Francis Joseph Campeau v Gottex Real Asset Fund 1 (OE) Waste SÀRL

For service out of the jurisdiction under CPR r. 6.33(2B), a claimant need not necessarily be a party to the contract containing the jurisdiction clause. The foreign defendant must be a party to the relevant jurisdiction clause under sub-paragraphs (a) and (b), and the claim must fall within the clause’s scope. The claimant must establish a good arguable case; where the issue is one of contractual construction, this ordinarily requires the better argument on the material before the court.

An exclusive jurisdiction clause may, on ordinary contractual principles, extend to disputes involving identified third parties benefiting from the contract. A third party enforcing contractual rights under the Contracts (Rights of Third Parties) Act 1999 must generally comply with a relevant jurisdiction clause, although reliance on the contractual right defensively in proceedings brought elsewhere is not subject to that clause.

Mr Campeau sought declarations, an injunction and damages concerning proceedings brought against him by OE Waste in Luxembourg. He relied on clause 10.3 of a sale and purchase agreement, which restricted claims by OE Waste against identified target companies and their directors, officers, employees and agents, and on clause 18.2, which conferred exclusive jurisdiction on the courts of England and Wales.

Mr Campeau served his English claim in Luxembourg without permission under CPR r. 6.33(2B). OE Waste challenged the jurisdiction of the English court, arguing that Mr Campeau was not a party to the agreement and could not rely on its jurisdiction clause. The central questions were whether his claims fell within clause 18.2 and whether the 1999 Act required him to enforce third-party rights subject to that clause.

1. Application dismissed. OE Waste’s challenge to service out without permission failed. The validity of the Claim Form was extended to permit Mr Campeau, if advised, to seek permission to serve out and retrospective validation.
2. CPR r. 6.33(2B)(a) requires the court to have power to determine claims within the scope of the 2005 Hague Convention and the foreign defendant to be a party to the exclusive choice of court agreement. The provision does not require the claimant to be a party. The same principle applies to sub-paragraphs (b) and (c), although the foreign defendant must be a party to the jurisdiction clause and the claims must fall within its scope.
3. The relevant standard was a good arguable case. For issues of law or contractual construction, that required the party invoking the rule to have the better argument on the material before the court.
4. On ordinary principles of contractual construction, clause 18.2 was sufficiently wide to cover disputes between OE Waste and identified third parties concerning rights under clause 10.3. The commercial context supported that conclusion. Otherwise, related warranty, contribution and defence issues could be litigated in different courts, and Geco could enforce the restriction in England while Mr Campeau could litigate the same issue elsewhere.
5. Section 1 of the Contracts (Rights of Third Parties) Act 1999 also supported the result. Section 1(4) confined a third party enforcing a contractual right to compliance with relevant contractual terms. Clause 18.2 was a relevant term because it was wide enough to cover disputes concerning clause 10.3. The obligation did not depend on proof that the original contracting parties mutually intended to bind the third party.
6. The condition applied to proceedings brought by the third party to enforce clause 10.3. It did not prevent the third party from relying on clause 10.3 defensively in proceedings brought against it elsewhere.