Mark Denning v Arcem Resources Limited & Anor

For service of a claim form outside the jurisdiction without permission, the claimant must show a good arguable case that the containing agreement exists and contains a term conferring jurisdiction. It is insufficient to establish only that a jurisdiction clause exists.

Forbearance supports consideration only where it is causally linked to the debtor’s promise through an express or implied request. Bare chronology is insufficient to provide the required plausible evidential basis. Permission to serve out requires a good arguable gateway case, a serious issue to be tried, and England as the appropriate forum.

The claimant sought repayment of a US$1 million loan and guarantee. The loan agreement was governed by English law. A later Security Letter referred to the loan and contained an English exclusive jurisdiction clause. The defendants applied under Part 11 to challenge service of the claim form outside the jurisdiction without permission under CPR 6.33(2B)(b) and (c).

The claimant made a contingent cross-application for permission to serve out under Practice Direction 6B, paragraph 6(c), and for an extension of time. The central issues were whether the Security Letter as a whole was a contract supported by consideration and, if not, whether permission to serve out should nevertheless be granted.

1. Part 11 application. Valid service subjects a defendant to the court’s jurisdiction. The court adopted the principles in R (Good Law Project Ltd) v Secretary of State for Health and Social Care [2022] 1 WLR 2339 and Robertson v Google LLC [2025] EWCA Civ 1262. For CPR 6.33(2B)(b) and (c), the claimant had to show a good arguable case that the Security Letter as a whole was a contract containing an English jurisdiction term. Canara Bank v MCS International Ltd [2022] EWHC 2012 (Comm) and Rimpacific Navigation Inc v Daehan Shipbuilding Ltd [2009] EWHC 2941 (Comm) supported that approach.
2. Good arguable case and consideration. The court applied the flexible, context-specific test explained in Brownlie v Four Seasons Holdings Inc [2017] UKSC 80 and Kaefer Aislamentios SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10. Forbearance required a causal link between the lender’s decision not to sue and the debtor’s promise, supported by an express or implied request. The evidence supplied only a bare sequence of demands, non-payment and absence of proceedings. It therefore did not establish a plausible evidential basis for consideration by forbearance. This was not a determination of the ultimate merits or a finding that the Security Letter was meaningless.
3. Jurisdiction clause. A jurisdiction or arbitration clause could not itself supply consideration for an agreement otherwise lacking consideration. The court treated Goberdan v Knights of Columbus [2023] ONCA 327, Ismail v First York Holdings Inc [2023] ONCA 332 and DHL Project & Chartering Limited v Gemini Ocean Shipping Co Limited [2023] EWCA Civ 1555 as consistent with that conclusion. The Part 11 application therefore succeeded. The court did not need to decide separability or the validity of the methods of service.
4. Cross-application. The contingent application was heard ex parte on notice. The approach was supported by SMT Global Logistics v Georgian Airlines [2025] EWHC 739 (Comm) and the jurisdictional caution in Deutsche Bank AG v Petroma ASA [2015] 2 Lloyd’s Rep 15. Applying Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45, the claimant established a good arguable gateway case, a serious issue to be tried and that England was the appropriate forum.
5. Forum and orders. The relevant factors included the English governing-law clause, English documents, local expertise, avoidance of inconsistent proceedings and the absence of a more appropriate alternative forum. Permission to serve out was granted against both defendants. Time for service was extended to 30 January 2027, with liberty to apply to set aside service.