Jersey Unreported Judgments

Construction

[2022]JRC291

Royal Court

(Samedi)

21 December 2022

Before     :

Sir Timothy Le Cocq, Esq., Bailiff

 

Advocate N. MacDonald for the Plaintiff.

Advocate M. P. Boothman for the Defendant.

judgment

the bailiff:

1.        On 29 April 2022, Sharon Campbell ("the Plaintiff") served an Order of Justice on Cape Construction Limited ("the Defendant") seeking damages arising out of the construction by the Defendant of a new house for the Plaintiff.  The contract between them under which the construction was carried out was a JCT Minor Works Building Contract 2005, Revision 2 2009, dated 24 April 2012 ("the JCT Contract").  The draft was amended before the parties entered into it and I will refer to some of the amendments hereunder.

2.        The essence of the claim in the Plaintiff's Order of Justice is that the Defendant, in its construction of the new house, failed in certain material respects, as a result of which the new house was defective, was not insulated adequately, and a wet room installed in the house was not finished to an adequate standard.  There were, so it is alleged, in addition, a number of cosmetic defects all of which required rectification.  The Plaintiff claims damages.

3.        It is fair to say that depending upon the outcome of this hearing, issues of limitation may arise.  They do not directly, however, relate to the question before me.

4.        The matter before me today is the hearing of the Defendant's summons dated 9 June 2022 which seeks:

(i)        A declaration that the Royal Court of Jersey does not have jurisdiction to determine the proceedings brought by the Plaintiff against the Defendant;

(ii)       That the proceedings should be set aside or struck out;

(iii)      That the Defendant should be granted such orders or other relief as may be appropriate including costs of and incidental to the application;

(iv)      In the alternative, and if the Court does not grant the orders set out above,:

(a)       that the proceedings should be stayed for the purposes of arbitration;

(b)       ancillary or other orders as appropriate.

5.        The Defendant's claim is that the Court does not have jurisdiction in this matter because the JCT Contract gives jurisdiction to the English Courts.  Specifically, Article 8 of the JCT Contract is in the following terms:

"Subject to Article 6 and (where it applies) to Article 7, the English Court shall have jurisdiction over any dispute or difference between the parties which arises out of or in connection with this contract."

6.        The footnote to Article 8 states:

"If it is intended, subject to the right of adjudication and exception stated in Article 7, the disputes or differences should be determined by arbitration and not by legal proceedings, the contract particulars must state that the arbitration provisions of Article 7 and schedule 1 apply and the words 'do not apply' must be deleted.  If the parties wish any dispute or difference to be determined by the Courts of another jurisdiction the appropriate amendment should be made to Article 8 (see also clause 1.7)."

7.        The Defendant asserts, in effect, that Clause 8 amounts to an exclusive jurisdiction clause and that the Order of Justice should therefore be set aside or struck out because the claim ought to have been issued in the Courts of England.

8.        The draft of the JCT Contract was prepared by the Plaintiff's professional advisers and contained variations from the standard form.  It was altered in certain material respects and, for example, at Clause 1.7 under the heading 'Applicable law', the JCT Contract states:

"This contract shall be governed and construed in accordance with the law of Jersey."

9.        The initial draft had clearly referred to the law of England, but the word 'England' had been scored through and the word 'Jersey' had been entered in manuscript.

10.      The effect of Article 8 and Clause 1.7 combined if the Defendant is correct in its assertion would be that the contract would be governed by Jersey law but justifiable only in England and not in Jersey.

11.      Other alterations were made during the course of the preparation of the contract by manuscript changes to the printed version.  For example, Clause 1.1 was altered to remove reference to Value Added Tax and to add, in manuscript, 'Goods and Services Tax'.

12.      Clause 7.1 is in the following terms:

"Subject to Article 6, if a dispute or difference arises under the contract which cannot be resolved by direct negotiations each party shall give serious consideration to any request by the other to refer the matter to mediation."

13.      Article 6, under the heading 'Adjudication', says:

"If any dispute or difference under the contract either party may refer to adjudication in accordance with Clause 7.2."

14.      Clause 7.2 deals with the matter of adjudication but is scored through. 

15.      Also, in the typed version, a new Clause 7.4 was inserted into the draft in the following terms:

"Notwithstanding anything herein contained to the contrary the interpretation of this contract and all matters arising thereunder shall be governed by the laws and customs of the island of Jersey, and the contractor and all sub-contractors shall file with the employer an address for the service within the jurisdiction."

16.      Under the section 'Meaning of Insolvency', a new paragraph 6.1 is entered referring to the definition of insolvency as defined in the 'Interpretation (Jersey) Law 1954'.

17.      Clause 6.6 is altered to make reference to offences under the 'Corruption (Jersey) Law 2006 or other Jersey law'. 

18.      Under Article 7 heading 'Arbitration', the contract states:

"Where Article 7 applies, then subject to Article 6 and the exception set out below, any dispute or difference between the parties of any kind whatsoever arising out of or connection with this contract shall be referred to arbitration in accordance with Schedule 1 and the JCT 2005 edition of the Construction Industry Model Arbitration Rules."

19.      There can be little doubt but that Article 8 prima facie confers on the Courts of England the jurisdiction to determine this case.  The question for me is, however, whether Article 8 confers an exclusive jurisdiction to the English Courts or is merely permissive.

20.      I am also asked to consider, if I do determine that Article 8 of the contract amounts to an exclusive jurisdiction clause whether, nonetheless, this Court has a discretion to permit the claim to continue in Jersey and, if so, what factors should be taken into account in the exercise of such discretion.

The Law

21.      Both parties call in aid the well-known Jersey maxim 'la convention fait la loi des parties'.  The Courts of Jersey have made a number of comments about that maxim but, in essence, it simply means that the Court should have a high regard to the sanctity of contracts and must enforce them unless there is a good reason in law and should have a high level of regard on the terms of the contract intended by the parties to it once those terms have been identified. 

22.      Whereas I do not in any sense undermine that maxim, it seems to me that it does not assist in determining whether Article 8 is an exclusive jurisdiction clause or simply a permissive one.

23.      A number of other authorities have been put before me.  I do not need to refer to them all.

24.      In Home Farm Developments v Le Sueur [2015] JCA 242, the Court of Appeal held:

"32.      It is well established that, when interpreting a document (including a contract), the Court must ascertain the meaning of the document from the words used, not by reference to the subjective intention of the parties.  Thus, in Hyams v Russell [1970-1971] JJ 1891, Ereaut DB said this at 1910:-

"We agree that it is a fundamental principle of the law of contract that where there is a written agreement which has a plain natural meaning it is not permissible to alter its effect according to the intention of one of the two contracting parties, or to adduce evidence in order to show such an intention.  The only question is, what have the parties said by their contract?"

25.      The Court of Appeal in Home Farm further stated:

"44.      Mr Holmes argues that there was no meeting of minds since he was in erreur because of his belief that the Settlement Agreement included a requirement for Mr Le Sueur to procure the Strata creditors to agree to accept part payment in full and final settlement of their claims.

45.      We accept for the purposes of this appeal that a unilateral erreur by one party to a contract may prevent the required meeting of minds or amount to a defect of consent as described in Marett.  However, we do not agree that a misunderstanding as to the meaning of a contract can amount to such an erreur.  The example given in Pothier Traité des Obligations, Part 1, Chapter 1, §18, p. 22, of the sale of a pair of candlesticks is of a very different character, because that was not dealing with a question of interpretation.

46.      The consequences of holding that the misunderstanding of a contract by one party is sufficient erreur to invalidate the contract would be startling.  Let us take a simple case where a plaintiff and defendant disagree over the meaning of a contract.  The plaintiff argues for interpretation X and the defendant for interpretation Y.  Applying the approach set out in §32 above, the court rules that interpretation X is correct.  If an erreur as to interpretation by the defendant were held to be sufficient to avoid the contract, he would have lost the battle but won the war, because his interpretation of the contract would have been rejected but notwithstanding that defeat he would be entitled to have the contract declared void on the basis of his own misunderstanding of its effect.  Conversely, the plaintiff would be in a lose-lose position, despite having correctly understood the contract and being unaware of the defendant's misunderstanding.  That cannot be the law."

26.      In the case of Trico v Buckingham [2020] JRC 009, the Court at paragraph 68 of the judgment said this:

"It seems to us from these cases, which we accept, to be clear that the signature of a party to a contract is evidence of the agreement by that party to be bound by its terms whether or not the party had read the agreement provided there were no suggestion of fraud and of course the signing party is capable of reading it and has the requisite capacity."

27.      The Defendant also raises in written argument the suggestion of an implied term but that argument was not deployed by the Defendant and I do not propose to consider it further.  Without having given the matter full consideration, my initial view would be that following the principles in Grove and Briscoe v Baker [2005] JLR 348, a clause conferring jurisdiction on the Courts of Jersey would not need to be implied into the JCT Contract to give it efficacy.

28.      There does not appear to be any direct Jersey authority specifying what constitutes an exclusive jurisdiction clause in a contract.  The Plaintiff refers to English authority which confirms that it is not a requirement for parties to use the expression 'exclusive jurisdiction' to confer exclusive jurisdiction. 

29.      Specifically, in the Bank of New York Mellon v GV Films [2009] EWHC 2238, the English High Court held that it should consider whether there was any contemporary intention by the parties for the clause it was then considering to be an exclusive jurisdiction clause.

30.      In Starlight Shipping Company v Allianz Marine and Aviation Versicherungs AG and Others (The Alexandros) [2011] EWHC 3381, the High Court held that the clause under consideration did constitute an exclusive jurisdiction clause by reference of the context of the settlement agreement it was considering.  It quoted specifically from Dicey and Morris in the following terms:

"Where the agreement is governed by English law, and in the absence of explanation to the contrary, the Court may conclude that if a nominated Court would have had jurisdiction by right in the absence of the agreement, the agreement would be idle unless it conferred exclusive jurisdiction on the nominated Court."

31.      In that case, the High Court was satisfied by reference to the context and to the fact that the provision would otherwise be idle, that parties did mean and intend exclusive jurisdiction.

32.      This is, of course, in direct contrast to the JCT Contract under consideration where the English Court would not naturally have jurisdiction and the provisions are governed not by English law, but by Jersey law.

33.      In Global Maritime Investment Cyprus Limited v OW Supply and Trading A/S (Under Konkurs) [2015] EWHC 2690, Teare J considered a number of factors demonstrating the parties' intention including the choice of proper law in determining whether the clause dealing in fact constitutes an exclusive jurisdiction clause.

34.      At paragraph 49 of the judgment, the Court said:

"As with all questions of construction the Court's task is to identify the meaning which the jurisdiction clause would reasonably be understood to bear in its context.  Since the Court has tackled questions of this nature before the Court must have regard to the manner in which the Court has approached this question in previous cases but those cases, which involve clauses worded differently from clause 13.2...cannot determine the construction of clause 13.2...  The factors identified in previous cases are only 'signposts which may sometimes assist in determining the intention of the parties'."

35.      At paragraph 50, the learned judge said this:

"...I further infer from the fact that the jurisdiction clause follows the parties' agreement that the general terms will be governed by English law that the parties saw that there was good sense in linking the proper law of a transaction with the law of the country whose Courts were referred to in the jurisdiction clause.  In that context the obligation assumed by the parties to 'submit to the jurisdiction of the English Courts' would reasonably be understood as an obligation to submit all claims relating to the general terms to the jurisdiction of the English Courts."

36.      Again, in contrast with Global Maritime, the jurisdiction clause in the JCT Contract in this case does not follow the proper law clause and it does not necessarily follow for that reason, therefore, that the parties intended to confer exclusive jurisdiction on the Court of a country that has little, if any, connection with the subject matter of the contract and its proper law.

37.      Turning to the question as to whether this Court has discretion to permit the claim to continue even were the clause to be an exclusive jurisdiction clause, I have been referred to the judgment of Lord Neuberger in the Privy Council in the matter of Crociani v Crociani [2014] UKPC 40.  That case concerned not a contract but a trust dispute, but the trust instrument included a direction that certain issues should be 'subject to the exclusive jurisdiction.. of the said country'.  Lord Neuberger cited from Lord Bingham's judgment in Donahue v Armco Limited [2001] UKHL 64 in identifying the appropriate principles:

"33. In the context of contractual exclusive jurisdiction clauses, the approach of the court to a claim brought in another jurisdiction was authoritatively described by Lord Bingham of Cornhill in Donohue v Armco Ltd [2001] UKHL 64, [2002] 1 All ER 749, para 24 in these terms: "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 ... to secure compliance with the contractual bargain, unless the party suing in the noncontractual 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."

34.  As Lord Hobhouse of Woodborough explained in para 45 of that case, the defendant to such a claim "has a contractual right to have the contract enforced" and his "right specifically to enforce his contract can only be displaced by strong reasons being shown by the opposite party why an injunction should not be granted". Thus, where a claim has been brought in a court in breach of a contractual exclusive jurisdiction clause, the onus is on the claimant to justify that claim continuing, and to discharge the onus, the claimant must normally establish "strong reasons" for doing so. Counsel referred to other cases where judges have expressed themselves somewhat differently, but the Board considers that the position is accurately stated by Lord Bingham and Lord Hobhouse, and that any statement which is said to involve a different approach should not be followed.

35. The question of principle which arises in this case is whether the same test applies to an exclusive jurisdiction clause in a deed of trust. Contrary to the appellants' argument, the Board is of the opinion that it should be less difficult for a beneficiary to resist the enforcement of an exclusive jurisdiction clause in a trust deed than for a contracting party to resist the enforcement of such a clause in a contract. The Board is of the opinion that in the case of a trust deed, the weight to be given to an exclusive jurisdiction clause is less than the weight to be given to such a clause in a contract. Given that a balancing exercise is involved, this could also be expressed by saying that the strength of the case that needs to be made out to avoid the enforcement of such a clause is less great where the clause is in a trust deed.

36. In the case of a clause in a trust, the court is not faced with the argument that it should hold a contracting party to her contractual bargain. It is, of course, true that a beneficiary, who wishes to take advantage of a trust can be expected to accept that she is bound by the terms of the trust, but it is not a commitment of the same order as a contracting party being bound by the terms of a commercial contract. Where, as here (and as presumably would usually be the case), it is a beneficiary who wishes to avoid the clause and the trustees who wish to enforce it, one would normally expect the trustees to come up with a good reason for adhering to the clause, albeit that their failure to do so would not prevent them from invoking the presumption that the clause should be enforced. In the case of a trust, unlike a contract, the court has an inherent jurisdiction to supervise the administration of the trust - see eg Schmidt v Rosewood Trust Ltd [2003] UKPC 26, [2003] 2 AC 709 para 51, where Lord Walker of Gestingthorpe referred to "the court's inherent jurisdiction to supervise, and if necessary to intervene in, the administration of trusts". This is not to suggest that a court has some freewheeling unfettered discretion to do whatever seems fair when it comes to trusts. However, what is clear is that the court does have a power to supervise the administration of trusts, primarily to protect the interests of beneficiaries, which represents a clear and, for present purposes, significant distinction between trusts and contracts.

37. Accordingly, the Board considers that, while it is right to confirm that a trustee is prima facie entitled to insist on and enforce an exclusive jurisdiction clause in a trust deed, the weight to be given to the existence of the clause is less (or the strength of the arguments needed to outweigh the effect of the clause is less) than where one contracting party is seeking to enforce a contractual exclusive jurisdiction clause against another contracting party. It is right to mention that counsel referred to some cases (including some of those identified in para 31 above) in which it seems to have been assumed that the weight was the same, but it does not appear to the Board that the issue was fully discussed or considered in any of those cases, which are in any event not binding on the Board."

38.      It is accepted that an exclusive jurisdiction clause in a trust instrument would not carry the same weight as one to be found in a contract (see EMM Capricorn Trustees Limited v Compass Trustees Limited [2001] JLR 205).  It is urged on me by the Plaintiff, however, that it is nonetheless instructive to consider the principles applicable in trust cases.  These were referred to as follows:

"(a)      In what country the factual evidence was situated, or more readily available, and the effect on the relevant convenience and expense of the trial as between the Jersey and foreign courts;

(b)       Whether the law of the foreign court applied and, if so, whether it differed from Jersey law in any material respects;

(c)       With what country either party was connected, and how closely;

(d)       Whether the defendants genuinely desired trial in the foreign country, or were only seeking procedural advantages; and

(e)       Whether the plaintiff would be prejudiced by having to sue in the foreign court because they would:

           (i)         be deprived of security for their claim;

           (ii)         be unable to enforce any judgment obtained;

           (iii)        be faced with a time-bar not applicable in Jersey; or

(iv)      for political, racial, religious or other reasons be unlikely to get a fair trial."

39.      In Koomen v Bender [2002] JLR Note 45, also in connection with a trusts matter, the Court of Appeal held that the Court has to construe an exclusive jurisdiction provision in a trust deed so as to 'give effect to the presumed intention of the parties, and not according to the strict rules of construction'.

The factual background

40.      Two affidavits were placed before me.  The first in time was that of Mr Timothy Johannes Franciscus Wijsmuller of 31 May 2022.  He is the sole director of the Defendant.  The second affidavit is that of the Plaintiff and is dated the 10 August 2022. 

Affidavit of Mr Wijsmuller

41.      He confirmed that he became involved in the contract between the Plaintiff and the Defendant because he had known the Plaintiff for a long time.  He agreed to help out on a friendship basis in order to point her and her husband in the direction of people who could carry out works on an old house which required extensive works. 

42.      It was some time after that he learnt that that old house had in fact burnt down and after this the Plaintiff had asked him for recommendations as to architects, surveyors and quantity surveyors.  She eventually obtained planning permission and informed Mr Wijsmuller that there would be a tender process.  It was a sealed bids tender process and the Defendant was ultimately successful in winning that tender.

43.      The Plaintiff had retained Mr Andrew Jelly of W Vaughan Jelly Son and Associates Limited as her architect.  Her surveyor was Southern Projects Limited which was a UK company.

44.      When the Defendant had been successful in the tender process, he entered into the JCT Contract.  The reason, so Mr Wijsmuller states, that the JCT Contract was dated 24 April 2012 is that it was never actually signed until the works were completed.  The contract had been subject to a significant number of amendments, detailed both in hand written annotations to the standard form JCT template and on a separate sheet heading 'Contract Amendments'.  The JCT Contract and all other documents had been produced by Southern Projects Limited as part of the tender process for the Plaintiff.

45.      Once the contract was finalised, it was signed on behalf of the Defendant.  Mr Jelly was named as the architect / contract administrator and the Plaintiff is the employer, with the Defendant being named as contractor.

46.      Because of the passage of time, Mr Wijsmuller states that he cannot recall whether he sought professional advice in connection with the wording of the JCT Contract.  He may have asked his quantity surveyor to review it.  We have no evidence on that point.

47.      Mr Wijsmuller makes express reference in his affidavit to Article 8 of the JCT Contract.  He states:

"I am now aware that the governing law of the JCT Contract was changed to Jersey law but I understand that often the English Courts are left as having jurisdiction to determine any building disputes because there are specialist construction courts in London and also specialist construction barristers who solely focus on advising in construction claims." [My emphasis]

48.      He also expressed his understanding that the costs of litigation in England are often considerably less than in Jersey and that because the Plaintiff had surveyors based in England and insurers had been involved in the matter of the house fire, he saw no reason to question the fact that the English Courts had jurisdiction to determine any dispute arising under the JCT Contract.

49.      Mr Wijsmuller also asserts that he had no reason to believe that the Plaintiff did not understand the JCT Contract.  She had professional advisers engaged and had been through the formal tender process.  In addition, as there had been extensive amendments made to the JCT Contract, Mr Wijsmuller expresses the view that it would be 'unconscionable to suggest in my mind that either she or those advising her were not aware that the English Courts had jurisdiction to determine any dispute arising under the JCT Contract'.

50.      In his affidavit, Mr Wijsmuller raises the possibility of prescription or limitation of claim and says that he would:

"Urge the Court to carefully construe that the words undertaken by [the Defendant] were signed off by [the Plaintiff's] architect when he signed the certificate of practical completion on the 29 May 2012.  As I recall this would have been with the full knowledge of Southern Projects Limited who were still involved on behalf of [the Plaintiff]."

51.      Mr Wijsmuller makes the observation that this is more than ten years ago and, as well as making an observation about it being too late, observes that the Plaintiff has not acted with any degree of diligence in pursuing any claims.

52.      As an alternative, Mr Wijsmuller urges that in the event that the Court does not agree that the action has been brought to the wrong jurisdiction and must accordingly be struck out, then it should be stayed and referred to arbitration pursuant to Article 7 of the JCT Contract. 

53.      I observe that Mr Wijsmuller gives no evidence in his affidavit concerning the genesis of the changes and refers to his understanding of why the contract may have taken the form it did but does not indicate that that was his understanding at the time, nor indeed that he turned his attention to it.  He is uncertain whether he had the contract reviewed, although might have done, and it does not appear to me that Mr Wijsmuller can say that he, on the part of the Defendant, noticed the format of the jurisdiction and proper law clauses of the contract at the time nor was exercised by them.

The Plaintiff's affidavit

54.      The Plaintiff's affidavit is brief.  She confirms that the JCT Contract was entered into in relation to a building project to rebuild her home after a major fire caused catastrophic damage.

55.      She confirms that Mr Southern of Southern Projects Limited prepared the contract and that she did not recall having much involvement in considering the terms of it, although she does recall that she was asked to initial on each page that had a yellow sticker as they were pages deemed of importance.  The yellow stickers were to be found on pages 6, 7, 8, 10, 11, 12, 13, 16, 18 and 20 of the draft contract.

56.      She did not consider the terms of the contract in detail prior to its signature and she relied upon the advice and guidance of others, in particular Mr Southern regarding the terms of the contract and Mr Andrew Jelly as the architect.  She was not advised that the terms of the contract would require her to issue legal proceedings in England should the need arise.

57.      She states that on review of the contract, she notes the amendments and annotations which are aimed at ensuring Jersey law and customs apply to it.  She makes the observation that this is appropriate given that this was a local building project in Jersey and that the architect and quantity surveyor were Jersey residents.

58.      She disputes Mr Wijsmuller's affidavit in his assertion that the surveyors were based in England, affirming once again that Mr Southern was a quantity surveyor for the project and was based in Jersey.  She thinks that Mr Wijsmuller may have been referring in fact to a loss adjuster, a Mr Wilson, who witnessed the signing of the contract.

59.      She makes reference to the Defendant's assertion that all disputes should be dealt with the English Courts but applying Jersey law.  She says that while she cannot comment on this, she is able to say that it would not have been her intention in relation to this building project to be required to instruct English lawyers to issue proceedings in another jurisdiction should the need arise.  That did not make any sense to her, to require both parties to attend a foreign Court for resolution of any Jersey issues.

60.      She makes the observation that should proceedings have to be issued in England, further costs would be incurred because the English Courts would be required to apply Jersey law and therefore expert evidence of that law would be needed.

61.      It appears tolerably clear, therefore, that neither party at the material time paid much regard to the detail of the contract, Mrs Campbell indicating that she would not have wished the contract to require that she commence proceedings in England at additional expense. 

62.      Annexed to her affidavit is the JCT Contract and it appears to me that on certain pages two sets of initials in manuscript are to be found.  From my perusal of the document, no initial appear on page number 4 which includes the Articles relating to adjudication and, importantly for these purposes, Article 8 relating to legal proceedings and the involvement of the jurisdiction of the English Courts.  Nor indeed at page 19, which includes at paragraph 1.7 reference to the governing law clause being that of Jersey.  There is no suggestion that these clauses were drawn to the parties' attention or considered by them.

63.      A number of pages and therefore terms were directly flagged by the advisers to the Plaintiff, but it does not appear that the material clauses before me today were specifically brought to the attention of either party.  That supports my view that neither the Plaintiff nor Mr Wijsmuller focussed on those aspects of the JCT Contract at all.

Conclusion

64.      It does not seem to me likely that either party gave substantial, if any, attention to the force of Article 8.  Mr Wijsmuller, in his affidavit, does not confirm that he gave it thought at the material time and it would appear that the Plaintiff gave it no consideration at all.

65.      What clearly was important to the parties was the alteration of the draft contract to make it work as a matter of Jersey law. 

66.      It would have been wholly unsurprising were the Royal Court to have been given exclusive jurisdiction.  This is a matter in which the parties and some witnesses are in Jersey, the subject matter of the dispute is in Jersey, and the governing law of the contract is expressly Jersey law.  It is anticipated that service would be affected within the island by the requirement that the Defendant and any sub-contractor provide an address for service within the island. 

67.      No one's attention was directed to Article 8 and what is potentially an anomalous position that every other aspect of the dispute is tied to Jersey and Jersey law, but that the English Court would be the forum to resolve that dispute.

68.      Having considered the factors and approach in Starlight Shipping and Global Maritime (above), I am satisfied that at its highest, Article 8 was designed to permit the parties to sue in the Courts of England but not to require them to do so.  In other words, it was not an exclusive jurisdiction clause.

69.      The position here is very different than that which obtained in the Alexandros case and whether or not the jurisdiction was conferred by Article 8 on the English Court inadvertently (and there is no suggestion that anyone considered it in the drafting) it would require more, in my view, to be satisfied that it conferred exclusive jurisdiction on the English Courts which have no natural nexus with any other aspect of the contract or its performance to the exclusion of the Royal Court of Jersey in the circumstances of this case.

70.      Accordingly, I decline to stay or strike out the Order of Justice on the grounds of a want of jurisdiction with this Court. 

71.      I have found that Article 8 does not amount to an exclusive jurisdiction clause.  Were I to have found otherwise, however, I believe that there are very strong reasons indeed why Jersey is the natural and appropriate forum to hear these proceedings and if I had a jurisdiction to exercise in that regard about which I express no settled view I would have exercised it to permit the proceedings to continue in Jersey.

Stay for arbitration

72.      As I indicated above, in the alternative the Defendant seeks a stay of the proceedings for arbitration. 

73.      Annex 7 of the JCT Contract applied Article 7 and Schedule 1 of the JCT Contract.  The Plaintiff in his skeleton argument appears to accept that in the light of a finding in the terms above that the matter may be stayed for arbitration.

74.      I would expect, therefore, that arbitration can be agreed and I am prepared to stay these proceedings to that end.  I suggest that arbitration may now be put in place by consent and I will consider a draft order on the papers to that end.  There is liberty to apply on arbitration.

Authorities

Interpretation (Jersey) Law 1954'.

Corruption (Jersey) Law 2006. 

Home Farm Developments v Le Sueur [2015] JCA 242. 

Trico v Buckingham [2020] JRC 009. 

Grove and Briscoe v Baker [2005] JLR 348. 

Bank of New York Mellon v GV Films [2009] EWHC 2338. 

Starlight Shipping Company v Allianz Marine and Aviation Versicherungs AG and Others (The Alexandros) [2011] EWHC 3381

Global Maritime Investment Cyprus Limited v OW Supply and Trading A/S (Under Konkurs) [2015] EWHC 2690. 

Crociani v Crociani [2014] UKPC 40. 

Donahue v Armco Limited [2001] UKHL 64. 

EMM Capricorn Trustees Limited v Compass Trustees Limited [2001] JLR 205. 

Koomen v Bender [2002] JLR Note 45