Gela Mikadze & Anor v Dechert LLP & Ors

Permission to serve proceedings out of the jurisdiction requires proof of three matters: a serious issue to be tried, a good arguable case that a jurisdictional gateway applies, and England as the clearly or distinctly appropriate forum.

The serious-issue inquiry applies the summary judgment standard. The pleaded facts are generally taken as true unless demonstrably untrue or unsupportable. A good arguable case requires a plausible evidential basis for the relevant gateway, with the court taking a view on disputed facts where it can reliably do so.

Gateway 3 is satisfied where the foreign defendant would have been a necessary or proper party to proceedings against a defendant within the jurisdiction, because the claims are closely connected and arise from the same underlying investigation or wrongdoing. An existing or proposed submission to the jurisdiction may materially inform the court’s discretion.

The claimants alleged that the defendants participated in an unlawful hacking campaign directed at confidential, privileged and private information. They sought relief concerning information allegedly stored on devices, including a laptop belonging to the third and fourth defendants, who were based in the United States.

The claimants applied for permission to serve the third and fourth defendants out of the jurisdiction. The defendants disputed whether there was a serious issue to be tried and whether the claim satisfied the jurisdictional gateways in paragraph 3.1 of Practice Direction 6B. The central issues were whether Gateway 3 applied, whether England was the appropriate forum, and whether the defendants had submitted to the jurisdiction through related proceedings.

1. The application for permission to serve the third and fourth defendants out of the jurisdiction was granted. England was accepted to be the forum conveniens.

2. The court applied the established three-stage test: a serious issue to be tried; a good arguable case that the claim falls within a gateway in paragraph 3.1 of Practice Direction 6B; and England as the appropriate forum for the litigation.

3. The claimants established a serious issue to be tried. Their case was based on pleaded inferences arising from a clandestine hacking campaign. Such inferences were not mere speculation. The fact that the alleged wrongdoing was difficult to particularise did not deprive the claim of a real prospect of success. The court assessed the claim on the pleaded facts and excluded evidence which it considered unfair to introduce at the hearing.

4. The claimants established a good arguable case under Gateway 3. The claims against all defendants arose from the same alleged hacking campaign and investigation, involved interconnected roles, and concerned information potentially stored on the devices. The fact that different devices related to different defendants did not remove the necessary connection. Stays affecting claims against other defendants did not prevent reliance on Gateway 3 where there was liberty to restore those claims and an intention that they continue.

5. The court did not need to determine the other gateways. It expressed doubt that Gateways 9 and 21 were established because there was insufficient evidence of damage sustained within the jurisdiction. Gateway 11 was also problematic because the status of confidential information as property was legally uncertain.

6. The defendants’ related proceedings and willingness to accept jurisdiction for disclosure applications supported exercising the discretion in favour of service out, so as to achieve justice between the parties.