Agrofirma Oniks LLC & Anor v ABH Ukraine Limited & Ors

For service under CPR Part 6.33(2B), the claimant must establish a good arguable case that the claim falls within the relevant gateway. The intended defendant must be a party to, or bound by, the contract containing the jurisdiction clause. The claimant need not necessarily be a party to that contract, but the contract must be foundational to the claim and contain jurisdiction for the claim asserted.

There is no separate merits threshold for Part 6.33(2B), although the court may consider exceptionally weak merits when deciding under Part 11 whether to exercise jurisdiction. A late amendment cannot be used to circumvent procedural orders or unfairly deprive defendants of an opportunity to respond. Where service and the claim form are set aside, a fresh claim is required.

The claimants held interests in loan participation notes and brought claims against the first and second defendants. The first and second defendants applied to set aside the claim form, service, and extensions of time for service, and sought declarations that the court had no jurisdiction.

Shortly before the hearing, the claimants applied to amend their claim to advance a derivative claim on a different basis. The court considered whether the original claims fell within CPR Part 6.33(2B), and whether the late amendment should prevent the jurisdiction challenges from being determined.

1. Original claims. The claimants had to show, against each defendant, a good arguable case that the claim fell within CPR Part 6.33(2B). This required a plausible evidential basis, with the claimant having the better of the argument where the gateway was disputed.
2. The intended defendant must be a party to, or at least bound by, the contract containing the jurisdiction clause. The claimant need not necessarily be a party to that contract. Claims by an assignee, successor in title, and possibly a derivative claimant may fall within the gateway. The point was left open beyond those examples.
3. A claim is at least minimally “in respect of” a contract where the claimant must plead and prove that contract to establish the claim. The contract must contain jurisdiction for the claim asserted against the intended defendant.
4. The original claim against the first defendant could not proceed because that defendant was not party to any contract with the claimants and owed them no relevant payment obligation. The claim against the second defendant also failed the gateway. The claimants were not parties to the note documentation, were not the relevant Noteholders or depository, and were subject to contractual provisions restricting direct enforcement. There was also no evidence that the second defendant had received sums for which it failed to account.
5. The judge’s provisional view was that Part 6.33(2B) contains no separate merits threshold, since permission to serve out is unnecessary and merits are ordinarily left to the substantive hearing. That view was not necessary to the result. Under Part 11, however, a defendant may argue that the merits are so weak that jurisdiction should not be exercised.
6. The late amendment could not fairly be determined at the hearing. It raised substantial factual and legal issues, and allowing reliance on it would circumvent the earlier requirement for security of costs and unfairly deprive the defendants of an opportunity to respond.
7. Service and the claim form were set aside against the first and second defendants. The claim remained live against the third and fourth defendants. The claimants must commence fresh proceedings if they wished to pursue a claim against the first or second defendant. The defendants received their costs, with indemnity costs for the jurisdiction and adjournment applications and standard costs otherwise. The total costs were assessed at £580,000, and the earlier security order was discharged.