ON APPEAL FROM THE HIGH COURT, CHANCERY DIVISION
His Honour Judge Purle QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWISON
SIR TIMOTHY LLOYD
| NANCY JONG
|- and -
| HSBC PRIVATE BANK (MONACO) SA
MR DAVID QUEST QC & MISS LAURA JOHN (instructed by DLA Piper UK LLP) for the Respondent
Hearing date : 13 October 2015
Crown Copyright ©
Lord Justice Lewison:
"(11) The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor."
"(14) The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, must be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation."
"Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State."
"If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 22 and 23, be determined by the law of that Member State."
"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 which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise."
"If contracting parties agree to give a particular court exclusive jurisdiction to rule on claims between those parties, and a claim falling within the scope of the agreement is made in proceedings in a forum other than that which the parties have agreed, the English court will ordinarily exercise its discretion (whether by granting a stay of proceedings in England, or by restraining the prosecution of proceedings in the non-contractual forum abroad, or by such other procedural order as is appropriate in the circumstances) to secure compliance with the contractual bargain, unless the party suing in the non-contractual forum (the burden being on him) can show strong reasons for suing in that forum. I use the word "ordinarily" to recognise that where an exercise of discretion is called for there can be no absolute or inflexible rule governing that exercise, and also that a party may lose his claim to equitable relief by dilatoriness or other unconscionable conduct. But the general rule is clear: where parties have bound themselves by an exclusive jurisdiction clause effect should ordinarily be given to that obligation in the absence of strong reasons for departing from it. Whether a party can show strong reasons, sufficient to displace the other party's prima facie entitlement to enforce the contractual bargain, will depend on all the facts and circumstances of the particular case."
"The factors which the court is entitled to take into account in considering whether one forum is more appropriate are legion. The authorities do not, perhaps cannot, give any clear guidance as to how these factors are to be weighed in any particular case. Any dispute over the appropriate forum is complicated by the fact that each party is seeking an advantage and may be influenced by considerations which are not apparent to the judge or considerations which are not relevant for his purpose.
In the result, it seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge. Commercial court judges are very experienced in these matters. An appeal should be rare and the appellate court should be slow to interfere."
i) Ms Jong chose to open a bank account in Monaco.
ii) She conducted her foreign exchange dealings through that account.
iii) The claim against HSBC (Monaco) is governed by Monegasque law.
iv) The existence of the exclusive jurisdiction clause.
i) The claims against the two English HSBC companies were governed by English law and there was a considerable factual overlap between the claim against them and the claim against HSBC (Monaco).
ii) The claim against the two English HSBC companies required Ms Jong to prove against the English companies the truth of the allegations that she made about the misdeeds of HSBC (Monaco). If the claim against HSBC (Monaco) failed, the claim against the English companies must also fail.
iii) Ms Jong had the right to sue those two companies in England and could not be prevented from doing so on the ground that another forum was more appropriate.
iv) If there were trials both in England and in Monaco there would be a risk of inconsistent judgments.
i) The contract containing the exclusive jurisdiction clause was made in England in the sense that that was where Ms Jong signed the relevant documents.
ii) The contracts for the individual trades were made in England because that was where Ms Jong was physically situated when she gave her instructions to HSBC (Monaco) by telephone.
iii) Ms Jong was herself resident in England and Wales.
"Reported cases are merely illustrations of circumstances in which particular judges have exercised their discretion, in some cases by granting an injunction, and in others by awarding damages instead. Since they are all cases on the exercise of a discretion, none of them is a binding authority on how the discretion should be exercised. The most that any of them can demonstrate is that in similar circumstances it would not be wrong to exercise the discretion in the same way. But it does not follow that it would be wrong to exercise it differently."
"A decision that permission should be granted to serve the protagonist out of the jurisdiction because the minor player is domiciled within the jurisdiction would indeed allow the tail to wag the dog. But if the anchor defendant is the protagonist a decision to allow a minor player to be served outside the jurisdiction may be entirely appropriate. That would be, to continue the metaphor, to allow the dog to wag the tail. Just as it may make little sense to have the venue determined by where the claim against the most insignificant player will be heard, so it may make little sense to have the venue where the most significant will be sued passed over in favour of another jurisdiction to whose jurisdiction a lesser player is subject. I do not mean thereby to suggest that whether or not jurisdiction should be exercised against a foreign defendant is necessarily determined by whether the anchor defendant, or the defendant sought to be joined, fits into some particular descriptive category ("major/minor"; "principal/secondary"); only that a decision as to appropriate forum must necessarily take account of the relative importance in the case of different defendants and particularly those against whom proceedings in England are practically bound to continue."
" it seems to me that more scrutiny needs to be given to what is meant by the distinction between major and minor players, or protagonists and lesser parties, in this context, and why that distinction matters to the extent that it does. I find it difficult to see why the fact that one or another defendant is alleged to be on the facts, to put it colloquially, the person who called the shots should itself be a particularly important consideration in deciding which is the most appropriate forum for the claim."
"The authorities show that the English court may well decline to grant an injunction or a stay, as the case may be, where the interests of parties other than the parties bound by the exclusive jurisdiction clause are involved or grounds of claim not the subject of the clause are part of the relevant dispute so that there is a risk of parallel proceedings and inconsistent decisions."
"I should give greater weight to the exclusive jurisdiction clause and the fact that all the trades were carried out through HSBC Monaco in Monaco than to the other connecting factors."
Sir Timothy Lloyd:
Lord Justice Moore-Bick: