The judgment is one of only a handful of judgments in respect of CPR 6.33(2B)(b) and the first reported decision to consider the proper construction of that gateway in respect of mixed claims (i.e. where multiple causes of action are relied upon, but not all fall within the underlying contract’s jurisdiction clause).
The Claimant alleges there are unpaid fees pursuant to an unsigned written contract said to have been concluded in around October 2018 between the Claimant and the Defendant containing an exclusive jurisdiction agreement in favour of the English Courts. The Claimant’s Amended Particulars of Claim also contained reference to a claim in unjust enrichment but no such claim was included in the Claim Form. The Claimant served the Defendant in the United States of America relying on CPR 6.33(2B)(b). This gateway, introduced with effect from 6 April 2021 as part of the EU Exit arrangements consequent upon Brexit, removed the need for the court’s permission to serve the claim form outside the jurisdiction where the claim falls within a jurisdiction clause in favour of the English courts.
The Defendant challenged the jurisdiction of the English Courts to try the claims brought by the Claimant. The Defendant’s position was that no legally binding agreement was ever signed or entered into between the Claimant and the Defendant (whether in around October 2018 or at any time thereafter) and there was therefore no enforceable English jurisdiction clause. In the alternative, the Defendant submitted that the Court should stay proceedings to give effect to a mandatory escalation clause in the alleged contract.
In a detailed judgment Master Stevens considered the proper approach and scope of CPR 6.33(2B)(b). The Master accepted the Defendant’s submissions that the burden was on the Claimant to establish a good arguable case that (i) the contract in respect of which the claim was made existed and was legally binding; (ii) such contract contained a valid and effective jurisdiction agreement in favour of the English Courts binding on the Defendant and (iii) the dispute between the parties fell within the scope of that jurisdiction agreement. The guidance in respect of the good arguable case test is found in amongst others Kaefer Aislamientos v AMS Drilling Mexico [2019] EWCA Civ 10.
Master Stevens held, in respect of the unsigned contract that, on the documentary evidence before her, there was a good arguable case that there was a relevant and binding legal contract entered into in 2018 containing a valid and effective jurisdiction agreement covering the subject matter of the dispute. The Master then accepted the Defendant’s alternative case and granted a stay of proceedings.
Although the Claimant had conceded at the hearing that no quantum meruit claim was being advanced, Master Stevens nevertheless considered and accepted the Defendant’s argument that a claim in unjust enrichment did not fall within the scope of CPR 6.33 (2B)(b). As the unjust enrichment claim was not a “contract claim”, it did not fall within CPR 6.33(2B)(b) and the Claimant (had it wished to make such a claim) ought to have applied for permission to serve out. The Master also noted that this “perceived lacuna” had now been addressed with the introduction of new CPR 6.33(2B)(c).
Sophie Weber appeared for the Defendant instructed by Freshfields Bruckhaus Deringer LLP.
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