Pantheon International Advisors Ltd v Co-Diagnostics, Inc.

Hearing dates: 9 th November 2022 & 28 th July 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 28 th July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This judgment relates to the defendant's application seeking a declaration that the English court has no jurisdiction to try the claims in this action and to set aside the Claim Form and Amended Particulars of Claim, (“the APOC”), in addition to setting aside service of the same.

After the defendant's application was issued, the claimant issued a cross-application to re-amend its Amended Particulars of Claim (the “RAPOC”) to plead reliance upon a contract dated 3 ^rd February 2016 in the alternative to the main claim in respect of an alleged contract dated 18 ^th October 2018, but the hearing of that application has been deferred. However, I previously ruled that as the defendant had relied on the draft RAPOC when filing evidence in support of their jurisdictional challenge, I too would require sight of all relevant material pertaining to the existence and status of the prior agreements between the parties dated 2016 and 2018, although I am aware that the status of those agreements is disputed.

The matter was listed for a full day's hearing, and the hearing bundles ran to 502 pages with the claimant requesting that I consider further material which their witness had not formally put into evidence. The subject of disclosure had occupied the parties in the weeks leading up to the hearing with some last-minute redactions and both parties counsel submitted they had not had a proper opportunity to review every document the parties had put together for the hearing bundle (apparently there were over 1000 pages of new material from the claimant and 5 documents from the defendant), but neither requested an adjournment. An additional 2 lever arch files of authorities were supplied by the defendant and a separate 401-page bundle was produced for the claimant along with a supplemental skeleton argument at the hearing. Accordingly, judgment was reserved.

As there were multiple points of law and procedure to consider and a wholly disputed factual matrix to apply the legal principles to, I am providing an overall index to my judgment for ease of navigation.

Index

Factual background

The claimant is a company registered in England which offers business and networking services to companies interested in growing internationally. Mr Andrew Greystoke is the sole director of that company which I will refer to as “Pantheon”. In about mid-2015, Mr Greystoke was introduced to the defendant corporation, Co-Diagnostics, Inc (“CDX”) based in Utah, USA, which specialises in supplying a range of products and services to diagnostic laboratories and others relying on a particular form of technology, polymerase chain reaction technology, (commonly known as “PCR”). Whilst the difficult financial cashflow situation of the company prior to receipt of substantial funding in around 2017 appears to be acknowledged by the claimant there is no dispute that there have been significant financial boosts since then and that demand for the company's products has been significantly elevated during/since the Covid-pandemic.

On 3rd February 2016 the parties entered into a written agreement (“the 2016 contract”) whereby Pantheon would assist CDX in raising capital in the UK markets through pursuing a listing on the London Stock Exchange or the AIM. CDX asserts that no substantive services were provided by Pantheon under the 2016 contract and that it has lapsed. Pantheon says, on the contrary, that services were provided but not paid for and the 2016 contract has been superseded by a new agreement in 2018. The 2016 contract contained an exclusive jurisdiction clause in favour of the English court, as does the alleged 2018 contract and both contain clauses that the governing law of the contract shall be that of England and Wales.

The initial Claim Form in this action, as opposed to the APOC accompanying it, did not reference the 2016 contract but relied solely upon breaches of the subsequent alleged agreement produced in 2018 but which only Pantheon signed, (“the alleged 2018 contract”). That agreement contains a multi-tiered dispute resolution procedure at clause 23 and at clause 25 an exclusive English jurisdiction agreement. As indicated above it is the claimant's case that the purpose of the alleged 2018 contract was to replace the 2016 contract and that upon execution it would not seek any outstanding payments under the 2016 contract. This, it averred, was due to regulatory issues for the defendant that would be caused by relying upon the 2016 contract which had not been disclosed to their shareholders and others in breach of US security laws. The defendant however is quite clear that there has been no such breach as any such disclosure was only necessary for new contracts entered after they became listed as a public company in summer 2017, and that following listing there is no requirement to disclose historic contracts. As mentioned at paragraph 2 above, shortly after the issue of proceedings, and prior to service of the claim, the claimant felt it was necessary to add further particularisation into the factual matrix of its Particulars of Claim at paragraphs 6–12 of the APOC by specifically referencing the 2016 contract, its terms, various events that the claimant stated resulted in breach after the 2016 contract had been executed and, by averring that “the Defendant sought retroactively to remedy the breach by replacing the 2016 Agreement with the present Contract”. The claimant asserted that the defendant was estopped from denying the validity of the alleged 2018 contract by its conduct and representations after the defendant's...