Westbase Technology Limited v Vuzix Corporation & Ors

Permission to serve proceedings out of the jurisdiction requires a serious issue to be tried, a good arguable case within a jurisdictional gateway, and England to be the appropriate forum.

Where the jurisdictional issue overlaps with a substantive issue, the court should avoid a mini-trial. If the evidence permits no reliable assessment, a plausible evidential basis may suffice. Contractual promises to perform are ordinarily governed by contract law and do not generally generate fallback claims in negligent misrepresentation or negligent misstatement. A director does not ordinarily assume personal tortious responsibility merely because he can ensure that a company performs its contractual obligations.

On an ex parte service-out application, relevant adverse matters must be fairly and sufficiently drawn to the court’s attention. An innocent shortcoming does not automatically require the order to be set aside; the court must exercise its discretion consistently with the overriding objective.

Westbase Technology Limited claimed against Vuzix Corporation for breach of an alleged oral settlement agreement concerning the repurchase of unsold stock. It also claimed negligent misrepresentation against Vuzix and negligent misstatement against Vuzix’s former officers, Alison Jameson as representative of Peter Jameson’s estate and Paul Travers.

Westbase had obtained permission under CPR 6.36 and CPR 6.37 to serve the defendants in the United States. The defendants applied to set aside that permission, contending that no oral contract existed, that the jurisdictional gateways were not met, that New York was the appropriate forum, and that Westbase had failed in its duty of full and frank disclosure.

The central issues were whether the contract claim met the service-out tests, whether the tort claims disclosed a serious issue to be tried, whether England and Wales was the appropriate forum, and what consequence followed from the alleged disclosure failures.

1. Contract claim. The issue whether the parties intended their oral understanding to be legally binding was objectively one of fact. The evidence established a serious issue to be tried and, although the defendants had substantial arguments, Westbase had a plausible evidential basis for the existence of the contract.
2. Where an issue relevant to a jurisdictional gateway is also fundamental to the merits, the court must avoid expressing a concluded view at an interlocutory stage. Under the approach in Brownlie v Four Seasons Holdings Inc and Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CVAtlantic Tiburon 1, a good arguable case may exist without the claimant having the relatively better argument, where the available evidence is incomplete and a reliable assessment cannot fairly be made.
3. Westbase also had a good arguable case that a contractual gateway was satisfied. The factual questions concerning offer and acceptance, the possible involvement of Westbase BV, the parties’ choice of law, and the application of UK Rome I could not reliably be resolved at that stage.
4. Forum. England and Wales was the appropriate forum. The governing-law issue remained disputed, but the claim concerned an alleged English-law contract, the principal contractual harm appeared to have occurred in England and Wales, and the overall practical balance, including cost shifting and likely duration, favoured England.
5. Tort claims. The Terms Statements were alleged contractual promises, not negligent representations on which a separate tort claim ordinarily arises. Support Statements that a contracting party will perform its contractual obligations likewise ordinarily give rise to contractual, not tortious, liability. The claims against the directors also lacked a pleaded basis for a special relationship or personal assumption of responsibility under Hedley Byrne & Co Ltd v Heller & Partners Ltd and Williams v Natural Life Health Food. The tort claims therefore failed the serious-issue test and permission to serve them out was varied to exclude them.
6. Disclosure. Westbase had not clearly presented the defendants’ strongest interpretations of several matters, but the shortcomings were not deliberate or deceitful. Since a fresh application could be made on the same basis and setting aside would cause unnecessary cost and court use, the court exercised its discretion under the overriding objective and declined to set aside permission for the contract claim.

The judgment describes the procedural history of the service-out application.

• High Court (Business List): Master Teverson granted permission on the papers on 10 March 2025. The defendants’ application to set aside that order was heard on 11 November 2025. Deputy Master Valentine retained permission for the contract claim against Vuzix, but varied the order to exclude the tort claims against all defendants.