Francis Joseph Campeau v Gottex Real Asset Fund 1 (OE) Waste S.À.R.L

Hearing date: 10 July 2025

Further submissions: 31 July 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 12 September 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

This is an application by the Defendant (‘OE Waste’) seeking to set aside service of the Claim Form on it out of the jurisdiction. The basis of the application is that the courts of England and Wales do not have or should not exercise any jurisdiction which they may have over the claim. The Claimant (‘Mr Campeau’) served the present proceedings out of the jurisdiction on OE Waste without permission, relying on CPR r. 6.33(2B). The central question before the court is whether he was entitled to do so.

Background

The dispute arises out of a sale and purchase agreement between OE Waste and Geco Holdco Ltd (‘Geco’) dated 17 April 2019 (‘the SPA’). By the SPA, OE Waste sold the entire issued share capital of Granville Ecopark Holding Company Ltd (‘GEHCL’) to Geco. The initial consideration was £17.7 million plus any deferred consideration to be calculated in accordance with Schedule 11 of the SPA, as well as payment of £30.4 million to enable repayment of various debts. No deferred consideration was in the event paid.

At the time of the SPA, Mr Campeau was a director of GEHCL. He was also head of the investment advisory team of South West Capital Partners LLP, which provided advice to Gottex Fund Management SARL, the investment advisor to the fund which owned OE Waste. OE Waste contends that he was also a de facto director of OE Waste.

Clause 10 of the SPA provided as follows:

‘10.1 Subject to clause 10.2, the liability of the Warrantors under the Transaction Documents shall be subject to the provisions of Schedule 6 (Limitations on Liability).

10.2 Nothing in this clause 10 or in Schedule 6 (Limitations on Liability) shall exclude or limit any liability or remedy in respect of fraud.

10.3 Each of the Warrantors undertakes that it will not (and will procure that none of its Affiliates will) bring any claim or other action (including a claim for contribution under the Civil Liability (Contribution) Act 1978) in respect of negligence or otherwise (a “Warrantor Claim”) against any Target Company (or any of their respective directors, officers, employees or agents) in relation to any matter arising (directly or indirectly) out of or in connection with any Transaction Document. To the extent that any such Warrantor Claim exists (if any and without prejudice to the aforesaid), each Warrantor irrevocably and unconditionally waives the right to bring any Warrantor Claim against or recover any sums from any Target Company (or any of their respective directors, officers, employees or agents) in relation to any Warrantor Claim. It is intended that any Target Company (or any of their respective directors, officers, employees or agents) shall be entitled to the benefit of the undertakings, releases and waivers provided for in this clause for the purpose of, inter alia, the Contracts (Rights of Third Parties) Act 1999.’

Pursuant to Clause 1.1 of the SPA, ‘Warrantors’ were defined as including ‘the Seller’, i.e. OE Waste, and ‘Target Company’ was defined as including ‘the Company’, i.e. GEHCL. The term ‘Transaction Documents’ included the SPA.

Clause 17.6 of the SPA provided:

‘Except as expressly provided in this deed, a person who is not a Party to this deed will have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of, or enjoy any benefit under, this deed.’

Clause 18 of the SPA, which dealt with jurisdiction and governing law, provided as follows:

‘18.1 This deed and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales.

18.2 Each Party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this deed (including any dispute relating to any non-contractual obligations arising out of or in connection with this deed) and that accordingly any proceedings arising out of or in connection with this deed (including any proceedings arising out of or in connection with any such non-contractual obligations) shall be brought in such courts.

18.3 Each Party irrevocably submits to the jurisdiction of the courts of England and Wales and waives any right that it may have to object to an action being brought in those courts or to claim that the action has been brought in an inconvenient forum.’

On 27 December 2023, OE Waste commenced proceedings in Luxembourg against, inter alios, Mr Campeau, on the basis that OE Waste had sold GEHCL on terms which did not adequately reflect its value. It is alleged that Mr Campeau, as a de facto director of OE Waste at the time, had acted negligently or otherwise in breach of duty in connection with the negotiation of the SPA, such that GEHCL had been sold at an undervalue. In the Luxembourg proceedings it is alleged that GEHCL was sold for some £44.5 – 80 million less than its value.

A statement of Mr Da Silva, a partner of MOLITOR Avocats, who acts for OE Waste, states that the claims in the Luxembourg proceedings include claims for fraud and/or negligence, and that it is OE Waste's intention to allege fraud against Mr Campeau.

Mr Campeau received documents exhibited to the Luxembourg Writ in June 2024. On 17 September 2024, Mr Campeau filed a response to the Luxembourg proceedings, contesting the jurisdiction of the Luxembourg courts, and in the alternative contending that the proceedings are a nullity or that OE Waste lacks standing to commence proceedings. For the purposes of the present hearing before this court, Mr Campeau has made it clear that he denies any liability to OE Waste; that he says that he was not a de facto director of OE Waste, and did not participate in the decision to enter into the SPA; that even if he owed any duties to OE Waste, they were not breached; and that the SPA was the culmination of lengthy and difficult arms' length negotiations between OE Waste and a number of potential buyers, throughout which OE Waste was advised by an investment bank. Mr Campeau's case is that the claim brought against him in the Luxembourg proceedings is entirely without merit.

Mr Campeau also has what is described, on his behalf, as a ‘more fundamental objection to OE Waste's claim’, namely that it is brought in breach of clause 10.3 of the SPA. He also contends that, given that any claim against him in respect of the SPA will necessarily create a dispute over the scope of clause 10.3, clause 18.2 requires any such claim to be brought against him in England.

On 11 November 2024, Mr Campeau commenced Part 8 proceedings in this court seeking (1) a declaration that OE Waste has waived any right to bring the claim which it is currently asserting in the Luxembourg proceedings; (2) an injunction requiring OE Waste to discontinue the Luxembourg proceedings against Mr Campeau and prohibiting it from (a) bringing any further claim or other action in respect of negligence or otherwise against him in relation to any matter arising directly or indirectly out of or in connection with the SPA, save insofar as it consists of a claim arising solely out of fraud, and (b) bringing any proceedings arising out of or in connection with the SPA in any court other than the courts of England and Wales; and (3) damages. This claim was served in Luxembourg without permission. This was said to be done in reliance on CPR 6.33(2B)(a). Subsequently, in a witness statement served on 4 February 2025, it was said that Mr Campeau was entitled to, and did, rely on CPR 6.33(2B)(b) as well; and in May 2025 it was indicated that reliance was also placed on CPR 6.33(2B)(c).

OE Waste filed an acknowledgement of service dated 9 December 2024, indicating an intention to contest the jurisdiction of the English courts. On 6 January 2025, OE Waste filed the application challenging the jurisdiction of this court which is currently before me.

To guard against a situation in which this court finds that the service of the Claim Form which has been effected is invalid, on 7 May 2025, Mr Campeau filed notice of an application to extend the validity of the Claim Form, with a view to applying for permission to serve the Claim Form out of the jurisdiction. Mr Campeau has in fact issued an application for retrospective permission to serve out, but that has not been listed at the time of the hearing. OE Waste has confirmed that it is content for the application for an extension of the validity of the Claim Form, if it arises, to be determined as part of the present disposal of its jurisdiction challenge. As I say below, I regard it as unfortunate that this challenge has been heard without at the same time considering the application for permission to serve out.

CPR r. 6.33(2B)

In order properly to frame the arguments which arise on the present jurisdiction challenge, it is helpful to set out both the provisions of CPR r. 6.33(2B), and the relevant provisions of the Hague Convention referred to in CPR r. 6.33(2B)(a).

Thus, CPR r. 6.33(2B) provides as follows:

‘(2B) The claimant may serve the claim form on a defendant outside the United Kingdom where, for each...