J.P. Morgan International Finance Limited v Werealize.com Limited

An exclusive jurisdiction clause does not ordinarily extend to claims against non-parties merely because they concern the same facts or subject matter. However, a contractual exclusion of liability may carry an implied promise not to sue in a forum that would disregard the exclusion. That promise is distinct from a general covenant not to sue and may be recognised where the contract, read in context, requires it. Quasi-contractual anti-suit relief requires rights derived from, or conditioned by, the relevant contract. A foreign claim will not ordinarily be vexatious or oppressive merely because the foreign court may apply different law or procedure, or because the claim overlaps with disputes subject to an English jurisdiction clause.

Werealize.com Limited and four directors nominated by it sought anti-suit injunctions restraining J.P. Morgan International Finance Limited from pursuing Greek proceedings against the directors. The Greek claims alleged that the directors had intentionally caused loss to J.P. Morgan as a shareholder in Viva by conduct contrary to good morals under Article 919 of the Greek Civil Code.

The claimants relied on contractual rights under a shareholders’ agreement, quasi-contractual principles, and the vexatious and oppressive jurisdiction. J.P. Morgan disputed those bases and challenged the directors’ service and jurisdiction. The central issues were whether the agreement’s no-liability clause implied a promise not to sue in a forum that would disregard it, and whether the directors could invoke the agreement’s exclusive jurisdiction clause.

Anti-suit relief. The directors were entitled to an anti-suit injunction restraining J.P. Morgan from pursuing the Greek proceedings. The injunction rested on an implied term arising from clause 33.1(c) of the shareholders’ agreement.

1. Clause 33.1(c), read in context, was prospective and applied to liabilities arising during performance of the agreement. Its reference to the agreement’s subject matter was broad enough to include claims concerning Viva’s governance, information rights and veto rights.
2. The clause excluded liability in tort or otherwise between the relevant parties and their Representatives. In the circumstances, it also implied a promise not to bring proceedings in a jurisdiction which would not give effect to that agreed exclusion. This was a promise concerning the forum in which a claim could be brought, rather than a general covenant never to sue.
3. Gore v Van der Lann [1967] 2 QB 31 and Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2004] 1 AC 715 did not prevent that narrower implication. The Article 919 claim did not fall within the fraud carve-out in clause 33.2, because fraud was not a necessary averment and intentional harm was not equivalent to fraud.
4. The directors were not parties to clause 42, and clause 42 was not incorporated into the separate contract created by clause 33.3. Clause 38.5 of the Contracts (Rights of Third Parties) Act 1999 arrangement gave no wider right to enforce the exclusive jurisdiction clause.
5. Quasi-contractual relief was unavailable because J.P. Morgan asserted original tortious rights against the directors, not rights derived from the shareholders’ agreement. Nor did the claims against the directors amount to a contractual claim against Werealize.com Limited or a proxy war within the meaning of LLC EuroChem North-West-2 v Tecnimont SPA [2023] EWCA Civ 688.
6. The alternative vexatious and oppressive ground failed. The Greek proceedings were brought against Greek directors concerning conduct of a Greek company, were arguable, and were not shown to have been brought in bad faith. Difference in applicable law or procedure, overlap with English disputes, or the size of the claim was insufficient.
7. The directors’ purported service on J.P. Morgan’s contractual service agent was invalid. Permission to serve out was nevertheless granted for the claim enforcing the clause 33 contract under Practice Direction 6B paragraph 3.1(6)(c). The directors were not entitled to serve without permission under CPR 6.33(2B)(c).

Werealize.com Limited’s contractual, quasi-contractual and vexatious-and-oppressive claims failed. The question of further declarations was left until the final position concerning the Greek proceedings was known.