Tanner Courier & Anor v HKA Global LLC & Ors

On an application to serve proceedings outside the jurisdiction, the claimant must establish a serious issue to be tried, a gateway under Practice Direction 6B, and that England is clearly or distinctly the most appropriate forum. The merits inquiry focuses on the pleaded facts, assumed true unless demonstrably untrue or unsupportable. A high duty of full and frank disclosure applies to without-notice service-out applications. A material omission does not automatically require discharge: the court must exercise a proportionate discretion, considering culpability, significance, merits and the nature of the order. Where contractual parties have selected England exclusively, strong reasons are required to depart from that bargain.

HKA Group Holdings Limited sought to bring a counterclaim and additional claim against Christopher Beirise and Accuracy US LLC in existing English proceedings concerning restrictive covenants in a nominee deed. Master Eastman permitted service out of the jurisdiction and later authorised alternative service. The applicants applied under CPR Part 11 to discharge those orders.

The issues were whether HKA UK had made full and frank disclosure and presented the case fairly; whether its claims disclosed a serious issue to be tried; whether a gateway under Practice Direction 6B was established; and whether England was the appropriate forum, despite related Delaware proceedings.

1. Disclosure. The existence and nature of the Delaware proceedings and the relevant provisions of the transition and settlement agreement had been adequately disclosed. However, HKA UK materially breached its duties of full and frank disclosure and fair presentation by failing to disclose the Delaware Vice Chancellor’s interim decision and the analogous argument that could be made from it. The omission was not deliberate and did not make the presentation misleading enough to require discharge.
2. Serious issue to be tried. Under CPR 6.37(1)(b), the court applied the real-prospect-of-success standard. Following Okpabi v Royal Dutch Shell Plc [2021] UKSC 3, the pleaded facts were to be treated as true unless demonstrably untrue or unsupportable. The detailed allegations of a coordinated recruitment scheme, breach of the nominee deed, inducement and procurement, knowledge and intention carried more than a fanciful prospect of success. A company may participate in a conspiracy through the conduct and knowledge of the people acting for it, and may join an existing conspiracy later.
3. Gateway. The claim fell within paragraph 3.1(3) of Practice Direction 6B. There was a real issue to be tried between HKA Global and the existing Part 20 defendants, and Beirise and Accuracy US were necessary or proper parties to that claim.
4. Forum. England was clearly the more appropriate forum. The nominee deed was governed by English law, contained an exclusive English jurisdiction clause, and related proceedings were already before the English court. The alleged co-conspirators should ordinarily be tried together. The Delaware proceedings concerned different agreements and did not provide strong reasons to depart from the contractual forum.
5. Remedy and disposal. The orders permitting service out and alternative service were maintained. The disclosure breach was marked by an appropriate costs order rather than discharge, because discharge would have been disproportionate and contrary to the overriding objective.

First-instance application under CPR Part 11 to discharge and set aside orders made by Master Eastman permitting service out of the jurisdiction and alternative service. The application was refused.