Bill Kenwright Ltd v Flash Entertainment FZ LLC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Haddon-Cave |
| Judgment Date | 28 July 2016 |
| Neutral Citation | [2016] EWHC 1951 (QB) |
| Date | 28 July 2016 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15X01436 |
[2016] EWHC 1951 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Haddon-Cave
Case No: HQ15X01436
Adam Johnson and Emily Blanshard (instructed by Herbert Smith Freehills LLP) for the Claimant
Tamara Kagan (instructed by Allen & Ovary LLP) for the Defendant
Hearing dates: 23 June 2016
Judgment Approved
Introduction
This is an application by the Defendant, Flash Entertainment FZ LLC, to challenge service of proceedings on it in Abu Dhabi by the Claimant, Bill Kenwright Limited, on the grounds that: (a) it does not have a sufficiently arguable case on the merits; (b) it does not have a sufficiently arguable case on the jurisdictional gateways; (c) forum non conveniens; and (d) various other grounds related to service.
The Claimant is an independent theatre and production company incorporated in England. Its Chief Executive is Bill Kenwright. The Defendant is an organiser and promoter of live events in Abu Dhabi, including sporting and theatre events. The Defendant is incorporated in the United Arab Emirates and is a wholly-owned subsidiary of the Government of Abu Dhabi. Its Chief Executive is John Lickrish.
The Claimant alleges that it entered into three agreements with the Defendant, each of which was breached:
(1) The First Agreement, said to have been concluded on or about 27 th June 2010 with involvement of an independent broker, Mr Rod Gunner, and the Defendant's Head of Projects, Mr Brett Judd, whereby the Claimant would present " Jekyll & Hyde" over a three-week period in Abu Dhabi in February 2011 for the sum of £780,000.
(2) The Second Agreement, said to have been concluded on or about 15 th January 2011, again with involvement of Mr Gunner and Mr Judd, whereby it was agreed that the productions of " Jekyll & Hyde" would be moved to September 2011 and the Claimant would be entitled to payment of a further £260,000 in compensation for the postponement, i.e.£1,040,000 in total.
(3) The Settlement Agreement, said to have been reached on 4 th November 2011 in an international telephone conversation between Mr Kenwright in London and Mr Lickrish in Abu Dhabi, whereby the Claimant alleges that the Defendant agreed to pay a total sum of £500,000 in settlement of the breaches of the First and Second Agreements, payment to be made in three tranches: £200,000 to be paid on 4 th November 2011, £150,000 on 9 th January 2012 and a further £150,000 on 9 th January 2013.
By these proceedings, the Claimant claims against the Defendant £500,000 due under the Settlement Agreement.
The Defendant admits that there were negotiations regarding the Claimant bringing " Jekyll & Hyde" to Abu Dhabi in 2011, but denies that any binding agreements were concluded and denies the existence of the Settlement Agreement.
Procedural background
The following summary of the procedural background is taken from the Claimant's skeleton argument.
The Claim Form was issued on 6 th March 2015. The Particulars of Claim are dated 17 th July 2015. By application notice dated 23 rd July 2015, the Claimant applied for permission to serve the Claim Form, Particulars of Claim and other documents on the Defendant out of the jurisdiction ("Application for Service Out"). An application for Service Out was granted by Order of Master McCloud dated 24 th July 2015 ("Order for Service Out").
By application notice dated 27 th August 2015, the Claimant applied: (i) for permission to serve the Claim Form, Particulars of Claim and other documents on the Defendant by registered mail; and (ii) for an extension of time for service of the Claim Form until 31 st July 2016. By Order of Master McCloud dated 27 th August 2015 the period for service of the Claim Form was extended to 31 st October 2015.
By application notice dated 14 October 2015, the Claimant applied: (i) for permission to serve the Claim Form, Particulars of Claim and other documents on Flash by registered mail; and (ii) for an extension of the time for service of the Claim Form until 31 st July 2016 ("Second Application for Service by Alternate Method"). By Order of Master McCloud dated 20 th October 2015 the period for service of the Claim Form was extended until 31 st July 2016. By Order of Senior Master Fontaine dated 27 th October 2015, headed "Service by an Alternative Method", the Claimant was permitted to serve the Claim Form, Particulars of Claim and other documents on the Defendant by registered mail. The Order for Service by Alternate Method directed that documents were to be "deemed" served on the second business day after posting. The Claim Form and Particulars of Claim were posted by registered mail to the Defendant at its address (Floor 3, Park Rotana Building, twofour 54 Media Zone, Khalifa Park, PO Box 77828, Abu Dhabi, United Arab Emirates) on 16 th December 2015.
By application notice dated 2 nd February 2016, the Defendant sought declarations/orders that: (i) the Defendant be granted permission to rely on the expert evidence of Dr Habib; (ii) the courts of England and Wales do not have/will not exercise jurisdiction over the Defendant; (iii) the Order for Service Out dated 24 th July 2015, the Orders for extension of time dated 27 th August 2015 and 20 th October 2015 and the Order for Service by an Alternative Method dated 27 th October 2015 issued by this court be set aside; (iv) the Claim Form be set aside; and (v) service of the proceedings (and any other document in the proceedings) on the Defendant be set aside.
The Law
The law in this area is well understood and needs no elaborate rehearsal. The following summary of the applicable principles will suffice:
(1) The courts are traditionally careful before allowing a writ to be served on a foreign defendant out of the jurisdiction and must scrutinise most jealously the factor(s) which gives rise to jurisdiction ( Brownlie v Four Seasons Holdings Inc [2016] 1 WLR 1814 at [17] CA; and c.f. Pearson J in Societe Generale de Paris v Dreyfus Bros (1885) 29 Ch D 239, 242–243).
(2) The court will have jurisdiction if, and only if, the claimant can show a " good arguable case" that the claim falls within one of the jurisdictional gateways in Practice Direction 6B.
(3) Where, as here, the issue goes to both the question of jurisdiction and the substantive merits at the trial, the claimant must show that it has a " much better argument on the material available" that the claim falls within a gateway (see Waller LJ in Canada Trust Co v. Stolzenberg (No. 2) [1998] 1 WLR 547; and Brownlie v Four Seasons [2016] 1 WLR 1814 at [18]).
(4) The words "much better argument" mean more than simply the case is arguable: the evidence must achieve an acceptable level of quality and adequacy ( Brownlie v Four Seasonsibid at [23]).
(5) The so-called Canada Trust gloss means that the court is concerned with a question of "relative plausibility" on evidence adduced on an interlocutory basis, which the court must decide without prejudice to any ultimate decision the court might have to make at trial; and there is both a relative element and an absolute standard to be met ( per Cooke J in Erdenet Mining Corp. v. Kazakhstan [2016] EWHC 299 at [13]).
The editors of Dicey, Morris & Collins summarised the approach as follows (at paragraph 11–147):
" The question before the court is one which is normally decided on affidavits from both sides and without full disclosure and/or cross-examination, and the power to order a preliminary issue will seldom be used because trials on jurisdiction issues are to be strongly discouraged. The court must be concerned not even to appear to express some concluded view on the merits, e.g. as to whether the contract existed or not. 'Good arguable case' reflects in that context that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e. of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction."
(A) Factual Question
The Claimant's case on jurisdiction depends upon proof of the existence of the Settlement Agreement.
Analysis of the evidence
The Defendant accepts that preliminary discussions took place in 2010 between one of its employees, Mr Judd, and Mr Gunner, concerning the possibility of the Claimant bringing several productions to Abu Dhabi, including " Jekyll and Hyde" but denies that binding agreements to this effect were ever concluded. The Defendant contends that: (i) Mr Judd lacked authority; (ii) matters never progressed beyond due diligence; and (iii) in any event, no formal written agreements were ever signed by it. It is not necessary, however, to resolve the arguments as to the existence of the First or Second Agreements. The reason is that the current proceedings are based solely on the Settlement Agreement as a self-standing agreement. The central issue is whether the Claimant has "the much better argument" as to the existence of the Settlement Agreement.
The following points on the evidence are pertinent. First, there is cogent evidence that the parties were in a dispute regarding the musical " Jekyll & Hyde" and that the Claimant was claiming that: (i) the parties had agreed binding terms for the musical to be shown in Abu Dhabi in February 2011 (the First Agreement); (ii) the Defendant had reneged on those terms and the Claimant had agreed to put back the production six months until September 2011, subject to the Defendant paying compensation for the delay (the Second Agreement); (iii) it had incurred considerable pre-production costs in...
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