Sucden Financial Limited v TMT Metals AG & Ors

A tort claim alleging that a creditor was fraudulently induced to forbear enforcement states an actual loss, rather than a merely reversible exposure to risk, where the debt became unrecoverable during that forbearance. Where the debt would have been paid in England, the direct damage is sustained in England for the tort service-out gateway and for Article 4(1) of Rome II.

The situs of the debt for enforcement purposes does not determine the place where this loss is suffered. A fraudulent representation made in England may also satisfy the tortious-act gateway if it is arguably a substantial and efficacious cause of the loss.

Sucden, an English derivatives and commodities broker, alleged that TMT and Mr Gupta fraudulently represented that a bill of lading secured a cargo of valuable nickel. Sucden alleged that it consequently forbore from enforcing TMT’s debt, entered a further security arrangement, and lost the opportunity to recover the debt when it later became unrecoverable.

Robin Knowles J refused Mr Gupta’s application to set aside permission to serve him in Dubai, holding that there was a good arguable case that damage had been sustained in England under the Tort Damage Gateway: [2025] EWHC 2006 (Comm). Mr Gupta appealed only that jurisdictional conclusion.

Sucden relied additionally on the Tort Applicable Law Gateway and, on appeal, the Tortious Act Gateway. The central question was where the alleged damage from the fraudulently induced forbearance was sustained.

1. Appeal dismissed. The court held that the Tort Damage Gateway was satisfied. Sucden’s case was not that delay itself, or a reversible exposure to risk, was damage. Its case was that a debt recoverable when it was fraudulently induced not to enforce it had become unrecoverable by the time the fraud emerged. That was an actual loss, unlike the provision of credit considered in Eurasia Sports Ltd v Aguad [2018] EWCA Civ 1742.

2. The direct loss was sustained in England. The essential harm was the non-recovery of a debt payable to Sucden in London. Applying the approach in Dolphin Maritime Services v The Swedish Club [2009] EWHC 716 (Comm), the relevant counterfactual was that, absent the wrong, the debt would have been paid in England. The debtor’s Swiss domicile and the technical situs of the debt did not alter that conclusion.

3. The same conclusion meant that the tort claim fell within the Tort Applicable Law Gateway through Article 4(1) of Rome II. Once significant damage was shown in England, the jurisdictional challenge could not sensibly continue in respect of the associated expenses claim.

4. The court also permitted Sucden to rely on the Tortious Act Gateway, although this was unnecessary to the dismissal of the appeal. The point caused Mr Gupta no prejudice because the material evidence about the London meeting was already before the court. There was a good arguable case that a fraudulent representation at that meeting was a substantial and efficacious cause of the subsequent non-enforcement and loss. The meeting led from a demand for payment to an arrangement under which Sucden agreed to forbear for a specified period in return for a pledge.

5. It was unnecessary to decide the Necessary or Proper Party Gateway. The court left those arguments for a case in which they were central.

• Court of Appeal (Civil Division): Dismissed Mr Gupta’s appeal and upheld service out under the Tort Damage Gateway: [2026] EWCA Civ 986 .

• High Court, Commercial Court: Robin Knowles J dismissed Mr Gupta’s application to set aside permission to serve the proceedings out of the jurisdiction, finding a good arguable case under the Tort Damage Gateway: [2025] EWHC 2006 (Comm) .