Idemia France SAS v Decatur Europe Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Salter |
| Judgment Date | 15 April 2019 |
| Neutral Citation | [2019] EWHC 946 (Comm) |
| Docket Number | Claim No CL-2018-000390 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 15 April 2019 |
[2019] EWHC 946 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice. Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Richard Salter QC
Sitting as a Deputy Judge of the High Court
Claim No CL-2018-000390
Mr Stephen Midwinter QC (instructed by Cleary Gottlieb Steen & Hamilton LLP) appeared for the Claimant
Mr Ian Clarke QC (instructed by K&L Gates LLP) appeared for the Defendants
Hearing dates: 3, 4 April 2019
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
This is a dispute about jurisdiction.
The underlying commercial dispute between the parties concerns a claim by the First Defendant (“Decatur”) and the Second Defendant (“Tiger”) for additional payments from the Claimant (“Idemia”). Decatur and Tiger allege that Idemia, when making payments to them under contracts for the provision of goods and services in Bangladesh, deducted discounts (“the Discount Sums”) to which, in the events which have happened, Idemia was not contractually entitled. Decatur and Tiger therefore claim that Idemia is now liable to pay them the Discount Sums which it had previously deducted.
The dispute about jurisdiction has arisen in this way. Decatur (which is an English company) and Tiger (which is incorporated in Bangladesh) have brought an action for the Discount Sums against Idemia in the courts of Bangladesh. Idemia (which is a French company) claims that that action (“the Bangladesh Action”) has been brought in breach of the jurisdiction provisions in the underlying contracts, which confer exclusive jurisdiction upon the competent courts of Geneva, Switzerland. Decatur and Tiger disagree, claiming that the subject matter of the Bangladesh Action is not covered by the jurisdiction provisions on which Idemia relies.
It might be thought that the obvious forum in which that dispute as to jurisdiction should be resolved would be the courts of Switzerland or, possibly, those of Bangladesh. However, Idemia says that its contractual right to be sued in Switzerland (and nowhere else) means that it cannot be forced to litigate in Bangladesh. As for the courts of Switzerland, Idemia says that the Swiss courts do not have power to issue the anti-suit injunction which it needs to restrain the further prosecution of the Bangladesh Action.
Idemia has therefore brought this action before the English courts. In it, Idemia claims to be entitled indirectly to enforce the jurisdiction provisions on which it relies by enforcing guarantees which Idemia claims that Decatur and Tiger have each given for the other's obligations under the relevant contracts, and which contain English law and jurisdiction clauses.
The Third Defendant (“Mr Rahman”) is alleged by Idemia to own and control Decatur and Tiger, and to have procured their breaches of the jurisdiction provisions of the relevant agreements and/or to have conspired with Decatur and Tiger. Idemia says that the English courts also have jurisdiction over Mr Rahman, both because he is a proper party to Idemia's action against Decatur and Tiger, and because Mr Rahman has been served in England with these proceedings.
Decatur and Tiger dispute that the guarantee documents on which Idemia's claim in the present action is founded amount to enforceable contracts. Mr Rahman disputes that he has been properly served with the proceedings. All of the Defendants assert that the English courts have no jurisdiction to entertain this action and/or should stay these proceedings on forum non conveniens or case management grounds.
On 15 June 2018 Robin Knowles J gave Idemia permission under CPR 6.36 and 6.37 to serve these proceedings on Tiger in Bangladesh but refused Idemia's application for an interim injunction. Idemia has issued an application for summary judgment, which is due to be heard on 14 May 2019.
There are 5 applications presently before the court:
9.1 The First Defendant's jurisdictional challenge, made by Application Notice dated 12 July 2018;
9.2 The Third Defendant's first jurisdictional challenge, made by Application Notice dated 17 July 2018;
9.3 The Second Defendant's jurisdictional challenge, made by Application Notice dated 28 August 2018;
9.4 The Third Defendant's second jurisdictional challenge, made by Application Notice dated 11 September 2018; and
9.5 The Defendants' application for permission to adduce expert evidence, made by Application Notice dated 8 March 2019.
Both parties have served extensive evidence in connection with these applications.
10.1 The Defendants have relied upon:
10.1.1 The witness statement of Mr Dariusz Kaliszewski, made on 14 June 2018. Mr Kaliszewski is a director of Decatur;
10.1.2 The witness statement of Mr Sovan Mahmud, made on 12 July 2018. Mr Mahmud is a partner in the firm of Quader Mahmud Azam LP, which acts for Decatur and Tiger in Bangladesh
10.1.3 The first witness statement of Mr Rahman, made on 17 July 2018;
10.1.4 The second witness statement of Mr Rahman, made on 28 August 2018;
10.1.5 The third witness statement of Mr Rahman, made on 10 September 2018;
10.1.6 The fourth witness statement of Mr Rahman made on 16 November 2018; and
10.1.7 The witness statement of Mr Syed Jawad Quader, made on 27 March 2019. Mr Quader is the managing partner of Quader Mahmud Azam LP.
10.2 The Claimants have relied upon:
10.2.1 The first witness statement of Mr Sunil Gadhia, made on 6 June 2018. Mr Gadhia is a partner in Cleary Gottlieb Steen & Hamilton LLP, the solicitors for Idemia, and this first witness statement was made in support of Idemia's application (a) for permission to serve the Claim Form, Particulars of Claim and other documents relating to these proceedings out of the jurisdiction on Tiger; and (b) for an interim injunction requiring the Defendants to discontinue the Bangladesh Action;
10.2.2 The second witness statement of Mr Gadhia, made on 12 June 2018 (also in connection with the Claimant's applications); and
10.2.3 The third witness statement of Mr Gadhia, made on 28 September 2018.
Both parties have also served expert evidence (which is the subject of the Defendants' application for permission referred to in paragraph 9.5 above):
11.1 In relation to the law of Bangladesh:
11.1.1 The Defendants have relied upon the expert reports of Mr Rokanuddin Mahmud dated 12 July 2018 and 15 November 2018;
11.1.2 The Claimants have relied upon the expert report of Syed Ishtiaq Ahmed & Associates dated 28 September 2018.
11.2 In relation to the law of Switzerland:
11.2.1 The Defendants have relied upon the expert reports of Professor Christoph Müller dated 10 July 2018, 28 August 2018 and 16 November 2018;
11.2.2 The Claimants have relied upon the expert report of Dr Manuel Bianchi Della Porta dated 27 September 2018.
CPR 35.4(1) states in terms that “No party may .. put in evidence an expert's report without the court's permission”. It is apparent from the dates given above that the Defendants served their experts' reports on Idemia well before they applied for the necessary permission. Idemia could have responded by applying to the court to exclude the Defendants' evidence. However, as a matter of practicality and prudence, it chose instead to respond with its own reports. Mr Stephen Midwinter QC, who appeared before me on behalf of Idemia, submitted that the expert evidence on which the Defendants seek to rely consists largely of irrelevant and inadmissible material, and that I should therefore refuse to grant retrospective permission. The parties nevertheless agreed prior to the hearing that I should read all the expert evidence served on both sides de bene esse, and I have done so. Both sides also made submissions at the hearing before me in relation to the expert evidence.
In the circumstances, I propose to take the pragmatic course of granting retrospective permission to both sides to rely upon the expert evidence listed above. I accept Mr Midwinter's submission that much of the evidence offered by Professor Müller consists of Professor Müller expressing his own views on the proper interpretation of the Decatur Agreement and the Tiger Agreement, rather than setting out the relevant principles of Swiss law, and is therefore inadmissible. It is well-established that “the role of an expert, unless the court is concerned with special meanings, is to prove the rules of construction of the foreign law, and it is then for the court to interpret the contract in accordance with those rules” 1. However, since parts of the evidence of Professor Müller and of Dr Della Porta do set out the relevant principles of construction under Swiss law, and since I have already read and considered all their evidence, the practical course is for me to give permission for the evidence to be adduced, but to disregard the inadmissible parts. I can deal with any costs consequences at the appropriate time.
The background facts
The facts which form the background to these applications are not in dispute.
In April 2014, the Bangladesh Election Commission (“the BEC”) invited tenders for the “Procurement, Production and Distribution of Smart NID Cards for Citizens of Bangladesh”. In anticipation of that invitation to tender, Idemia (which was then called Oberthur Technologies SA) invited Tiger to be Idemia's sub-contractor, and Decatur to be Idemia's supplier. In January 2014, Idemia entered into a “teaming agreement” with Tiger and Decatur in order to prepare a response to the BEC.
During their negotiations, Tiger and Decatur submitted quotations to...
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