QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ANTONIO GRAMSCI SHIPPING CORPORATION & OTHERS
|- and -
MR R MILLETT QC, MR R SLOWE (of S J Berwin LLP), Professor A BRIGGS and MR J WILLAN (instructed by S J Berwin LLP) for the Defendant
Hearing dates: 27 and 28 January, 2 and 4 February 2011
Crown Copyright ©
Mr Justice Burton:
"(v) … a real and prima facie cogent case to answer that the Claimants' corporate opportunities were diverted …that the profits earned by the [Corporate] Defendants should have been earned by the Claimants and, hence, by LSC……
(vi) …the secrecy of the Scheme is a powerful pointer to all not being well with it …
(vii) …it is difficult to avoid the conclusion that the "masterminds" behind the Scheme … knew enough as to the transactions involved to expose them to a real and cogent case of dishonesty."
i) the Corporate Defendants were "merely used as vehicles" (Ms Glebova's fifth affidavit paragraph 13) for the 63 chartering transactions in which the Corporate Defendants were interposed between the Claimants and third parties:
ii) the decisions were taken by an informal organisation with regular meetings, called the "Table", of which the Defendant and the other Beneficial Owners were the dominant members, who were, as Gross J found (paragraph 8 of his Judgment), "all senior executive officers of LSC and had, or are to be taken as having had, effective control of the tanker fleet department of LSC".
"… where there is a good arguable case that the requirements for piercing the corporate veil have been satisfied and that the Defendant is the alter ego, or one of the alter egos of the Corporate Defendants, there is also a good arguable case that he should be regarded as stepping into their shoes so that the acts of those Corporate Defendants are seen as his acts. For this reason, there is a good arguable case that the Defendant is to be seen as agreeing to the jurisdiction of the court by reason of the jurisdiction agreement set out in Clause 41 of the Charters in a manner which satisfies the requirement of Article 23."
i) Whether the Claimants can pierce the corporate veil on the basis that the Corporate Defendants were used, by the Defendant (and the other Beneficial Owners) controlling them, as a device for the purpose of a fraud on the Claimants, and if so, whether the Defendant (with the others) is liable as a party to the charterparties which the Claimants were caused to enter into with the Corporate Defendants, and
ii) if so, whether, by virtue of the exclusive jurisdiction clause in the charterparties, jurisdiction can be founded against the Defendant under Article 23 of the Judgments Regulation EC No 44/2001, or
iii) whether the Defendant has submitted to the jurisdiction of the English court by reference to Article 24.
i) Because the Corporate Defendants were set up and used as a fraudulent device to conceal the personality and involvement of (among others) the Defendant ("Piercing the Veil"):
ii) Whether the Defendant (with others) controlled the Corporate Defendants ("Control"):
iii) Is it required to be, and if so is it, necessary to pierce the corporate veil ("Necessity")?
iv) Is the Defendant liable to the Claimants as party to the charterparties ("Liability in contract")?
v) Have the Claimants elected against pursuing the Defendant in contract, by issuing proceedings and obtaining judgment against the Corporate Defendants ("Election")?
vi) Is the Defendant a party to the jurisdiction clause ("Separability")?
i) Does English law apply to the identity of the parties to the contract ("Identity of the parties")?
ii) Was there consensus between the Claimants and the Defendant so as to found jurisdiction within Article 23 ("Consensus")?
Piercing the Veil
"In my judgment the court is entitled to "pierce the corporate veil" and recognise the receipt of the company as that of the individual(s) in control of it if the company was used as a device or façade to conceal the true facts, thereby avoiding or concealing any liability of those individual(s)."
"Burnstead is simply a creature company used for receiving profits for which equity holds Mr Dalby to be accountable to ACP. Its knowledge was in all respects the same as his knowledge. The introduction into the story of such a creature company, is, in my view, insufficient to prevent equity's eye from identifying it with Mr Dalby: see generally, as to the readiness of the Courts in appropriate cases to pierce the corporate veil, re: H… 2 BCLC 500 at 511, per Rose L.J."
"But I do not think that it is necessary to resort to piercing or lifting the corporate veil, since Cook v Deeks shows clearly … that the directors are equally liable with the corporate vehicle formed by them to take unlawful advantage of the business opportunities"
and to the words of Warren J in Dadourian at para. 682. Warren J there said:-
"In all of the cases where the court has been willing to pierce the corporate veil, it has been necessary or convenient to do so to provide the claimant with an effective remedy to deal with the wrong which has been done to him and where the interposition of a company would, if effective, deprive him of that remedy."
What Warren J said seems to me plainly not to be the case. As will be seen, in Gilford Mr Horne was under a restrictive covenant preventing competition (clause 9) in his contract of employment, and he set up a company in order to disguise the existence of such competition. There would not have been any difficulty in putting the case, and seeking or granting a remedy, by reference to a claim against the company for knowing procurement of Mr Horne's breach of contract, or simply relying upon agency, by granting an injunction against Mr Horne restraining breaches by himself his servants or agents, which would plainly have included his company: but this was neither done nor addressed. Similarly in Jones v Lipman  1 WLR 832 where Mr Lipman personally entered into a contract for sale of a property to the plaintiff, and then sold on to his puppet company (as found), there could have been relief and remedy, as Mr Millett himself pointed out by virtue of his researches in Snell's Equity, by the grant of an order in equity for specific performance by reference to the estate contract, against the puppet company as being a third party purchaser with notice: but again this was not addressed or considered at all, and specific performance was granted only by reference to Gilford and the piercing of the veil. In Trustor too, it is plain that there could have been a claim against the puppeteer for equitable compensation for breach of fiduciary duty.
"684.…It seems to me …that whilst a person committing the tort of deceit should be liable for all the loss which flows from his misrepresentation, it would be unprincipled to impose a liability on him for the loss of bargain suffered by a misrepresentee in respect of a contract with a third party with whom he had been induced to contract by the misrepresentation"
685. …there is no need and it would be inappropriate, to lift the veil in order to provide A with a contractual remedy against B; A recovers all his loss arising as a result of the misrepresentation by his tortious claim in deceit.
686. If that is correct, the question arises whether it is necessary in the present case to lift the veil …in order to provide the Claimants with the remedy to which they are entitled. In my judgment, it is not. Charlton, if it was being used as a device at all, was being used to hide the involvement of Jack and Helga and, if that concealment had not taken place, the Option Agreement would not have been entered into. The Claimants have their remedy against Jack and Helga in the form of an action for fraudulent misrepresentation. There is simply no need, in order to give the Claimants redress for that misrepresentation, to lift the veil at all: indeed to do so would achieve nothing in relation to that wrong."
"130. Given that I have found that the claim in deceit succeeds, it is not strictly necessary to decide whether this is an appropriate case in which to pierce the corporate veil and permit a claim which would otherwise be pursued against the company to be pursued against the defendant":
and he refers to Warren J's conclusion in paragraph 685 of Dadourian that the claimant "recovers all his loss arising as a result of the misrepresentation by his tortious claim in deceit".
Liability in Contract
i) In Gilford, the puppet company was not in existence at the date when Mr Horne entered the restrictive covenants. The remedy that was granted, and upheld on appeal, was an injunction restraining breach of clause 9 against both Mr Horne and his company. Mr Rainey submitted that the company was treated as party to the contract – no other jurisdiction to grant the injunction against Mr Horne and the company was relied upon. Mr Millett submitted that it was a question of remedy only, but Lord Hanworth MR at 956 did expressly refer to breaches of the covenant by Mr Horne and his company, which tends to support Mr Rainey's submission. It is a case in which, if such is what occurred, the puppet was liable under the puppeteer's contract, but, submits Mr Rainey, there is nothing to prevent the puppeteer being made liable under the puppet's contract and he would be if, for example, a contract for sale by Gilford to the puppet company (in breach of a similar obligation on non-competition) were sought to be enforced against the puppeteer.
ii) In Jones the puppet company was probably in existence at the date of the sale contract by Lipman (though still on the shelf). Although, as Mr Millett says (see paragraph 18 above), the cause of action could have been put on a different basis, it was not. Specific performance of the contract of purchase was ordered both against puppeteer and puppet, by express reference to Gilford and piercing of the veil. Again in the reverse situation the same result could have occurred if it had been, for example, a sale by the puppet company, and the sale on had been to the puppeteer; on exactly the same basis the contract could have been enforced against both.
iii) In Dadourian, the decision of Warren J was not to lift the corporate veil so as to render "Jack and Helga" liable in contract, though to an extent the decision could be said to have been obiter, or at any rate less significant, as he concluded that he would not have lifted the corporate veil anyway (paragraphs 690-693) and that he would not have found that the fraud was dehors the company: "the fraud….was the misrepresentation not the use of a company" (at 692). There was a finding of fact that Jack and Helga would not have entered into the contract anyway "if it had been unnecessary to hide their involvement" (at 687). He considered it would be "unprincipled" to impose upon "a person committing the tort of deceit [and thus] liable for all the loss which flows from his misrepresentation …a liability … for the loss of bargain suffered by a misrepresentee" (684 cited above). He concluded:-
"687. If it had been unnecessary to hide Jack and Helga's involvement (because, counter-factually, DGI would have been willing to sell to them) it could not, I think, be suggested that the veil should be lifted so as to make them contractually liable for Charlton's breach of contract. It is certainly not the case, and I so hold, that Jack and Helga would have purchased the Tooling and General Equipment themselves rather than through a company if it had been unnecessary to hide their involvement. In my judgment, even if Charlton can properly be described as a façade or sham or device, it is not appropriate to lift the veil to make Jack and Helga contractually liable for a contract which they would never have entered into themselves.
688. In case I am wrong in that approach so that in principle the veil could be lifted to provide the Claimants' with the equivalent of a contractual remedy against Jack and Helga for loss of bargain, I should address the evidence further to determine whether this is an appropriate case, on the facts, for lifting the veil."
As I have set out above, he then concludes, at paragraph 693, that "this is not a case where it would be appropriate to lift the veil for the purposes of making Jack and Helga liable for the contractual obligations of Charlton." However, he then adds "for completeness" in paragraph 694 (b):-
"…I consider that there is a great deal of force in [counsel's] submission that the arrival on the scene of Eastcastle would not enable Jack and Helga to escape liability if the veil were…to be lifted. If the veil is to be lifted at all, it is by virtue of Jack and Helga's involvement in Charlton coupled with their fraudulent misrepresentations, in the time leading up to the Option Agreement. They effectively made themselves liable under Charlton's contract at the time of its conclusion in September 1997. They cannot escape liability by divesting themselves, even assuming that they did so, of their interest in Charlton."
"Warren J held that where a claim in deceit succeeded against the person controlling the company, it would be inappropriate to permit the veil to be lifted to enable the claimant to pursue a contractual claim against that person. As he put it, the claimant "recovers all his loss arising as a result of the misrepresentation by his tortious claim in deceit" (paragraph 685). This point was not addressed in the Court of Appeal."
Flaux J then proceeded to consider whether he would have pierced the corporate veil if for example fraudulent misrepresentations had been made but were for some reason unenforceable, such as to deprive the claimant of the remedy in deceit which he had just found was available to him. On the facts of that case, he concluded that the wrong-doing was not "dehors" the company, and that it was not a case in which the companies were being used by the defendant as a façade to disguise his wrong-doing, so that for that reason (paragraph 140) "this would not be an appropriate case in which to pierce the corporate veil … [but] the point is academic since the claimants' claim in deceit succeeds."
i) I accept the force of Mr Rainey's case that the puppeteer can be made liable, as a party to the contract, but that as a matter of public policy he cannot enforce the contract. This is, to an extent, the obverse of the case where, if a third party can establish that an agreement was entered into for its benefit, he can enforce, but not be sued under, that contract by reference to the Contracts (Rights of Third Parties) Act 1999 (see eg WPP Holdings Italy SRL v Benatti  2 CLC 142). Mr Millett raised what he said was an anomaly, if such a submission were accepted, whereby, if the victim wanted to keep alive a contract after discovery of the existence of the puppeteer, e.g. in this case to continue with a charterparty, the puppeteer, though liable under the contract, would not be able to enforce it, so as, for example, to obtain sums due under it, but that is of course not a problem, as in such an unlikely event the puppet company could still enforce the contract, and recover any monies due.
ii) Mr Rainey did run an alternative case that the puppeteer could be said to have become a party by succession, although recognising the difficulties that it is only the obligations and not the rights under the contract to which the puppeteer would be said to have succeeded: Gilford, where the company was not in existence at the time of the contract, could only be explained on that basis. He recognised however, in the course of argument, that in reality his claim in this case is put forward not by reference to any reliance upon succession, but firmly on the basis that at the date of the contract the puppeteer was, and then remained, an original party to the contract.
EU Law/English Law
"Article 23 of the Judgments Regulation applies where "the parties" have agreed that a particular court is to have jurisdiction. The agreement must be in writing or evidenced in writing. The purpose of the formal requirements is that of legal certainty. One of the fundamental parts of any agreement is who is a party to it. In my judgment therefore, the formal requirements of Art. 23 require that there is a written record of who is party to the agreement."
"1. If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the Courts of a Member State are to have jurisdiction to settle any disputes …, that court or those Courts shall have jurisdiction … Such an agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing; or
(b) in a form which accords with practices which the parties have established between themselves; or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned."
Identity of Parties
"… the national court essentially asks whether the words 'have agreed' in the first sentence of the first paragraph of Article  of the Convention must be interpreted as meaning that the jurisdiction clause must be formulated in such a way that it is possible to identify the court having jurisdiction on its wording alone.".
The Court then continues at paragraph 13:-
"The Court has held that, by making the validity of a jurisdiction clause subject to the existence of an 'agreement between the parties', [Article 23] imposes on the court before which the matter is brought the duty of examining first whether the clause conferring jurisdiction upon it was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated, and that the purpose of the requirements as to form imposed by [Article 23] is to ensure that consensus between the parties is in fact established."
The answer is then given at paragraph 15 of the judgment:-
"It follows that the words 'have agreed' in the first sentence of the first paragraph of [Article 23] cannot be interpreted as meaning that it is necessary for a jurisdiction clause to be formulated in such a way that the competent court can be determined on its wording alone. It is sufficient that the clause states the objective factors on the basis of which the parties have agreed to choose a court or the courts to which they wish to submit disputes which have arisen or which may arise between them. Those factors, which must be sufficiently precise to enable the court seised to ascertain whether it has jurisdiction, may, where appropriate, be determined by the particular circumstances of the case."
"…the national court asks about the conditions of application of the first paragraph of [Article 23]. It essentially asks whether that provision applies if the jurisdiction clause designates the court for the area where one of the parties to the original contract has its principal place of business but it is not proven that that place of business is situated in a contracting state."
This was answered in paragraph 21 of the judgment:-
"… the reply to the second question must be that the first paragraph of [Article 23] only applies, if, first, at least one of the parties to the original contract is domiciled in a contracting state and, secondly, the parties agree to submit any disputes to a court or the Courts of a contracting state."
"… the national court essentially asks whether a jurisdiction clause which has been agreed between a carrier and a shipper and appears in a bill of lading is valid as against any third party bearer of the bill of lading or whether it is only valid as against the third party bearer of the bill of lading who succeeded by virtue of the applicable national law to the shipper's rights and obligations when he acquired the bill of lading."
i) The Court at paragraph 20 of the judgment deals with the question of the identity of the parties to the original contract, and decides that national law resolves that question:-
"20 … it is settled case law that the validity of a jurisdiction clause under [Article 23] must be assessed by reference to the relationship between the parties to the original contract … It follows that it is in relation to those parties, which it is for the national court to identify, that the conditions of an application [Article 23] must be assessed. The circumstances in which a jurisdiction clause may be enforced against a person who was not privy to the original contract are the subject matter of the third question, which is considered below."
ii) The Court in paragraphs 23 and 24 of its judgment deals with the question as to which law deals with succession, concluding:-
"24 …the question whether a party not privy to the original contract against whom a jurisdiction clause is relied on has succeeded to the rights and obligations of one of the original parties must be determined according to the applicable national law."
"26. On the other hand, if, under the applicable national law, the party not privy to the original contract did not succeed to the rights and obligations of one of the original parties, the court seised must ascertain, having regard to the requirements laid down in the first paragraph of [Article 23] whether he actually accepted the jurisdiction clause relied on against him."
i) The reference in paragraph 20 to "national court" is to the national law. He illustrated this by reference to other European court judgments where the words are used interchangeably (most persuasively Powell Duffryn at paragraphs 33 and 37), and I conclude that he, and not Mr Millett, is right in this regard.
ii) The result is that both the question of the identity of the original party and the issue of whether there has been succession to the contract are decided by English law, while any question as to whether a party not suggested to have been an original party to the contract or to have succeeded to the contract consented to the terms of the jurisdiction clause – "actually accepted the jurisdiction clause relied on against him" – is a matter of EU law. Mr Rainey draws comfort from Professor Briggs in his Article referred to in paragraph 29 above where, although he is obviously primarily dealing with the question of the scope of the agreement, he states:-
"Article 23 will deal with whether it is formally valid, and whether it may be excluded from effect in the particular context in which it is to operate. But what Article 23 cannot properly do is to breathe life into that which was stillborn: if the parties did not make an agreement, the impact of Article 23 is nil."
i) He refers to paragraph 13 of the judgment (set out in paragraph 37 above), which emphasises the importance of consensus between the parties. But that is in the context of the answer to the first question, and is not apt to resolve the issue before me, in the light of the straightforward words of paragraph 20 of the judgment, set out in paragraph 41(i) above.
ii) He refers to Benincasa at paragraph 27:-
"It is also consonant with that aim of legal certainty that the court seised should be able readily to decide whether it has jurisdiction on the basis of the rules of the Convention, without having to consider the substance of the case."
However the resolution of issues which he accepts are subject to English law – scope/effect/interpretation – may include some consideration of the underlying facts, and yet not the "substance of the case": so too with identity of the parties.
i) In Dresser UK Ltd v Falcongate Freight Management Ltd  QB 502, the Court of Appeal was considering the applicability of Article 23 to a jurisdiction clause contained in a bill of lading, to which the claimant owners and the first defendants as consignees (bailees) were parties, as between the owners and the third and fourth defendants (sub-bailees), with whom they were not at English law in a contractual relationship. Bingham LJ, giving the lead judgment, considered matters entirely by reference to English law at 511 C-E as follows:-
"Here is the defendants' difficulty. Had the question arisen between Falcongate and the defendants, there would be no doubt that the clause had been agreed between them. Had Falcongate contracted as agents of the plaintiffs, the answer would have been the same. So it would if the plaintiffs sued as holders of the bill of lading to whom all Falcongate's rights and obligations under the contract of carriage had been transferred: [The Tilly Russ]  QB 931. But none of these situations existed here. So the question which has to be asked is whether the plaintiffs agreed with the defendants' explanation of the doctrine of bailment on terms as depending on the bailor's express or implied consent to the bailee's sub-bailment of goods on certain terms, the resulting relationship between the bailor and sub-bailee cannot in my view be aptly described as depending on agreement. The doctrine has evolved because the bailor cannot sue the sub-bailee in contract; but a contract is what, as I think, the first sentence of [Article 23] demands".
He concludes, as can be seen above, that if there had been a proven agency (at English law) between the bailor and the sub-bailee, then "there would be no doubt that the clause had been agreed between them".
ii) Just such a case arose in relation to agency in Standard Steamship Owners' P&I Association (Bermuda) Ltd v GIE Vison Bail  1 AER (Comm) 618 ("Steamship"). In that case the agent contracted with the claimant on behalf his principal, and the principal then denied the agent's authority, and thus denied that he was bound by the jurisdiction clause contained in the contract made between the claimant and the agent. The principal's argument was, as summarised by Cooke J in paragraph 51, that the claimant needed to show consensus on the part of the principal himself, and not on the part of any agent whom he had instructed. Cooke J rejected this argument. He stated as follows:-
"53. The effect of [the principal's] argument is to negate the concept of agency, at least in a large number of situations and thus to override principles of national law in relation to it. The whole basis of agency in English law and elsewhere is that, if the agent has actual or ostensible authority to conclude a contract on behalf of the principal, then the principal is bound. As a matter of principle and logic, if the agent specially agrees a jurisdiction clause, and it is within his actual or ostensible authority to do so, that ought to bind the principal. The agent stands in the shoes of the principal. If this was not recognised, a person dealing with a fully authorised agent would still have to enquire behind the agency, to ensure there was a specific agreement by the principal to the jurisdiction clause. I consider that this cannot be right.
54. … If the agent has appropriate authority to bind the principal, the principal has put the agent in the position where the agents consensus is that of the principal and no further enquiry beyond the agent's consensus is therefore required."
It is thus plain that, on the basis of Cooke J's conclusion, with which it is fair to say that Bingham LJ, in the light of what he said in Dresser, is likely to have agreed, is that the identity of the party to the contract, i.e. the decision that the principal was a party to the contract, fell to be decided at English law. Mr Millett submits that the decision is wrong and points out that neither Benincasa nor Coreck was cited. Estasis Salotti v Ruwa  ECR 1831, however, which is, as will be seen, to very similar effect as the content of paragraph 13 of the judgment in Coreck, upon which Mr Millett relies (set out in paragraph 37 above), was addressed by Cooke J in terms at paragraph 25 and 26 of his judgment. Mr Millett also relies upon Cooke J's statement in paragraph 52 that "agency or its equivalent is a concept known in many jurisdictions although the national rules in relation to it vary" and his reference in paragraph 53 to "the whole basis of agency in English law and elsewhere", so as to suggest that in some way the judge is applying an independent concept of agency rather than the English law of agency. However Cooke J makes the position to the contrary entirely clear in paragraph 54 of his judgment, in which he emphasises his intention:-
"not to derogate from the application of principles of agency in establishing consensus, where the agent could bind the principal as a matter of national law. In such circumstances it must be the agent's consensus that is relevant."
Thus the principal is identified in English law as being the party to the contract, and the EU law test as to consensus is then to be applied to the principal.
iii) Mr Millett relies upon the decision of Lewison J in KBS, and submitted that it supported him in his proposition that it was not for the national law to determine the identity of an original party to the contract. Lewison J decided, in relation to the issue before him, that national (German) law was not applicable to the issue of whether the parties before him were bound by the jurisdiction clause in a settlement agreement. If the issue before him was limited to whether KBS (UK), not being an original party to the settlement agreement, and not being suggested to have become party to the settlement agreement by succession, had in some other manner accepted or become party to the jurisdiction clause, then plainly Lewison J's decision was entirely in accordance with Coreck, as interpreted by Mr Rainey, set out in paragraph 41 above. Mr Millett however submits that Lewison J's decision went wider. I do not agree. Whereas the headnote to the report recited as part of the holding that KBS (UK) "was not a party to the settlement agreement and it was not suggested that it was a successor to the rights and obligations of its parent company", Mr Millett pointed to a number of passages in the judgment in which the Judge refers to the question as being whether KBS (UK) was "a party to or bound by the settlement agreement" (paragraph 16, the heading above paragraph 22. and paragraph 32). However:-
a) Insofar as the Judge does in fact look at German law (although in the event concluding it to be irrelevant), it is clear that at German law KBS (UK) was not a party to the settlement agreement (see paragraph 35 of the judgment).
b) Although there is consideration in the judgment of Coreck, significantly the judge only sets out, in paragraph 30 of his judgment, which is plainly substantially based upon Coreck, reference to the second and third of the tests set out in paragraph 41 above, and he cites only paragraphs 23 to 26 of the European Court Judgment in Coreck in paragraph 29 of his own judgment. Thus he does not even consider the relevant paragraph of Coreck, paragraph 20, which would be the material one if he were considering the question of whether KBS (UK) was an original party to the settlement agreement, and which law governs that question.
c) I have already considered, in paragraph 34 above, that he may have been influenced by his (unsupported) view that the parties to the contract are required to be identified in writing, itself inconsistent with paragraph 20 of Coreck.
I am entirely satisfied that KBS is no support for Mr Millett's case.
"For this reason it is necessary to reiterate that statements in the jurisprudence of the Court of Justice, which appear to require strict compliance with the formal rules, are meant and intended to underline the need for there to be consensus as to the jurisdiction of the nominated court: they are a means to an end, and are not the end in themselves… The only question, sight of which must not be lost, is that the formal requirements are there to ensure that there was consensus. If the consensus can be clearly and precisely established by other means, they serve no additional function, and there is no further need to consider them".
"7.36. … No contract is required; none may even be involved. All that is called for is the agreement of the party to be bound or restricted in his choice of jurisdictional rules where a claim arises in connection with a particular legal relationship, and which is expressed in a form sufficient to ensure that it is fair and appropriate to confine him to the jurisdiction of that court and of only that court. It is not necessary to interpret the expression 'if the parties … have agreed' as meaning that the two parties to the litigation have made a contract to this effect. It is therefore time to challenge the proposition that there must be formal consensus, as opposed to a public willingness, by the party said to have done it, to waive the usual rules of jurisdiction and agree instead to the jurisdiction of a named court: waiver, or a unilateral agreement.
7.37. The use of the plural form was inevitable because when the agreement is made it is not known who will be suing whom. But it does not mean that the agreement to accept the jurisdiction of a court is bilateral or contractual in nature, as distinct from indicating the unilateral acceptances of each of the parties, now to be given jurisdictional effect, sufficiently demonstrated and formalised to be fairly invoked. The language of consent and waiver, rather than agreement, may have been more useful than we realised. It is what the Court said in Estasis Salotti: the need was for a guarantee 'that the other party has really consented to the clause waiving the normal rules of jurisdiction'."
"In this case the question is whether it can be said that Andromeda has agreed by acceptance to be bound by the jurisdiction clause. It might, I suppose, be possible for an acceptance to be demonstrated by the issue of proceedings in the chosen jurisdiction; but it does not seem to me that Andromeda can be said to have accepted, let alone accepted clearly and precisely, the jurisdiction clause when the purpose of the proceedings is to deny that they are bound by the contract which contained the clause."
i) there was consensus, since A agreed with B and by virtue of the operation of the alter ego principle in identifying B and C as both being party to the contract, also with C. This is a similar exercise to that adopted by Cooke J by reference to agency principles which identify (at English law) C as a party to the contract, and thus lead to consensus between A and C: and/or
ii) there was consent by B and hence by its alter ego C, which was accepted by A, by suing on the jurisdiction clause, thus creating or confirming the consensus.
Entry of Appearance
"… a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22."
He submits that when the Corporate Defendants entered an appearance in the Corporate Defendants' action, so too did the Defendant as their alter ego. It seems to me that it could be argued that in such circumstances a defendant may have submitted to the jurisdiction in that way (cf The Ikarian Reefer (No 2)  1 WLR 603) but that is not the test for Article 24. The question is whether the Defendant entered an appearance, and he did not. In any event, even if he had, he has not entered an appearance in this action and, in my judgment, jurisdiction cannot arise because a party has entered an appearance in some earlier action at some point in time – which might be many years ago. Mr Rainey sought to submit that there would be some limitation, at least in terms of there needing to be an action between the same or similar parties, or in relation to the same or similar subject matter, but there is, in my judgment, no such limitation. Article 24 is, in my judgment, dedicated to a situation in which a defendant enters an appearance in the instant action, and thereby clothes that court with jurisdiction. This ground is not arguable.
The applicable test for jurisdiction
"Whether there has been a sufficient consensus so as to satisfy Article 23 as predominantly a question of fact for the court seised and it is to be answered without recourse to rules of national law."
This was expanded by Hamblen J in Polskie, expressly by reference to Lawrence Collins J wearing his academic hat in the 14th Edition of Dicey, Morris and Collins at 12-108, namely:-
"As to the need for agreement – the claimant must show that both the parties "clearly and precisely" consented to the alleged jurisdictional agreement. In a case, such as this, where a party alleges that it never accepted the clause, the task of the court is to determine if there was sufficient consensus between the parties as a question of fact, without recourse to any rules of national law."