Dr Markus Boettcher v Xio (UK) LLP (in liquidation) & Ors

For service under CPR rule 6.9(2), a defendant’s ‘last known residence’ may be a former residence and may coexist with other residences. The claimant’s actual or constructive knowledge is assessed at the date of service. A defendant served in England as of right must show that another available forum is clearly and distinctly more appropriate before a stay will be granted. For service out, the claimant must establish a gateway, a real prospect of success and that England is the proper forum. Those requirements were met. Timely jurisdiction applications prevented submission to the jurisdiction, and no material breach of the duty of full and frank disclosure was shown.

The claimant alleged that he had been induced by misrepresentations to enter employment with the first defendant and brought claims in deceit, under the Misrepresentation Act 1967 and for breach of a duty of care. The second and third defendants, who had been served in England and were also the subject of an order permitting service abroad, challenged the court’s jurisdiction.

The applications raised the validity of service at the second defendant’s former London address, submission to jurisdiction, forum non conveniens, the service-out gateways, the merits threshold, the proper forum and alleged non-disclosure on the without-notice application. The central issue was whether England should exercise jurisdiction over the claims.

1. Disposition. The applications by the second and third defendants were dismissed. The court declined to stay the proceedings and held that it had and should exercise jurisdiction over the claims.
2. Service within England. The court distilled six principles governing a defendant’s ‘last known residence’ under CPR rule 6.9(2). The claimant must have a good arguable case that the address was the defendant’s last known residence. It need not be the usual residence, and a defendant may have more than one last known residence. The address may be one at which the defendant no longer resides, but not one at which the defendant never resided. Knowledge includes actual and constructive knowledge and is assessed at the date of service. On the evidence, the claimant had a plausible basis for treating 33SR as the second defendant’s last known residence. His later notification that he lived in Switzerland was irrelevant to the position at the service date.
3. Submission and forum. The defendants had filed applications contesting jurisdiction within the permitted periods. They had therefore not submitted under CPR rule 11(5), and their conduct did not amount to unequivocal common-law renunciation. Applying the two-stage approach in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, Germany was not clearly and distinctly more appropriate than England. The relevant connections were mixed, but the recruitment was for employment with an English company, the employment contract was intended to be governed by English law, and fragmentation of the claims favoured England. The court also found a good arguable case that English law applied under Article 4(1) of the Rome II Regulation.
4. Service out. Although consideration of service out was unnecessary, the earlier order was upheld. No second acknowledgment of service was required. The claimant had a good arguable case under CPR PD 6B, paragraphs 3.1(3) and 3.1(9)(a), a real prospect of success and a sufficient case that England was the proper forum. The court did not need to determine the conference-call issue under paragraph 3.1(9)(b).
5. Disclosure. The alleged omissions on the without-notice application did not amount to a breach of the duty of full and frank disclosure. The court explained that any non-disclosure must concern a substantial matter and that setting aside is generally inappropriate where the alleged facts remain genuinely disputed.

This was a first-instance decision on jurisdiction applications. The judgment records that Waksman J had previously permitted service outside the jurisdiction on the second and third defendants. That order was upheld.