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	England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> ICBCL Financial Leasing v CG Commercial Finance [2014] EWHC 3156 (Comm) (14 August 2014) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2014/3156.html Cite as: [2014] EWHC 3156 (Comm)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		14 August 2014

Thursday, 14 August 2014

1. MR JUSTICE MALES: This is the return date following the grant by Mr Justice Andrew Smith on 7 August of an anti-suit injunction to restrain the defendant from pursuing proceedings in California. The injunction was granted on an interim basis. Since then the parties' representatives, the defendant being represented by Covington and Burling LLP in New York, have been discussing the procedure with a view to adjourning the return date to as to enable the defendant to file evidence resisting the injunction. However, that process did not in the end result in agreement, and the matter has therefore come before me today.
2. The defendant has not been represented but I have read a letter dated 13 August, that is, yesterday, from Covington and Burling in New York, signed by Mr C. William Phillips, which was written to the claimant's solicitors, and requested that it should be brought to my attention, as it has been. It is said in that letter that it is hoped that next week the defendant will be able to appoint English counsel, and to address a reasonable schedule for the finding of evidence. I would expect that the reference to English counsel is simply the US way of referring to English lawyers, and therefore in practice probably means solicitors.
3. It seems to me that it is appropriate for this matter to be adjourned, and for the injunction which was granted by Mr Justice Andrew Smith to be continued in the meanwhile. The essential issue appears to be whether the jurisdiction clause in the agreement between the parties provides for exclusive English jurisdiction or only non-exclusive English jurisdiction. It appears to me that there is at least a good arguable case that, on its true construction, it does provide for exclusive jurisdiction, and on that basis the injunction should continue in the meanwhile.
4. There is a further issue, in relation to what are called "the Does". Those are unidentified individuals who are also made defendants in the US proceedings, who are said to have acted as agents. It is said that each defendant in the US, that is to say the claimant in this proceeding, and each of "the Does", has acted as an agent of the others, and within the course and scope of the agency. Otherwise, however, it is not very clear from the Complaint exactly who "the does" are, or what they are supposed to have done, but I would infer that the likelihood is that this represents an attempt to hold individual officers or employees of the claimants personally liable as defendants in the California proceedings. It does not appear, however, from the Complaint, that there is any independent claim against them, that is to say, any claim which is independent of what they are alleged to have done in their capacity as officers or employees of the claimant in the English proceedings.
5. In those circumstances, it seems to me that there is a good arguable case either that those individual "Does", whoever they may be, are entitled to take the benefit of the jurisdiction clause, or if not, perhaps because of privity of contract concerns, that suing them for acts done in the capacity which I have mentioned would be vexatious and oppressive. In those circumstances I am prepared to extend the injunction to cover the proceedings against "the Does". Mr Justice Andrew Smith last week did not consider that was necessary, but there is now going to be a longer hiatus before this matter will be more fully determined as a result of the rescheduling which is going to happen.
6. So far as that is concerned, there should be a hearing fixed for the first available date after 1 October, and that date should be fixed during the course of the next week, with the claimant giving at least 24 hours notice to Covington and Burling of the date and time when it intends to fix the hearing. That will allow sufficient time for the filing of whatever evidence may be necessary from the defendant.
7. There is one further matter, and that is the claimant seeks an order for alternative service, entitling it to serve the claim form and other documentation on Covington and Burling's London office. However, it seems to me that this is not necessary. The reason put forward by Mr Nigel Jacobs QC, who has represented the claimants, is that there is a concern that the return date should not be jeopardised by the fact that service of the claim form and the time for acknowledgement of service of 22 days thereafter should run up against the return date, leading to problems. But I anticipate that these problems will not arise. It is to be expected that Covington and Burling will do what they have said that they hope to do, which is to appoint English lawyers, and that service would therefore be accepted. Even if that hope is not fulfilled, however, the defendant is clearly aware of and has copies of all the relevant documents. If it were to choose to require the claim form and other documents to be served under the Hague Convention, that would not, in itself, and in the absence presently unforeseeable circumstances, be any reason for the hearing not to go ahead on the return date at whatever date in October, or as soon as may be thereafter, the court can accommodate. So it seems to me that there is no necessity for an order for alternative service, and in view of the considerations discussed in the case of Deutsche Bank v Sebastian Holdings Inc. [2014] EWHC 112 (Comm) , which Mr Jacobs has very properly drawn to my attention, it seems to me that it is preferable not to make such an order at any rate at this stage.