Intralinks Inc v Nexans SA

For service out of jurisdiction, a claimant must establish a serious issue to be tried, an applicable gateway, that England is the proper place, and that service should be permitted. A factual gateway requires a good arguable case, while jurisdictional questions of law are normally decided by the court. Contract formation is objective, and a signed contract governs despite a party’s subjective mistake. An invoice clause may imply payment to the account specified in a commercially conventional invoice. The forum inquiry asks whether England is clearly the most appropriate forum on all relevant connecting factors. There is no heightened burden merely because Gateway 6(c) is relied on. An express choice of English law may carry substantial weight where the issues depend on differing legal frameworks.

The claimant provided virtual data-room services to the defendant under a disputed Project Otto contract. The claimant sought payment of approximately €2.19 million. The defendant contended that an earlier work order incorporated French terms, whereas the claimant relied on a later signed work order incorporating an English-law MSA.

The defendant had commenced related proceedings in France. After permission to serve proceedings abroad was granted, it challenged jurisdiction under CPR Part 11. The issues were whether Gateways 6(c) and 7 were satisfied, whether the contract was formed on the later work order or should be rectified for mistake, and whether England was clearly the appropriate forum.

Disposition. The jurisdiction challenge was dismissed. The claimant established a good arguable case under Gateway 6(c), Gateway 7 applied as a matter of law, England was the proper place to hear the claim, and the discretion to permit service out was properly exercised.

1. Service out. Under the Civil Procedure Rules 1998, the claimant had to show a serious issue to be tried, an applicable gateway, that England was the proper place, and that service out should be permitted. The good arguable case test was context-specific and flexible. Where the court could reliably assess disputed facts, the claimant had to show the better of the argument on the available material, having regard to the interlocutory nature of the application. Questions of law going to jurisdiction were to be decided rather than approached by the good arguable case standard. The court applied Altimo Holdings and Investment v Kyrgz Mobil Tel [2011] UKPC 7 and Kaefer Aislamentos v AMS Drilling Mexico [2019] 1 WLR 3514 (CA).
2. Formation and rectification. Applying objective contractual principles, the 3 October Work Order and attached English MSA formed the contract when signed by both parties through Docusign. The earlier email was not unequivocal acceptance, and opening or using the data room did not objectively conclude the contract. The pricing agreement was only a framework. Its sample terms and the website’s regional MSA links did not incorporate the French MSA or create a freestanding contractual option. The later entire-agreement clause would in any event have superseded any earlier informal agreement. Under FSHC v Glas [2020] Ch 365 (CA), Nexans had not shown a continuing common subjective intention, or that Intralinks knew of a unilateral mistake, sufficient for rectification.
3. Gateways. Gateway 6(c) was satisfied because Intralinks had the better argument that the contract was governed by English law. For Gateway 7, the court held that the payment provision impliedly required payment according to the arrangements specified in a proper invoice where those arrangements were reasonably consistent with conventional commercial practice. That implied term displaced the traditional creditor-place presumption. The invoices specified an English account, so non-payment, if a breach, was committed in England. The reasoning in Canyon Offshore v GDF Suez [2015] Bus LR 578 was applied.
4. Forum. The court followed Spiliada Maritime v Cansulex [1987] AC 460. The single question was whether England was clearly the most appropriate forum after considering all relevant connecting factors. No special or heavier burden applied merely because Gateway 6(c) was relied on. The choice of English law, English-language contractual and performance material, the English place of payment, and the international nature of the transaction outweighed the French location of Nexans and many witnesses. The French proceedings were pre-emptive, incomplete and insufficiently weighty to displace the English forum. The court applied the approach to overlapping proceedings in De Dampierre v De Dampierre [1988] AC 92 and The Channel Ranger [2014] 1 Lloyds Rep 337.
5. Since England was clearly the most appropriate forum, Intralinks did not need to establish separately that substantial justice could not be obtained in France. The parties were to address the form of order, including initial case-management directions.

No appellate history was stated. The judgment records that HHJ Bird granted permission for service out on 31 March 2026, after which Nexans made the CPR Part 11 jurisdiction challenge.