Andrew Edward McCarthy v Graham Brian Proctor

On an application to set aside permission to serve proceedings out of the jurisdiction, the claimant retains the burden of establishing the jurisdictional requirements. The application is, in substance, a rehearing, and the court assesses the position when permission was originally granted.

The claimant must show a real prospect of success, a good arguable case within an applicable gateway, and that England and Wales is clearly or distinctly the appropriate forum. Forum conveniens is determined through an evaluative assessment of all relevant circumstances, including connections, evidence, witnesses, applicable law and practical justice.

Implied representations and reliance are ordinarily fact-sensitive. They should not be summarily determined where the contractual arrangements and the circumstances of formation require examination at trial.

The claimant sought to pursue claims in negligent misrepresentation and restitution against a Welsh businessman concerning the payment of €950,000 for an alleged beneficial interest in a villa in Spain. Permission to serve the claim form out of the jurisdiction had been granted without notice.

The defendant applied to set that order aside, arguing that the negligent-misrepresentation claim had no real prospect of success, Spain was the appropriate forum, and the claimant had failed to make full and frank disclosure. The dispute required consideration of the parties’ agreements, the Spanish property, the evidential connections with England and Spain, and the risk that proceedings in Spain might be time-barred.

1. Outcome. The application was dismissed. Permission to serve out of the jurisdiction was confirmed.
2. Applicable test. The claimant bore the burden of showing a real prospect of success, a good arguable case within an applicable gateway, and that England and Wales was clearly or distinctly the appropriate forum. The defendant’s application was effectively a rehearing, so the fact that permission had previously been granted placed no persuasive burden on the defendant.
3. Negligent misrepresentation. The claim was not summarily hopeless. Whether the defendant’s conduct implied a representation that he had power to deal with the Spanish villa, and whether the claimant relied on it, required examination of the circumstances in which the agreement was made. A representation need only be an operative cause of conduct; it need not be the sole cause. The contractual context might ultimately prevent implication of a representation, but that issue was unsuitable for summary determination on the evidence available.
4. The pleaded good-faith representation raised a different issue. A representation that a person held a belief in good faith, if false, was in the nature of an allegation of deceit rather than negligent misrepresentation. The judge invited the parties to consider the consequences, as no claim in deceit had been pleaded.
5. Forum conveniens. England and Wales was clearly the most suitable forum. The parties were British, neither was domiciled in Spain, the principal witnesses were English-speaking, and the critical communications had taken place in English. The claimant lived in Wales, the defendant’s asserted inconvenience was unpersuasive, and the parties’ lawyers were already familiar with the dispute. Spanish law and evidence were relevant but not decisive. The risk of limitation in Spain also supported practical justice.
6. Full and frank disclosure. The claimant’s failure to refer to earlier agreements and Spanish bank accounts did not amount to a material breach requiring discharge of the order. The agreements did not reasonably create doubt about permission to serve out, and there was no sufficient basis for inferring deliberate non-disclosure.

Not stated in the judgment.