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

For proceedings which remained governed by the Lugano Convention after IP completion day, amended CPR 6.33(3) permitted service outside the jurisdiction without the court’s permission. The later saving for transitional claims under the Judgments Regulation did not reverse that result.

Article 6(2) of the Lugano Convention contains no free-standing test requiring a sufficient connection between the main and third-party claims. Where domestic procedure permits joinder, Article 6(2) confers jurisdiction unless the joinder is an abuse. Jurisdiction is assessed when the third-party claim is issued. It is not lost because the main proceedings later settle. A court may control the admissibility and management of third-party proceedings under domestic procedure, but has no discretion to decline jurisdiction otherwise established by Article 6(2).

CA Indosuez sued Afriquia Gaz SA and Maghreb Gaz SA for payment of invoices said to have been assigned to it. The Buyers had instead paid the invoiced sums into an account held by the seller with UBS Switzerland AG. They issued a Part 20 claim against UBS for restitution under Swiss law, contingent on their liability in the main proceedings.

The Part 20 claim form was issued on 30 December 2020, before IP completion day, and was served in Switzerland in March 2021 without prior permission. The main proceedings were later stayed on confidential settlement terms. Knowles J dismissed UBS’s jurisdiction challenge: [2022] EWHC 2871 (Comm).

UBS appealed, contending that permission was required for service and that Article 6(2) jurisdiction either never arose, was lost on settlement, or should be declined.

1. Appeal dismissed. Phillips LJ, with whom Carr LJ and Sir Geoffrey Vos MR agreed, upheld the Judge’s conclusion on both service and jurisdiction.
2. Amended CPR 6.33(3), read naturally, covered Transitional Claims governed by the Lugano Convention. Parliament had removed the former exclusion of Convention claims while preserving the Convention’s application to such claims. The subsequent saving of CPR 6.33(2) for Judgments Regulation claims could not reverse that clear effect. A permission requirement would be surprising, serve no identified policy purpose, and be inconsistent with the Convention scheme. Gateway 20(a) concerned domestic enactments and did not provide the intended route. Permission was therefore unnecessary.
3. Article 6(2) did not import the express “so closely connected” requirement found in Article 6(1). The close relationship required for third-party proceedings was inherent in domestic rules permitting their joinder. The only additional Article 6(2) control was its express anti-abuse condition. The Court applied [2006] 1 All E.R. (Comm) 488 and [2016] QB 780, and explained that [1990] ECR I-184 concerned the rationale for the jurisdiction, not a separate connection test. The Part 20 claim accordingly engaged Article 6(2).
4. Jurisdiction under Article 6(2) was assessed when the Part 20 claim was issued. Nothing in the Convention permitted jurisdiction validly founded at that date to be lost through later settlement of the main proceedings. Such a rule would undermine certainty and could leave a claimant without a remedy after limitation had expired. [2002] 1 AC 1 strongly supported that conclusion.
5. Article 6(2) determines the competent court. It does not create a discretionary power to decline established jurisdiction. Domestic rules, including CPR 20.9, may determine whether the third-party proceedings are admissible, tried separately, or otherwise managed, provided they do not undermine the Convention’s practical effect. It was unnecessary to determine the Buyers’ alternative CPR 3.10 application.

• Court of Appeal (Civil Division) Dismissed UBS’s appeal and affirmed that service without permission was valid and that Article 6(2) jurisdiction continued despite settlement of the main proceedings: [2023] EWCA Civ 1072.
• High Court, Commercial Court Knowles J dismissed UBS’s jurisdiction challenge: [2022] EWHC 2871 (Comm).