Antec International Ltd and Biosafety USA Inc.
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE GLOSTER, DBE,Mrs Justice Gloster, DBE |
| Judgment Date | 27 January 2006 |
| Neutral Citation | [2006] EWHC 47 (Comm) |
| Docket Number | Case No: 2005 Folio 213 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 27 January 2006 |
[2006] EWHC 47 (Comm)
Mrs Justice Gloster, DBE
Case No: 2005 Folio 213
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ricky Diwan Esq (instructed by Eversheds) for the Claimant
Ben Hubble Esq (instructed by Courts & Co) for the Defendant
Hearing dates: 14 th July 2005; written submissions 21 st July 2005;
and initial judgment 8 th August 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
(Reasons for determination made 8 th August 2005)
Introduction
On 8 th August 2005 I gave a short oral judgment in this matter dismissing the application by the defendant, Biosafety USA Inc ("Biosafety") to set aside and/or stay the proceedings brought by the claimant, Antec International Limited ("Antec") on 23 rd December 2004, which were served on Biosafety in Florida on 29 th December 2004. The stated grounds in Biosafety's application notice were:
i) that the court had no jurisdiction; and/or
ii) that the appropriate forum for the trial of Antec's action is Florida.
At the hearing before me in July 2005, it was correctly accepted by Mr Ben Hubble, counsel for Biosafety, that the court had jurisdiction to try the matter here. That was because Antec is a company incorporated and domiciled in the United Kingdom, Antec's claims (as contained in its Particulars of Claim) are for breach of contract (and ancillary relief), and these claims fall within the scope of the non-exclusive English court jurisdiction clause to which the parties submitted in their distribution agreement dated 1 st November 200This provides, at Clause 10.6 as follows:
"10.6 This agreement shall be governed by and construed in all respects in accordance with the Laws of England and each party hereunder submits to the non-exclusive jurisdiction of the English Courts".
Mr Hubble conceded that it therefore followed that the non-exclusive English jurisdiction clause fell within the scope of Article 23 of the Judgments Regulation (EC) 44/2001 ("the Regulation") and that, accordingly, permission to serve out of the jurisdiction was not required because the proceedings fell within CPR 6.19(1A)(6)(iii) in that Biosafety (notwithstanding its Florida domicile) is a party to an agreement conferring jurisdiction to which Article 23 applies. There was no dispute that Article 23 applied to non-exclusive, as well as exclusive, jurisdiction clauses. It was thus common ground at the hearing before me that Biosafety's application to set aside jurisdiction should be dismissed without the court even considering the question whether this was a proper case in which to give permission to serve out, and that the court should proceed directly to consider Biosafety's application for a stay on grounds of forum non conveniens.
However, Mr Ricky Diwan, counsel for Antec, in the course of a clear and helpful argument, submitted as a threshold point that there was no room for the application of the forum non conveniens doctrine in the light of the judgment of the European Court of Justice ("ECJ") in Owusu –v—Jackson (1 March 2005, Case No C-281/02). Accordingly, he submitted that, since section 49 of the Civil Jurisdiction and Judgments Act 1982 (as amended by Schedule 2 to the Civil Jurisdiction and Judgments Order 2001 – SI 2001/3928) permits the court to apply the doctrine of forum non conveniens only provided that it is not inconsistent with the Regulation, there was no basis upon which the court was entitled to consider Biosafety's alternative application for a stay, and that I should therefore dismiss it without even considering it on its merits.
After the hearing before me, and after my receiving from counsel various post-judgment submissions on the law in relation to the Owusu issue, it became apparent that, contrary to what I had been told at the hearing, it had become necessary for me to give an urgent determination, during the vacation, on Biosafety's application. That was because, on 14 th July 2005, apparently shortly after the conclusion of the hearing before me (and contrary to indications given by Mr Hubble at the hearing as to the imminence of proceedings, as he was not aware that these were about to be issued), Biosafety commenced proceedings in Florida against both Antec and Antec's ultimate parent company, E I DuPont de Nemours & Company ("DuPont"), a company incorporated in Delaware. In those circumstances, on 4 th August 2005, Antec's solicitors, Eversheds, requested that I give my judgment as a matter of urgency, in the vacation, so that my determination could be put before the Florida court in the context of Antec's and DuPont's challenge to the jurisdiction of that court. Accordingly, on 8 th August 2005 I gave a short oral judgment refusing Biosafety's application for a stay on the grounds of forum non conveniens. I specifically told the parties that, in view of the time which I had available, I was not at that stage going to give any ruling or make any decision on the Owusu point, but was merely going to address the merits of the forum non conveniens argument, on the assumption that Antec's arguments in relation to the Owusu point were not well founded, and that the court was accordingly entitled to entertain Biosafety's application for a stay on forum non conveniens grounds on its merits.
In the event, I decided that Biosafety had not established that England was not the natural or appropriate forum for Antec's claims, or that Florida (or, indeed, other jurisdictions in the United States of America) were clearly or distinctly the more appropriate forum; see The Spiliada [1987] AC 460 at pages 476-477. In particular, I held that Biosafety could not point to any strong or overwhelming reasons for not keeping the parties to their contractual choice of the English court as a forum for the resolution of their disputes, and that the factors of convenience for their witnesses and possible experts and the location of their documentary evidence and the subsequent issue of proceedings in Florida could not amount to strong or overwhelming circumstances such as would justify staying the English proceedings.
Relevant legal principles
In coming to my conclusion, I applied the following legal principles that can be derived from the authorities:
i) The fact that the parties have freely negotiated a contract providing for the non-exclusive jurisdiction of the English courts and English law, creates a strong prima facie case that the English jurisdiction is the correct one. In such circumstances it is appropriate to approach the matter as though the claimant has founded jurisdiction here as of right, even though the clause is non-exclusive; see e.g. per Hobhouse J in S & W Berisford Plc v New Hampshire Insurance Co. [1990] 1 Lloyd's Rep. 454, at 463; per Waller J in British Aerospace Plc v Dee Howard Co [1993] 1 Lloyd's Rep. 368; per Moore-Bick J in Mercury Communications Ltd v Communication Telesystems International [1999] 2 AER 33 at page 41.
ii) Although, in the exercise of its discretion, the court is entitled to have regard to all the circumstances of the case, the general rule is that the parties will be held to their contractual choice of English jurisdiction unless there are overwhelming, or at least very strong, reasons for departing from this rule; see e.g. British Aerospace Plc supra; Mercury Communications supra at page 41; per Aikens J in Marubeni Hong Kong & South China Ltd v Mongolian Government [2002] 2 AER (Comm) 873 at 891(b) – (f); per Lawrence Collins J in Bas Capital Funding Corporation and others v Medfinco Ltd and Others [2004] 1 Lloyd's Rep. 652, at paragraphs 192–195; per Gross J in Import Export Metro Ltd v Compania Sud Americana de Vapores SA [2003] 1 Lloyd's Rep. 405.
iii) Such overwhelming or very strong reasons do not include factors of convenience that were foreseeable at the time that the contract was entered into (save in exceptional circumstances involving the interests of justice); and it is not appropriate to embark upon a standard Spiliada balancing exercise. The defendant has to point to some factor which it could not have foreseen at the time the contract was concluded. Even if there is an unforeseeable factor or a party can point to some other reason which, in the interests of justice, points to another forum, this does not automatically lead to the conclusion that the court should exercise its discretion to release a party from its contractual bargain; see cases cited supra. In particular, the fact that the defendant has, or is about, to institute proceedings in another jurisdiction, not contemplated by the non-exclusive jurisdiction clause, is not a strong or compelling reason to relieve a party from his bargain, notwithstanding the undesirability of parallel proceedings. Otherwise a party to a non-exclusive jurisdiction clause could avoid its agreement at will by commencing proceedings in another jurisdiction; see cases cited supra and The El Amria [1981] 2 Lloyd's Rep. 119; Breams Trustees Ltd v Upstream Downstream Simulation Services [2004] EWHC 211 (Ch) per Patten J at...
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