Masri v Consolidated Contractors (Oil and Gas) Company SAL
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RIX,LORD JUSTICE RICHARDS |
| Judgment Date | 06 February 2009 |
| Neutral Citation | [2005] EWCA Civ 1436 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 2009 |
| Docket Number | A3/2005/1195 |
[2005] EWCA Civ 1436
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
COMMERCIAL COURT DIVISION
(MR JUSTICE CRESSWELL)
Royal Courts of Justice
Strand
London, WC2A 2LL
The Master of the Rolls
(The Rt Honourable Sir Anthony Clarke)
Lord Justice Rix
Lord Justice Richards
A3/2005/1195
MR CHARLES ALDOUS QC and MR SIMON BIRT (instructed by Messrs Herbert Smith Llp) appeared on behalf of the Appellants
MR CHRISTOPHER CARR QC and MR S SALSEDO (instructed by Messrs Simmons & Simmons) appeared on behalf of the Respondent
( Approved by the Court)
SIR ANTHONY CLARKE MR:
Introduction
This is an appeal from part of an order made by Cresswell J on 17 May 2005. By paragraph 3 of that order, the judge dismissed applications by the defendants in claim no 2004 Folio 831 for declarations that the court had no jurisdiction to entertain the claimant's claim against them and in each case for an order setting aside service of the claim form. Permission to appeal was refused by the judge but subsequently granted by Waller LJ.
The applications
The applications arose in this way. The claimant, Mr Masri, claims damages against Mr Said Khoury and four companies in all of which Mr Khoury has a direct or indirect interest. They are Consolidated Contractors International UK Limited, ("CCUK"); Consolidated Contractors Group SAL ("CC Holding"); Consolidated Contractors International Company ("CCIC") and Consolidated Contractors (Oil and Gas) ("CC Oil and Gas").
The claim against Mr Khoury and the four companies is the same, namely damages for breach of a written contract which was dated 6 November 1992 and was made in London. I shall describe the claim as the claim for damages because that is how it is pleaded. However it may be that on analysis it is a claim in debt for sums due under a contract.
As at 6 November 1992 Mr Masri was resident in London where he had lived since 1982. He moved to Jordan in about 1993 or 1994 and has been resident there every since. Mr Khoury is President of CCIC and CC Holding and is domiciled in Greece. CC Holding is simply a holding company and is incorporated in Lebanon. CCIC is also incorporated in Lebanon and is a subsidiary of CC Holding. It has its principal place of business in Greece. CCUK is indirectly a subsidiary of CC Holding, and CC Oil and Gas is a direct subsidiary of CC Holding. They are incorporated in England and the Lebanon respectively.
As summarised by the judge, the position under the 1992 agreement is briefly as follows. The agreement relates to rights in an oil field in South Yemen known as the Masila block or Masila concession ("the concession"). The relevant oil interest, a 10% interest in the concession, was initially held by CCIC. It was agreed to be assigned to CC Oil and Gas by an assignment dated 25 October 1992. The defendants contend that CCIC still held the interest at the time of the 1992 agreement because the assignment had not then taken effect. Mr Masri contends that the assignment was effected on 25 October 1992 so that by the time of the November 1992 agreement the relevant interest had passed to CC Oil and Gas. The interest is currently held by CC Oil and Gas. I will return to the 1992 agreement in a moment.
In the first action (2004 Folio 124) Mr Masri claimed against CCUK, alternatively CC Holding. Mr Masri has discontinued the claim in the first action against CC Holding. In the second action (2004 Folio 831) Mr Masri claims in the alternative against Mr Khoury, CC Holding, CCIC and CC Oil and Gas.
The first action was commenced by claim form dated 18 February 2004 and the second action was commenced by claim form dated 8 October 2004. The claim form in the first action was served on CCUK in England and on CC Holding by serving it in England on CCUK as its agent, pursuant to CPR 6.16. The claim form in the second action was served on Mr Khoury and CCIC in Greece, where they were both domiciled. It was served without permission, pursuant to Council Regulation EC44/2001 ("the Regulation"). It contained this standard endorsement:
"I state that the High Court of England and Wales has power under the Civil Jurisdiction and Judgments Act 1982 to hear this claim and that no proceedings are pending between the parties in Scotland, Northern Ireland or another Convention territory of any contracting state as defined by section 1(3) of the Act."
The endorsement does not state the ground upon which the claimant asserts that the court has jurisdiction in the case of each of the defendants. However, it conforms with CPR 6.2(1) and the Practice Direction 6BPD.2.
The claim form was also served on CC Holding and CC Oil and Gas in Lebanon, pursuant to permission to serve out of the jurisdiction which was granted on an application made without notice under CPR 6.20. CCUK sought summary judgment in the first action on the ground that there was no prospect of a finding that CCUK was a party to the 1992 agreement. The judge dismissed that application in paragraph 2 of his order of 17 May 2005. Permission to appeal was refused by Waller LJ on paper and by Moore-Bick LJ after oral argument. As a result, the claim against CCUK is proceeding in England.
In the second action Mr Khoury and CCIC submitted that Mr Masri must proceed against them in their place of domicile, namely Greece, under Article 2 of the Regulation. Mr Masri submitted that he was entitled to proceed against them by reason of Article 6. 1 or 5.1 of the Regulation. The judge accepted Mr Masri's submissions and accordingly dismissed the applications made by Mr Khoury and CCIC.
The positions of CC Holding and CC Oil and Gas were somewhat different because they are not domiciled in a state to which the Regulation applies. In those cases, the issues were whether there was a serious issue to be tried as between Mr Masri and CC Holding and/or CC Oil and Gas, and whether Mr Masri was able to establish that England was clearly the appropriate forum for the trial of any claim against them.
In the light of his conclusions on CCUK's application for summary judgment and on the applications by Mr Khoury and CCIC based upon Article 2 of the Regulation, the judge refused the applications of CC Holding and CC Oil and Gas. Having dismissed all the applications, the judge ordered the consolidation of the actions with the result that, subject to the result of this appeal, Mr Masri's claims against all the defendants will proceed in one action which, unless settled, will, as I understand it, be tried next year.
The Appeal
The principal issues in this appeal are whether the judge was correct to hold that Mr Masri was entitled to proceed in England against Mr Khoury and CCIC under Article 6. 1 or 5.1 of the Regulation. If the appeals succeed, so that any claims against Mr Khoury and CCIC should proceed in Greece, CC Holding and CC Oil and Gas say that, as a matter of forum conveniens so too should the claims against them.
The Regulation
The Regulation replaced the Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 1968 (as amended) ("the Brussels Convention"). It reproduced many of the provisions of the Convention but for some reason gave them different numbers. So far as relevant for present purposes, the Regulation provides as follows:
"Section 1
Jurisdiction, General Provisions
Article 2
1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of the member State.
…
Article 3
1. Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.
…
Section 2
Special Jurisdiction
Article 5
A person domiciled in a Member State may, in another Member State, be sued:
1. (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
—in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,
—in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,
(c) if subparagraph (b) does not apply then subparagraph (a) applies;
…
Article 6
A person domiciled in a Member State may also be sued:
1. where he is one of a number of defendants, in the court for the place where any one of them is domiciled provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings;
2. as a third party in an action on a warranty or guarantee or in any other third party proceedings, in the seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;
3. on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending;
4. in matters relating to a contract, if the action may be combined with an action against the same defendant in matters...
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