not ordinarily remove jurisdiction, particularly where certainty, predictability and continuity favour retaining it. Transitional amendments to Civil Procedure Rules 1998, rule 6.33(3), permitted service without permission for claims issued before IP completion day where jurisdiction was preserved under the Lugano Convention.

CA Indosuez claimed the purchase price of butane from Afriquia Gaz and Maghreb Gaz. They brought Part 20 claims against Gulf Petrochem and UBS Switzerland concerning payments made into Gulf Petrochem’s UBS account. The claims against UBS included restitution, unjust enrichment and constructive-trust allegations.

UBS challenged service, jurisdiction and the continuation of the claim. The principal issues were whether permission was required to serve the Part 20 Claim Form in Switzerland after IP completion day, whether Article 6(2) of the Lugano Convention conferred jurisdiction over the third-party claim, and whether the claim should be struck out because the experts disagreed about revocation and notice of payment.

1. Service out. Permission was not required. Although rule 6.33(1) was deleted at the end of the implementation period, rule 6.33(3) was widened at the same time. The deletion of the reference to the Lugano Convention removed its exclusion and left the amended rule broad enough to cover claims engaging preserved Lugano jurisdiction. Regulation 18(3A) of SI 2020/1493 did not alter that meaning.
2. Article 6(2). The governing question was sufficiency of connection between the original claim and the Part 20 claim. The relevant connection must be close, and the court must consider whether hearing both claims together promotes the efficient conduct of proceedings and avoids irreconcilable judgments. No separate requirement of exceptional circumstances applied merely because the main claim had settled. The assessment could consider the position when the Part 20 claim was issued as well as later developments.
3. There was sufficient connection when the Part 20 claim was issued. The claims were factually and economically interrelated, contingent on the success of the main claim, and England and Wales was the only forum capable of housing all the disputes. The later settlement of the main claim and Gulf Petrochem’s failure to defend did not change the conclusion. Certainty, predictability and continuity favoured retaining jurisdiction.
4. Strike out. The dispute about whether the payment instructions had been revoked before notice of credit depended materially on the facts and the surrounding correspondence. It should therefore be determined at trial rather than on the strike-out application.
5. The court held that it had and should retain jurisdiction, that permission was unnecessary, and that the Part 20 claim against UBS should proceed to a short trial unless compromised.

Not stated in the judgment.