White Rock Corporation Ltd v Middle Volga Shipping Company & Ors

For service out under Civil Procedure Rules 1998, r 6.33(2B)(b), the jurisdiction agreement must be contained in a contract which the defendant is bound by and which the claimant can enforce against it. Rule 6.33(2B)(c) addresses the related quasi-contractual case where a defendant asserts rights under a contract containing an English jurisdiction clause, but disputes that the claimant can rely on it.

The gateway does not permit service without permission merely because a claim is connected with a contract containing a jurisdiction clause. On a jurisdiction challenge, the claimant must establish a good arguable case that the defendant was a contracting party. Where the court can reliably assess the evidence, it applies the relative-strength test. The flexible plausibility limb applies only where reliable assessment is impossible. Here, the documentary and surrounding evidence favoured the named disponent owner as principal, so jurisdiction over the registered owner was unavailable.

White Rock Corporation Ltd claimed approximately US$12.6 million against Middle Volga Shipping Company and North Global Denizcilik Ithalat Ve Ihracat Ticaret Limited Sirketi for alleged breaches of a time charter covering four vessels. The charterparty contained an English jurisdiction clause and identified North Global in the commercial and technical management arrangements.

Middle Volga challenged jurisdiction under CPR Part 11, contending that it was not a party to the charterparty and that North Global was the contractual counterparty. White Rock argued that North Global had contracted as Middle Volga’s agent, relying particularly on delivery protocols referring to Middle Volga as owner. The central issues were the scope of CPR r 6.33(2B) and whether White Rock had a good arguable case that Middle Volga was bound by the charterparty and its jurisdiction agreement.

1. Application allowed. The court declared that it had no jurisdiction to try White Rock’s claim against Middle Volga.
2. CPR r 6.33(2B)(b) requires a good arguable case that there is a contract containing an English jurisdiction term which is binding on the defendant and enforceable by the claimant. Rule 6.33(2B)(c) is directed to the quasi-contractual situation where the defendant asserts rights under such a contract, the claimant disputes the contractual basis, and nevertheless seeks to hold the defendant to the jurisdiction clause. It does not create a general gateway for claims merely relating to a contract to which the defendant is not party.
3. The good arguable case test requires the claimant to show that it has the better of the argument where the court can reliably assess the available evidence. The third limb of the Kaefer formulation applies where the interlocutory material and the nature of the dispute prevent a reliable assessment of relative merits. In that event, a plausible evidential basis may suffice, but speculation about evidence that might emerge at trial is impermissible.
4. The Recap, Q88 forms, invoices, correspondence, the later formal charterparty and the Head Charterparty showed that North Global was acting as principal and disponent owner. The reference to North Global as disponent owner ordinarily indicated a charterer sub-chartering the vessels. The provision stating that the vessels had no Russian connection also told against Middle Volga being the contractual counterparty.
5. The delivery protocols were operational rather than contractual documents. Their references to Middle Volga as owner, and the vessel stamps applied by the masters, did not outweigh the other evidence. There was no convincing proof that North Global was authorised or intended to contract as Middle Volga’s agent. The court would have reached the same conclusion without relying on the Head Charterparty, so the case did not fall within the flexible third limb.
6. The application under CPR r 11(1) was therefore allowed and jurisdiction over Middle Volga was declined. Consequential matters were reserved.