Chep Equipment Pooling BV v ITS Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Salter |
| Judgment Date | 01 April 2022 |
| Neutral Citation | [2022] EWHC 741 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Claim No CL-L-2020-000797 |
[2022] EWHC 741 (Comm)
Mr Richard Salter QC
Sitting as a Deputy Judge of the High Court
Claim No CL-L-2020-000797
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Royal Courts of Justice. Rolls Building
Fetter Lane, London, EC4A 1NL
Ms Victoria Windle (instructed by Taylor Wessing LLP) appeared for the Claimant
The Defendants did not appear and were not represented
Hearing date: 16 March 2022
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.
Mr Salter QC:
Introduction
On Wednesday 16 th March 2022, applications by the First Defendant (“ ITS”) and the Second Defendant (“ ITS Estonia”) (together, “ the Relevant Defendants”) were listed for hearing before me. Those applications, issued on 22 June 2021, each sought declarations that the Court has no jurisdiction to try the claims made in this action (alternatively, that the Court should not exercise any jurisdiction that it has) and orders that the Claim Form and Particulars of Claim and the service of those documents should be set aside. The application by ITS also sought an order setting aside the order dated 21 April 2021 of Bryan J giving permission for ITS to be served in the Isle of Man. The application by ITS Estonia sought an order setting aside the order dated 10 March 2021 of Bryan J giving permission for service upon ITS Estonia by alternative methods.
The non-appearance of the applicants
At the hearing, Ms Victoria Windle (since 21 March 2022 one of Her Majesty's counsel) appeared for the Claimant but neither of the Relevant Defendants appeared or was represented. It was therefore necessary for me to satisfy myself at the outset that the Relevant Defendants had each had proper notice of the hearing of these applications and, if so, to decide how to deal with these applications. At the hearing, I announced my decision that I was so satisfied, and that I would hear and determine the applications in the absence of the Relevant Defendants. This section of this judgment contains my reasons for those decisions.
As to notice of the hearing, Ms Windle drew my attention to the following matters, which appeared from the documents in the application bundle:
3.1 The Acknowledgements of Service indicating an intention to contest the jurisdiction on behalf of the Relevant Defendants were filed on their behalf by Keystone Law, whose address was given as their address for service.
3.2 Keystone Law also issued the applications on behalf of the Relevant Defendants and were still the solicitors on record for the Relevant Defendants when the applications were fixed for a two-day hearing on 15–16 March 2022.
3.3 On 9 February 2022 Keystone Law filed and served a Notice of Change of Solicitor on behalf of ITS Estonia, stating that Keystone Law had ceased to act and that ITS Estonia would now be acting in person. On 15 February 2022, Keystone Law filed a similar Notice of Change of Solicitor on behalf of ITS.
3.4 Taylor Wessing LLP, the solicitors for the Claimant, sent letters dated 22 February 2022 by courier to each of the Relevant Defendants, which referred to “the hearing listed for 15–16 March 2022”, and which invited the Relevant Defendants to confirm (in the light of the fact that they no longer had solicitors acting for them) that they agreed to withdraw their applications. No response was received to either of those letters.
3.5 Taylor Wessing LLP sent letters dated 1 March 2022 to each of the Relevant Defendants. In the case of ITS, the letter was sent by special delivery; in the case of ITS Estonia it was sent by courier. Those letters again expressly referred to the hearing “listed for 15–16 March”. They drew the requirements set out in paragraph F6.4 of the Commercial Court Guide to the attention of the Relevant Defendants but stated that, as the Relevant Defendants were no longer represented, Taylor Wessing LLP would prepare the application bundle on their behalf. A draft index for the application bundle was enclosed with each of those letters, which again repeated the invitation to withdraw the applications. Again, no response was received to either of those letters.
3.6 In fact, the applications were not listed for hearing on 15–16 March 2022, but on 16–17 March 2022.
3.7 At no relevant point had either of the Relevant Defendants attempted to make contact with Taylor Wessing LLP. Nor was there any record on the Court File of any attempt to make contact with the Court.
I was satisfied from these matters that the Relevant Defendants had received sufficient notice that their applications were to be heard by the Court on 16 March 2022.
With regard to how I should deal with the applications, Ms Windle submitted that, in view of the non-attendance by the Relevant Defendants, it was open to me simply to dismiss their applications, without considering the merits. She drew my attention to the recent decision of the Court of Appeal in Leave.EU Group Limited v The Information Commissioner [2022] EWCA Civ 109, in which that course was taken. Sir Geoffrey Vos MR (with whom Lewison and Asplin LJJ agreed) stated (at [18]) that:
.. I am satisfied that the Court of Appeal has an inherent jurisdiction either to hear an appeal in the absence of one party or to dismiss an appeal when the appellant fails to appear for a substantive hearing. It would make the operation of the Court of Appeal impossible if no such jurisdiction existed, and the Court must be in control of its own procedures in order to give effect to the overriding objective of enabling the court to deal with cases justly and at proportionate cost ( CPR Part 1.1) ..
Ms Windle submitted that the High Court at first instance must also have such an inherent jurisdiction, either to hear an application in the absence of a party or to dismiss an application without consideration of the merits when the applicant fails to appear for the hearing.
CPR Pt 23.11(1) gives the court an express power to proceed in the absence of a party who fails to attend the hearing of an application. If the Court does so and makes an order, Pt 23.11(2) gives the court an unfettered discretion, either on application or of its own initiative, to re-list the application for hearing: see Yeganeh v Freese [2015] EWHC 2032 (Ch).
I was prepared to accept Ms Windle's submission that, in addition to that express power under the CPR, the Court also has an inherent jurisdiction in appropriate circumstances simply to dismiss an application without considering the merits where the applicant fails to attend.
Different considerations, however, apply to substantive appeals to the Court of Appeal from those which a first-instance judge should take into account in considering an interim application: and different considerations may apply depending upon the particular interim application under consideration.
The Leave.EU case was an appeal from the Upper Tribunal (Administrative Appeals Chamber): and Sir Geoffrey Vos MR also relied as a ground of decision upon Rule 8(3)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (applied to the Court of Appeal by CPR Pt 52.20(1)), which enables the Upper Tribunal to strike out proceedings if an appellant has failed to cooperate with the Upper Tribunal to such an extent that the Upper Tribunal cannot deal with the proceedings fairly and justly. Moreover, one of the reasons why the Court of Appeal simply dismissed the appeal in that case, rather than hearing it in the absence of the appellant, was that:
.. [I]t would have been undesirable in the circumstances of this case to try to decide such important questions at the level of the Court of Appeal without full oral argument ..
Those considerations do not apply to a routine jurisdiction application at first instance, such as that before me.
I carefully considered the three options available to me for dealing with this application: to adjourn it; to dismiss it summarily; or to exercise the power given by CPR 23.11(1) to proceed in the absence of the Relevant Defendants.
I did not consider that it would be appropriate to adjourn these applications. No application for an adjournment had been made. Moreover, the failure of either of the Relevant Defendants to respond to either of the letters from Taylor Wessing LLP, and the failure of both of the Relevant Defendants to take any steps to prosecute these applications, did not suggest that any useful purpose would be served by such an adjournment. In accordance with paragraph (e) of CPR Pt 1.1(2), I had to consider the pressures upon the time of the Commercial Court and to consider the interests of other court users. I also had to consider the inevitable open-ended delay to the progress of this litigation (and consequent prejudice to the Claimants and to the interests of justice) that would be caused if these jurisdiction applications were simply postponed.
It nevertheless did not seem to me to be the right course in all the circumstances simply to dismiss these applications without considering their merits. These applications involved challenges to the jurisdiction of the Court: and for many reasons (not least justice to the parties in relation to the enforcement of Court orders) it is important for the Court always to satisfy itself that any jurisdiction which it exercises over parties is one that is soundly based...
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