England and Wales High Court (Commercial Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/04/2017

Mr Justice Andrew Baker :

1. By Application Notice dated 6 March 2017, the claimant seeks declaratory relief by way of summary judgment upon certain parts of its claim in these proceedings against the defendant, Dr Gloeggler. The claimant is an English company carrying on a financial services business, in particular operating as a broker for derivatives trading. The proceedings concern Dr Gloeggler's trading activity with or through the claimant, and proceedings brought by him against the claimant in Germany.
2. In related proceedings involving other defendants: on 18 November 2016, Teare J granted summary judgment on equivalent issues as regards defendants Mikic et al., [2016] EWHC 3157 (Comm); on 6 April 2017, I granted summary judgment on the equivalent issues as regards defendants Grundman, Marti and Sigmund in CL-2016-000266. I have not yet seen a transcript of my judgment, but suffice it to say that whilst it was submitted that I ought to follow Teare J's judgment in Mikic et al. unless I thought it clearly wrong, I formed in any event the clear, independent view that Teare J's conclusions were correct and gave full reasons.
3. Meanwhile, the equivalent application for summary judgment in the present case was pending, with an oral hearing scheduled for 12 May 2017. However, Dr Goeggler's solicitors have confirmed in writing that he will neither file evidence in the application, nor actively contest its merits, but that he is not content to consent to the judgment sought, or any judgment. As this was brought to my attention at the hearing in Grundman et al., I encouraged the claimant in the circumstances to explore with Dr Goeggler whether there would be any objection to my dealing with the application in this case on the papers in the last few days of this term, potentially saving the need for and associated costs of any attendance on 12 May 2017.
4. In correspondence thus encouraged, in substance Dr Goeggler's solicitors have:

i) not objected to my dealing with the application on the papers, dispensing with the hearing on 12 May 2017 – indeed, doing so is directly consistent with their one point of substance which is that cost should be saved;

ii) repeated a submission made when initially indicating that the application would not be actively contested on the merits, namely that there is no good reason for taking the relevant issues (being issues of construction as to the scope of the governing law and jurisdiction provisions in the applicable Client Agreement and Terms of Business) separately by way of summary judgment rather than either at trial, or by way of summary determination at a CMC;

iii) contended that even if there were a summary determination of the issues now, costs should be in the case.

5. On the merits, quite apart from Dr Goeggler's lack of active resistance to the claimant's case, it is plain that the claimant's position is correct on the issues on which summary judgment is sought. For that purpose, I refer generally to Teare J's and my earlier judgments and will not repeat the primary analysis or discussion of the case law. In a most helpful and fair short skeleton argument for my consideration of the application on the papers, Mr Ratan for the claimant has drawn to my attention the points of factual difference between the present case and those dealt with in the earlier judgments. None affects the outcome. Taking them in turn:

i) Dr Gloeggler has submitted to the jurisdiction in this claim by filing and serving a Defence. That Defence does not raise any substantial contest to the claimant's case on the points of construction on which summary judgment is sought.

ii) Dr Gloeggler's German claim is in the Regional Court of Duisburg, whereas the other defendants' claims have been in Hamburg, or in one case Düsseldorf. Nothing turns on that.

iii) For (asserted) jurisdiction in Germany, Dr Gloeggler did not use the technique used by the other defendants of suing a 'local' entity or individual as jurisdictional 'anchor' defendant, bringing the claimant in as co-defendant. That again makes no difference. What matters is the nature of the claims he makes. They are for alleged wrongdoing under German law (tort claims) in respect of the claimant's alleged conduct in relation to Dr Gloeggler's derivatives trading pursuant to the Client Agreement.

iv) The applicable version of the Terms of Business in Dr Gloeggler's case that govern his Client Agreement is an earlier version than those Teare J and I have already considered. However, the material provisions plainly still have the effect contended for by the claimant, namely that claims by Dr Gloeggler, even if framed solely as tort claims, that arise out of the business conducted with him by the claimant, are (so far as the scope of those provisions is concerned) subject to English law and the exclusive jurisdiction of the English court. The material provisions are these:

… This document is important. It sets out the legal basis on which [the claimant] will conduct business with you …

2. THE AGREEMENT

…

2.3 The Agreement is legally binding on you and applies to your account and all instructions and Transactions, any investment advice we may give you and any other related dealings between us and you.

…

33. LAW AND DISPUTES

33.1 This Agreement and all rights and obligations arising in respect of your Account shall be governed by, performed and construed in accordance with the laws of England and (except for matters concerning specific Transactions which require to be submitted to arbitration in accordance with applicable Market Rules [inapplicable on the facts]) you irrevocably submit to the exclusive jurisdiction of the English Courts in relation to such dispute, without prejudice to our right to seek enforcement of any arbitration award or judgment in any other jurisdiction.

6. There is a strong case management interest to be served by determining now, since the claimant is correct on them, the points of construction on which it seeks summary judgment. Doing so allows this claim to be brought into line with, and jointly managed with, the other cases before this court, as regards other issues and other elements of the relief the claimant seeks, on which it has always accepted that there may need to be a full trial.
7. Dr Gloeggler not having consented to judgment on the immediate issues, the claimant was necessarily put to the time and expense of preparing, issuing and pursuing this summary judgment application to serve that strong case management interest. In doing so, it has generally acted very efficiently and cost-effectively, not least (but not only) by dealing with the matter in the way it has done following the indication of Dr Gloeggler's stance.
8. In those circumstances, it seems to me the suggestion that costs should in the case is misguided. I would have been content to grant the claimant its costs of this summary judgment application (to be assessed on the standard basis if not agreed, with liberty to apply to me on paper for a summary assessment); but Mr Ratan offers, as a concession to Dr Gloeggler, that costs be reserved for now, and I do not think I should cut across that.
9. I shall therefore issue today an order granting by way of summary judgment a declaration that Dr Gloeggler's German clami falls within the scope of Clause 33.1 of the applicable Client Agreement and Terms of Business. The order will also make case management directions in line with those I made last week in Grundman et al.