It has often been said that cases about the doctrine of consideration do not come along often. However, in Denning v Arcem [2026] EWHC 2426 (Ch), a jurisdiction challenge succeeded on the ground that the agreement containing the English jurisdiction clause relied upon by the claimant was not supported by consideration.
In the underlying proceedings, C contends that he lent US$1m to Ds as emergency funding for operations at the Minas Moatize coal mine in Mozambique under a Loan Agreement dated 18 December 2019. The Loan Agreement is governed by English law but does not contain a jurisdiction clause. But C contends that, on 13 June 2021, the parties entered into a ‘Security Letter’, under which Ds agreed to provide security for the loan under the Loan Agreement, and that the Security Letter contains an exclusive jurisdiction agreement in favour of the English courts. Accordingly, in November 2025, C issued a claim seeking payment of money said to be due under the Loan Agreement and purported to serve the claim form on Ds out of the jurisdiction without permission pursuant to CPR 6.33(2B), relying on the jurisdiction clause in the Security Letter.
Ds issued an application under CPR Part 11 challenging the jurisdiction of the Court on the ground that the Security Letter is void for lack of consideration and that the jurisdiction clause in it therefore could not be relied upon to serve the claim form. C argued that the jurisdiction clause was separable and that it was therefore irrelevant whether the Security Letter as a whole lacked consideration but in any event that it did not lack consideration.
Following a 2 day hearing in the Chancery Division, the Court (Amanda Hardy KC sitting as a Deputy High Court Judge) allowed the Part 11 application.
The Judge held that, as a matter of statutory interpretation, CPR 6.33(2B) requires the claimant to establish not only that there is a jurisdiction clause, but that there is a contract containing a term which provides for English jurisdiction. In other words, the claimant must have a good arguable case that (i) the contract as a whole came into existence; and (ii) that contract contains a term providing for English jurisdiction.
The Judge found that the claimant did not have a good arguable case that the Security Letter was supported by consideration because: (i) there was no evidence that C had refrained from suing Ds on the strength of the Security Letter; (ii) bare forbearance to sue is incapable of amounting to consideration as a matter of law; and (iii) a jurisdiction or arbitration clause cannot on its own constitute consideration if the containing contract otherwise lacks it.
The Part 11 application therefore succeeded; and that meant that the Judge did not need to decide various further grounds on which jurisdiction had been challenged (e.g. concerning the validity of the methods of service used).
The judgment is available here.
Niranjan Venkatesan KC and Joe Johnson acted for the successful defendants, instructed by Enyo Law LLP.