Pantheon International Advisors Limited v Co-Diagnostics, Inc

For service out of the jurisdiction without permission under the Civil Procedure Rules 1998, r 6.33(2B)(b), the claimant must have a good arguable case that a binding contract contains an effective jurisdiction clause covering the dispute. The three-limb test requires a plausible evidential basis, a reliable assessment where possible, and, where that cannot be made, plausible contested evidence. The exercise is not a mini-trial. An unsigned contract may nevertheless be binding, depending objectively on the parties’ words and conduct. A quantum meruit claim fell outside the relevant contractual gateway, although that conclusion was obiter. Retrospective permission could be granted where justice required it. A clear contractual ADR process justified a stay.

The claimant, an English company, brought contractual and alternative restitutionary claims against a company based in Utah. It served the claim form and amended particulars out of the jurisdiction without permission, relying on an alleged 2018 agreement containing an exclusive English jurisdiction clause. The defendant challenged jurisdiction, sought to set aside the claim and service, and argued that the alleged agreement had never been concluded. The claimant also relied on a 2016 agreement and sought permission to amend its pleading, but that application was deferred.

The court considered whether the contractual claim satisfied the no-permission service gateway, whether the alternative quantum meruit claim required permission, whether retrospective permission should be granted, and whether proceedings should be stayed to allow contractual ADR.

1. Jurisdiction and contract. The defendant’s jurisdictional challenge was rejected. Under Civil Procedure Rules 1998, r 6.33(2B)(b), the claimant had a good arguable case that the alleged 2018 contract was binding, contained an effective exclusive English jurisdiction clause, and covered the contractual dispute. The absence of the defendant’s signature was not fatal. Objectively assessed correspondence, payment discussions, the absence of any clear continuing negotiation, and evidence of some performance provided a plausible basis for the conclusion.
2. Good arguable case. The court applied the three-limb approach in Brownlie v Four Seasons Holdings Inc [2017] UKSC 80 and Kaefer Aislamientos v AMS Drilling Mexico [2019] EWCA Civ 10. The claimant bore the burden of persuasion. The court was not conducting a mini-trial and did not determine disputed witness evidence or ultimate merits.
3. Alternative permission route. The court held, in any event, that the contractual claim satisfied the gateway in Practice Direction 6B, paragraph 3.1(6), that there was a serious issue to be tried, and that England was clearly the appropriate forum. A contractual choice of English jurisdiction required very strong reasons to be displaced. None existed. The lower merits threshold was subsumed by the good arguable case finding.
4. Quantum meruit. A quantum meruit claim was restitutionary and outside the wording of r 6.33(2B)(b) as it stood when service occurred. It should therefore have required permission. This analysis was expressly obiter because the claimant conceded the point. The contractual claim was not thereby invalidated.
5. Retrospective permission and service. If permission had been required, it would have been granted retrospectively under the court’s discretion and r 3.10. The new and untested procedural rule, absence of real prejudice, limitation concerns, merits, and proportionality favoured that course. No order under r 6.15 or r 6.16 was necessary because the claim had reached the defendant in time.
6. ADR. The proceedings were stayed so that the clear, mandatory ADR process in the alleged 2018 contract could be followed. The outstanding amendment application was left for consequential directions.