Seraphine Limited v Mamarella GmbH

For service out of the jurisdiction under CPR 6.33(2B)(b), the claimant must establish a good arguable case that the relevant jurisdictional gateway applies. This requires a plausible evidential basis showing the claimant has the better argument. If the court can reliably resolve a factual or other issue on the available material, it should do so using judicial common sense and pragmatism. Where it cannot, a plausible but contested evidential basis may suffice.

Where standard contractual terms govern later orders, an exclusive jurisdiction clause may provide the gateway even if the orders do not expressly refer to those terms. The evidential burden remains on the claimant. Insufficient evidence that earlier online orders incorporated earlier terms will prevent reliance on those terms for service out.

Seraphine claimed that Mamarella had breached contractual terms by selling maternity clothing said to infringe Seraphine’s unregistered design rights. Seraphine served the proceedings in Germany without permission, relying on CPR 6.33(2B)(b) and an exclusive English jurisdiction clause in terms signed in 2021.

Mamarella challenged jurisdiction and sought a stay. Seraphine also applied to amend its pleadings to rely on 2015 and 2019 terms and additional designs. The central issues were whether the 2021 terms generated contracts containing the jurisdiction clause, whether the earlier terms had been incorporated through an online ordering platform, and whether the proposed amendments should be permitted.

1. Service under the 2021 terms. Seraphine was entitled to serve the proceedings outside the jurisdiction without permission. The applicable test under CPR 6.33(2B)(b) was the good arguable case test stated in Four Seasons Holdings Inc v Brownlie and Goldman Sachs International v Novo Banco SA, and explained in Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV. [2017] UKSC 80 [2018] UKSC 34 [2019] EWCA Civ 10
2. The court had to assess whether Seraphine had a plausible evidential basis showing that it had the better argument. The 2021 terms had been negotiated for future sales. Read as a whole, clause 2 gave rise to a good arguable case that Mamarella’s orders were subject to the terms unless Seraphine agreed otherwise. Accepted orders therefore gave rise to contracts incorporating the exclusive jurisdiction clause. Seraphine’s construction was also supported by the wording and commercial purpose of clauses 2 and 3.
3. The alternative reliance on the 2015 and 2019 terms failed. The evidence concerning incorporation through the TradeWeb platform was hearsay, unsupported by identified sources or documentary evidence, and did not establish that Seraphine had the better argument. Permission was therefore refused for amendments dependent on those terms. An additional design was also withdrawn in response to a limitation objection.
4. It was accepted that only natural persons could be designers under Article 14 of Regulation 6/2002. Seraphine was required to plead who the designers were and how it claimed ownership of the design rights. Permission was not granted to amend a confidential schedule that had not been provided to the court or the defendant.
5. Mamarella withdrew its forum non conveniens stay application. The remaining case-management stay application was not determined. The parties were directed to agree an order, with directions for a defence expected after the Munich proceedings and liberty to restore the stay application.

First-instance decision. The judgment records applications concerning service out of the jurisdiction, amendments to the pleadings, expert evidence and a stay. No prior judgment appealed from is stated.