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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Frampton v McGuigan & Ors (Rev 1) [2018] NIQB 52 (14 September 2018)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2018/52.html
Cite as: [2018] NIQB 52
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Neutral Citation No: [2018] NIQB 52
Judgment: approved by the Court for handing down (subject to editorial corrections)* |
Ref: HOR10601
Delivered: 14/09/2018 |
No: 124122/2017; 124118/2017
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (COMMERCIAL LIST)
________
WRIT NO: 124122/2017
Between:
CARL FRAMPTON
Plaintiff;
and
FINBAR PATRICK “BARRY” McGUIGAN
First Defendant;
SANDRA McGUIGAN
Second defendant;
CYCLONE PROMOTIONS (UK) LIMITED
Third Defendant;
________
WRIT NO: 124118/2017
Between:
CARL FRAMPTON
Plaintiff;
and
CYCLONE PROMOTIONS LIMITED
Defendant.
________
HORNER J
Framework of Judgment
A. INTRODUCTION [1]-[5]
B. BACKGROUND FACTS [6]-[16]
C. THE ISSUES [17]
D. RELEVANT LEGISLATIVE PROVISIONS [18]-[27]
E. EX PARTE APPLICATION [28]-[32]
F. THE PRESENT APPLICATION [33]
G. THE BURDEN AND STANDARD OF PROOF [34]-[36]
H. LIS ALIBI PENDENS AND SERVICE OF PROCEEDINGS [37]-[51]
I. THE DOMICILE OF BARRY McGUIGAN
& SANDRA McGUIGAN [52]-[60]
J. CYCLONE CONNECTION COMPANIES [61]-[69]
K. THE SECOND CLAIM [65]-[71]
L. THE FIRST CLAIM [72]-[95]
M. UNJUST ENRICHMENT [96]
N. EXCLUSIVE JURISDICTION [97]-[99]
O. FORUM NON CONVENIENS [100]-[109]
P. CONCLUSION [110]-[112]
________
A. INTRODUCTION
B. BACKGROUND FACTS
“At common law, if one party believes he is dealing with person A when he is in fact dealing with B or with a non-existent person and he communicates to B an offer that is intended only for A, the mistake as to identity may prevent the contract coming into existence. If the mistake is operative the contract is void ab initio – Chitty on Contracts 32 nd Edition paras 3-036-3-044, 6-008, Shogun Finance Limited v Hudson [2004] 1 AC 919 [46]-[55], [178].”
In the alternative it seeks a declaration that the parties to the IPA were Frampton and Cyclone Promotions (UK) Limited (company no: 9320366). Finally, the relief claimed in the Second Claim includes a declaration that the IPA is void and unenforceable against Frampton on the grounds of uncertainty as to its terms regardless of who entered into it on behalf of the Cyclone Connection.
“Given the significant level of losses incurred by the Northern Ireland company one would question whether the promotional revenues including television and sponsorship monies in relation to the Carl Frampton bouts were actually recognised in the NI company.” See 3.48 of her report.
There has been no response yet to this conclusion reached by Ms Niblock.
[15] The 2015 Agreement was subject to the following material terms:
(a) Condition 2 records that Frampton had appointed McGuigan as his “sole and exclusive manager” and authorised him to act as Frampton’s agent throughout the period of the 2015 Agreement.
(b) Condition 3 related to the general obligation of the manager to ensure suitable training and boxing engagements.
(c) Condition 4 required McGuigan to arrange Frampton’s professional affairs and engagements so as to secure for the boxer all due and proper profit and reward and which at Condition 5 required him to ensure that the terms of every engagement arranged for Frampton was on terms which were “fair and reasonable and as advantageous to the Boxer as are reasonably obtainable”.
(d) Condition 6 dealt in detail with conflicts of interest and requirement to notify the British Boxing Board of Control of any engagement of Frampton where the manager might have a “financial” or other association with the intended Promoter that might reasonably be “thought to affect the Manager’s ability to act independently in the best interests of the Boxer”. It also required McGuigan to give Frampton a written copy of the terms agreed and required him to fully explain them to Frampton with an opportunity for Frampton to renegotiate them.
(e) Condition 7 provided that McGuigan will promptly give the Boxer a full and accurate written account of any money which the Manager receives and any reasonable and proper expenses which he incurs in connection with the performance of his obligations under this Agreement.
There is also a requirement on each party to permit the records of expenses to be inspected at any time.
(f) Condition 10 dealt with the receipts, expenses and commission. It sets out the entitlement of McGuigan to 25% commission as manager.
(g) Condition 11 provided for a 3 year duration of the Agreement.
(h) Condition 13 permitted the termination of the Agreement if either party is in “serious breach of his obligations”.
(i) Condition 17 noted that the Agreement “shall be governed by and construed in accordance with English law”.
The terms are intended to ensure that Frampton was properly rewarded for his endeavours and that there was a transparent process in place to ensure that Frampton not only received his lawful entitlement but also that he was able to check that he was indeed receiving his fair share.
(a) It guaranteed the promoter the exclusive worldwide promotional rights for all professional boxing bouts, including exhibitions of Frampton for a period of 3 years.
(b) It provided details as to the size of purses Frampton was to receive depending on the nature of the bout.
(c) It gave the Promoter certain intellectual property rights including unlimited rights “to transmit, photograph, record or otherwise reproduce the contests”.
(d) The term is for at least 3 years but can be terminated prematurely for a number of reasons or extended for a number of reasons.
(e) The remit is to be construed in accordance with “UK law” and each party agrees to submit to the jurisdiction of the “UK courts”.
There is no term in the IPA which reflects any entitlement of Frampton to 30% of the profits from the promotions of his fights. It is Frampton’s case that he moved from Eddie Hearn’s Matchroom to Cyclone Promotions//Blain McGuigan on the specific promise that the new arrangements would entitle him to this 30% cut.
I have attached the 2012 Agreement, the 2015 Agreement and the IPA to this judgment as a brief summary of their terms cannot adequately set out the nature of the various relationships.
C. THE ISSUES
(i) Has this court jurisdiction under the 1982 Act to hear and decide the First and/or Second Claim?
(ii) If it does have jurisdiction in either or both claims, has the Cyclone Connection satisfied the court on the balance of probabilities that Northern Ireland is a forum non-conveniens and that the two Claims should be heard and determined in England?
D. RELEVANT LEGISLATIVE PROVISIONS
“which take the form of a new Schedule 4 to the 1982 Act, and apply whether the international jurisdiction of the courts of the UK is derived from the Brussels I Regulation (original or recast), the Lugano Convention or the Brussels Convention. They also apply where there is no international question of jurisdiction, but simply a question as between the national jurisdictions of England, Scotland and Northern Ireland”: see Briggs on Civil Jurisdiction and Judgments (6 th Edition) at 2.312.
[21] Section 16 of the Act provides:
“(1) Provisions set out in Schedule 4 … shall have the effect for determining, for each part of the United Kingdom, whether the courts of law of that part, or any particular court of law in that part, have or has jurisdiction proceedings where:
(a) the subject matter of the proceedings is within the scope of the Regulation as determined by Article 1A of the Regulation (whether or not the Regulation has effect in relation to the proceedings); and
(b) the defendant of defender is domiciled in the United Kingdom or the proceedings are of a kind mentioned in [Article 24 of the Regulation].
…
(3) In determining any question as to the meaning or effect of any provision contained in Schedule 4 –
(a) regard shall be had to any relevant principles laid down by the European Court in connection with the Title II of the 1968 Convention; and
(b) any relevant decision of that court as to the meaning or effect of any provision of that Title. …”
“(1) Subject to the rules of the Schedule persons domiciled in a part of the United Kingdom shall be sued in courts of that part.
(2) Persons domiciled in a part of the United Kingdom may be sued in the courts of another part of the United Kingdom only by virtue of Rules 3-17 of this Schedule.
(3) A person domiciled in a part of the United Kingdom may, in another part of the United Kingdom, be sued –
(a) In matters relating to a contract, in the courts of the place or performance of the obligation in question;
…
(c) In matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.
(4) Proceedings which have as their object a decision of an organ of a company or other legal person or of an association of natural or legal persons may, without prejudice to the other provisions of this schedule, be brought in the courts of the part of the United Kingdom which that company, legal person or association has its seat.
(5) A person domiciled in a part of the United Kingdom may, in another part of the United Kingdom, also be sued –
(a) where he is one of a number of defendants, in the courts for the place where anyone of them was domiciled, provided the claims are so closely connected that it is expedient to hear and determinate together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”
As can be seen a defendant’s domicile determines jurisdiction subject to a number of derogations, two of which I will discuss later on in this judgment.
“…, an individual is domiciled in the United Kingdom if, and only if, he is resident in the United Kingdom, and the nature and circumstances of his residence indicates that he has a substantial connection with the United Kingdom. Similarly, an individual is domiciled in a particular part of the United Kingdom if, and only if, he is resident there, and the nature and circumstances of residence indicate that he has a substantial connection with that part.
An individual is domiciled in a particular place in the United Kingdom if, and only if, he is domiciled in a part of the United Kingdom in which that place is situated, and he is resident in that place.”
“It is frequently necessary to determine the place of an individual’s domicile, or the part of the United Kingdom in which he is domiciled. An individual is domiciled in a particular place in the United Kingdom if, and only if, he is –
(a) domiciled in a part of the United Kingdom in which that place is situated; and
(b) resident in that place.
He is domiciled in a particular part of the United Kingdom if, and only if:
(a) he is resident in that part; and
(b) the nature and circumstances of his residence indicate that he has a substantial connection with that part, but if he is domiciled in the United Kingdom and has no substantial connection with any particular part, he is to be treated as domiciled in the part of the United Kingdom in which he is resident. The latter provision deals with the case where a person has ties to the United Kingdom but does not stay long at any one place.
It will be apparent from the above that a person may be domiciled in more than one Member State or Convention State. The United Kingdom legislation seeks to answer the questions:
(a) whether an individual is domiciled in the United Kingdom; and
(b) whether an individual is domiciled in a State other than a Member State or a Convention State.”
“Nothing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non-conveniens or otherwise , where to do so is not inconsistent with the 1968 Convention (or, as the case may be, the Lugano Convention) (or the 2005 Hague Convention).” (Emphasis added)
An attempt to persuade Lord Dyson in the Court of Appeal in England in Cooke v McNeill [2016] 1 WLR 1672 that the doctrine of forum non conveniens had no application to a purely domestic case was curtly rejected: see para [30].
[28] The above provisions are an attempt to achieve a scheme which will prevent there being irreconcilable and inconsistent judgments in the different courts of the United Kingdom by setting out rules to determine which courts shall have jurisdiction to hear cases that may have some connection with two or more of the jurisdictions. As can be seen the basic rule is that jurisdiction is determined by the defendant’s domicile, but that is not an exclusive ground of jurisdiction. There are alternative grounds in respect of contract and tort but it is accepted that these are derogations from the general rule which confers jurisdiction on the courts of the defendant’s domicile, and therefore should be interpreted restrictively in order to achieve the aims of the scheme. As Lord Hodge pointed out in AMT Futures Limited v Marzillier mbH [2017] 2 WLR 853 at paragraph [13]:
“The derogating grounds of jurisdiction are justified because they reflect a close connection between the dispute and the courts of a member state other than that in which the defendant is domiciled. That close connection promotes the efficient administration of justice and proper organisation of the action …”
E. EX PARTE APPLICATION
“ Good faith and the ex parte application
It is a well-established principle applicable to ex parte applications for relief of certain kinds that the applicant is under duty to make full and fair disclosure of all material facts known to him or of which he should obtain knowledge on making proper enquiries. It was first applied to ex parte applications for injunctions, then to applications such as those for a rule nisi for a writ of prohibition (R v Kensington Income Tax Commissioners, ex parte Princess Edmond de Polignac [1917] 1 KB 486). Its most common application in modern conditions is in applications for Mareva injunctions and Anton Piller orders.
… It is quite apparent from the judgments in Brink’s-MAT Limited v Elcombe [1998] 3 All ER 188 that innocent non‑disclosure, in the sense that the importance of the material was not perceived by the applicant, may be sufficient to cause the court to discharge the ex parte order. The court has a discretion whether to discharge the order, and, finding on the facts, may decide not to do so or may grant a new order …”
(i) the date the Cyclone Connection received the writs;
(ii) the correspondence sent to the Cyclone Connection’s solicitors on 6 December 2017;
(iii) the ownership of property by the Cyclone Connection in Northern Ireland; and
(iv) the close connection between the boxing career (and the management of promotion of the boxing career) of Carl Frampton and Northern Ireland.
F. THE PRESENT APPLICATION
G. THE BURDEN AND STANDARD OF PROOF
[36] There does not appear to be any difference between the parties as to what is required in order to establish jurisdiction. Firstly, the applicant must establish a good arguable case of domicile or any of the grounds of derogation set out in Schedule 4 at paragraphs 3(a) and/or (c) of the 1982 Act: Seaconsar (Far East) Ltd v Bank Markazi [1993] 3 WLR 756 at pages 763-764. The concept of a good arguable case requires a degree of flexibility but does not require proof as high as the civil standard of the balance of probabilities but higher than whether there is a serious question to be tried: see Canada Trust Co v Stolzenburg (No. 2) [1998] 1 WLR 547.
“As a general rule the party seeking the stay (usually the defendant) must establish that there exists another forum to whose jurisdiction he is amenable, and which is clearly or distinctly more appropriate than [Northern Ireland] for the trial of the action. If the defendant fails to establish this, stay on the ground will not be granted; if the defendant succeeds in establishing it, the claimant will nevertheless be permitted to proceed in [Northern Ireland], and the action will not be stayed, if in the interests of justice the action should be permitted to proceed.”
Thus, the onus of proof that is to the civil standard, rests with the Cyclone Connection to satisfy the court to stay the First Claim and Second Claim on the ground of forum non conveniens, if I find against it on the first two issues.
H. LIS ALIBI PENDENS AND SERVICE OF PROCEEDINGS
[39] Halsbury’s Laws of England (5 th Edition) Volume 19 paragraph 404 states:
“ Lis Alibi Pendens
Where proceedings involving the same cause of action and between the same parties are brought in the court of different Regulation states or contracting states, any court other than the court first seised must have its own motion to stay its proceedings until such time as the jurisdiction of the court first seised is established. Where the jurisdiction of the court first seised is established, any other court must decline jurisdiction in favour of that court. A court seised second is not permitted to continue to hear the case on the ground that it considers that the court first seised does not have, or should not be exercising, jurisdiction.”
[43] The Cyclone Connection claims that it was the date of the issue of proceedings which resulted in the English court being seised of its proceedings first and that Frampton’s proceedings were thus issued subsequent to the English court being seised of the English claim before it. It is alleged, inter alia, that the certification on Writ 124122, the First Claim, is erroneous because proceedings were then pending in England and Wales. Further, technical defects were raised about both the writs issued by Frampton because of alleged breaches of Order 6 which I do not intend to deal with. These technical arguments were not pursued before me, presumably in the light of Morgan J’s decision in Breslin v McKenna [2005] NIQB 53.
[46] In Dresser UK Ltd v Falcongate Freight Management Ltd [1992] QB 502 at 523 Bingham LJ said:
“With genuine respect to the contrary opinions of Hirst J and Hobhouse J, it is in my judgment artificial, far‑fetched and wrong to hold that the English court is seised of proceedings, or that proceedings are decisively, conclusively, finally or definitively pending before it, upon mere issue of proceedings, when at that stage:
(i) the court’s involvement has been confined to a ministerial act by a relatively junior administrative officer;
(ii) the plaintiff has an unfettered choice whether to pursue an action and serve the proceedings or not, being in breach of no rule or obligation if he chooses to let the writ expire unserved;
(iii) the plaintiff’s claim may be framed in terms of the utmost generality;
(iv) the defendant is usually unaware of the issue of proceedings and, if unaware, is unable to call on the plaintiff to serve the writ or discontinue the action and unable to rely on the commencement of the action as a lis alibi pendens if proceedings begun elsewhere;
(v) the defendant is not obliged to respond to the plaintiff’s claim in any way, and not entitled to do so save by calling on the plaintiff to serve or discontinue;
(vi) the court cannot exercise any powers which, on appropriate facts, it could not have exercised before issue;
(vii) the defendant has not become subject to the jurisdiction of the court.
It would be wrong, at this early stage in the life of the Convention (in so far as it affects the United Kingdom), to attempt to formulate any rule which would govern all problems which may arise in the future. I am, however, satisfied that the English court became seised of these proceedings, which first became definitively pending before it, when the defendants were served on 13 July 1989. The plaintiffs and defendants then became bound by the Rules of Court to perform the obligations laid upon them respectively or suffer the prescribed consequences of default. The defendants became subject to the court’s jurisdiction unless they successfully challenged or resisted it which they were required to do then or not at all. In the ordinary, straightforward case service of proceedings will be the time when the English court becomes seised. I would, however, stress the qualification, because that is not an invariable rule. The most obvious exception is where an actual exercise of jurisdiction (as by the granting of a Mareva injunction or the making of an Anton Piller order or the arrest of a vessel) precedes service: plainly the court is seised of proceedings when it makes an interlocutory order of that kind. Further exceptions and qualifications may well arise in practice, but they do not fall for consideration in this case. I would accordingly answer the important same question in the defendants’ favour.”
[48] In Barton v Wright Hassall LLP [2018] UKSC 12 the Supreme Court had to consider the issue of service of a Claim Form, and the particulars of the claim on Wright Hassall’s instructing solicitors, Berrymans Lace Mawer, who had emailed Mr Barton, a personal litigant, asking him to address all future correspondence to them (which is similar to the present circumstances). On 24 June 2013 the last day before the expiry of the claim form, Mr Barton had sent them an email which began:
“Please find attached by means of service upon you.
1. Claim Form and Response Pack
…”
(i) Did the claimant take reasonable steps to serve in accordance with the rules?
(ii) Did the defendant or his solicitor know of the contents of the claim form when it expired?
(iii) What, if any, prejudice will the defendant suffer from validation of the non‑compliant service?
[50] In this case the Cyclone Connection, I understand, has not asked that what appears to be the non-compliant service of the claim form be validated by an order under CPR Rule 6.15. I am not surprised because it seems that on the facts such an application would be likely to fail. There is no good reason offered as to why service was not effected in accordance with the Rules: e.g. see Higgins & Others v ERC & Others [2017] EWHC 2190 (Ch) at para [16].
I. THE DOMICILE OF BARRY McGUIGAN AND SANDRA McGUIGAN
(a) The McGuigans have neither a permanent home nor indeed a temporary one in Northern Ireland.
(b) McGuigan stays for short periods at hotels in Belfast and this is wholly dependent on his commitment to the various fighters he manages.
(c) His stays in Northern Ireland are on an irregular basis.
(d) Sandra’s visits are even less frequent.
[58] Section 41(3) of the Act provides:
“An individual is domiciled in a particular part of the United Kingdom if, and only if –
(a) he is resident in that part; and
(b) the nature and circumstance of his residence indicate that he has a substantial connection with that part.”
“[14] Residence itself is not a defined term under the 1982 Act but has been the subject of judicial decisions by the courts of this country. In Dubai Bank Ltd v Abbis the Court of Appeal held that for the purposes of Section 41 of the 1982 Act the word resident had to be given its ordinary meaning and that a person was resident for the purposes of that section in a particular part of the United Kingdom if that part of the United Kingdom was his settled or usual place of abode. Saville LJ in his judgment said that a settled or usual place of abode denotes some degree of permanence or continuity.
[15] In that case the issue concerned the occupational flat in London and one of the pieces of evidence considered by the judge and by the Court of Appeal was whether or not the defendant was registered at those premises for council tax purposes. Saville LJ indicated in his judgment that he thought that this was a highly material circumstance for purposes of deciding whether or not the requirement of residence had been fulfilled. But, clearly, the application of a test requires a consideration of all relevant circumstances, depending on the facts of any particular case.
[16] For me to be satisfied in this application as to whether or not Mr Theron was at the date of the issue of these proceedings domiciled in England, it is not necessary for me to reach a conclusive view about that matter. In Canada Trust v Stolzenberg No: 2 [1992] 1 WLR 547 it was accepted, and the House of Lords subsequently confirmed, that the Claimant had simply to establish a good arguable case that the Defendant was domicile in the jurisdiction at the date of the issue of proceedings.”
J. THE CYCLONE CONNECTION COMPANIES
There is also prima facie evidence of:
(a) Breaches of the Companies Act 2006 as a consequence of the failure of companies within the Cyclone Connection to display their name on, inter alia, business documents. For example, the IPA which lies at the heart of these claims simply refers to Cyclone Promotions when there are least 3 companies which contain the term Cyclone Promotions, although they all have different shareholders and Directors.
(b) Companies in the Cyclone Connection being incorporated with the same name as other registered companies. The incorporation of the new company with the same name takes place shortly after the original company has been dissolved or changed its name prior to the new company being established.
(c) Companies within the Cyclone Connection being in breach of the requirements of the Companies Act 2006 by filing their accounts or annual returns late.
The report also raises serious concerns about how Cyclone Promotions Limited, if it was indeed Frampton’s promoter as the Cyclone Connection assert, could have reported losses in each of its reported trading years despite Frampton’s successes in the ring, and ended up with a progressively deteriorating balance sheet leading to nett liabilities which as of 29 March 2016 amounted to nearly £550,000. As I have noted, there is also the absence of any evidence that the income/profits from the promotions of Carl Frampton’s bouts had been reported or recognised in the financial accounts of Cyclone Promotions Limited: see 3.46 of the ASM report.
(i) In respect of the five fights between 28 February 2015 and 28 January 2017 there are only three bout agreements which have been produced. Of the three agreements only one of is with Cyclone Promotions.
(ii) HMRC has demanded £397,000 approximately in respect of tax liability of Cyclone Promotions Limited. The explanation provided by the Cyclone Connection is that this related to a reclaim of VAT. But there are no documents available to explain how this liability arose. Frampton disputes any responsibility on his part to repay this to HMRC.
(iii) The requirement in the 2015 Agreement at Condition 7 to provide to Frampton a “full and accurate written account of any money which the Manager receives, and reasonable and proper expenses which he incurs” in performing his obligations under the Agreement seems to have been ignored. No detailed account of income received or of expenses incurred has been provided.
K. THE SECOND CLAIM
[68] There is, as Mr Millar QC put it, a presumptive entitlement that the Northern Ireland court should have a jurisdiction. Or as is sometimes said, “defendants play at home”. I do not understand this to be contentious. The relief sought includes, inter alia, asking the court to determine whether the IPA was entered into between Frampton on the one part and Blain McGuigan//Cyclone Promotions on the other part, is void. This is a well‑recognised ground for relief in proceedings where there is a jurisdictional dispute: see Dicey, Morris and Collins on the Conflict of Laws (15 th Edition) at 12-048 and, for example, Agnew v Lansforsakringsbolagens (AB) [2000] 2 WLR 497 per Lord Wolff at pages 506-507.
[69] Mr Sykes, solicitor for the Cyclone Connection avers, inter alia, that:
(a) The commercial premises out of which Cyclone Promotions Ltd operated was in England.
(b) The business of Cyclone Promotions Ltd was carried out by employees and agents in England and Wales, and in particular by Blain McGuigan who is a co-signatory of the IPA and who is resident in England.
(c) The accounts and administrative activities relating to the IPA were addressed in the English offices.
(d) Frampton’s training camps were in England when he fought Avalos, Quigg and Santa Cruz.
[70] However, it is noteworthy that:
(a) Mr Sykes is a solicitor. It is not clear whether he is making all these statements from his own first-hand knowledge or from the information he has been given. If the latter, the source of this information is not included in his affidavit: see Order 41 Rule 5 of the Rules of the Court of Judicature (NI) 1980.
(b) There is no affidavit from McGuigan or Blain McGuigan or any other Director or officer dealing with the issue of where central management or control has been exercised or where its place of business is.
(d) Sandra McGuigan, Director in Cyclone Promotions Ltd, omits to deal with this issue in her affidavit.
(e) There is a complete absence of any documentary evidence. This is against the background where every company will leave a paper trail of some sort which will either provide support for or undermine the claims of Mr Sykes. No explanation is offered for the failure to exhibit the relevant documentary evidence in support of the affidavit of Mr Skyes.
(a) It is accepted that Cyclone Promotions Ltd is domiciled in Northern Ireland. It has been incorporated in Northern Ireland and has its registered office here.
(b) I am satisfied that Northern Ireland was the first jurisdiction seised of any of these proceedings, namely the First and Second Claims.
(a) There are serious issues to be tried in the Second Claim. These include:
(i) Is the IPA void because of a mistake on the part of Frampton as to the party with whom he was contracting?
(ii) Was the party with whom Frampton was contracting in respect of the IPA, Cyclone Promotions Limited (company no: NI619080), Cyclone Promotions (UK) Limited (company no: 9320366), or some other entity identified as Cyclone Promotions and/or Blain McGuigan either on his own behalf or as a director or shadow director of one of the three companies mentioned in paragraph [63] above or some other company?
(iii) In any event are the terms of the IPA too uncertain to be enforced regardless of who the contracting parties are?
(iv) On the basis that Blain McGuigan signed the IPA in his own right, that is as a co-promoter along with Cyclone Promotions (who the Cyclone Connection assert is Cyclone Promotions Limited), this gives rise to two immediate problems. Firstly, the agreement was not executed lawfully and in accordance with Sections 43 and 44 of the Companies Act 2006. Secondly, if Blain McGuigan executed the IPA in his own right rather than as a Director he placed himself in a conflict of interest and was therefore acting contrary to Sections 175-177 of the Companies Act 2006.
(b) There is a good arguable case that the court has jurisdiction to hear the Second Claim because Cyclone Promotions Limited is domiciled here. It was incorporated in Northern Ireland and it has its registered office here.
(c) It is a matter for the English courts to decide, after hearing argument, whether they will accept jurisdiction for the claim brought by “Cyclone Promotions//Blain McGuigan” against Frampton.
(d) Further, for reasons which I will set out later in this judgment I am not persuaded by the argument advanced by the Cyclone Connection that Northern Ireland is “forum non conveniens” in respect of these disputes.
L. THE FIRST CLAIM
General Observations
(a) Whether there are serious issues to be tried in the First Claim?
(b) Whether there is a good arguable case that Northern Ireland has jurisdiction?
(c) Whether Northern Ireland is forum non conveniens?
“(i) In matters relating to a contract, in the courts for the place or performance of the obligation in question. (“The contractual ground”)
(ii) In matters relating to tort, delict or quasi-delict in the courts of the place where the harmful event occurred or may occur.” (“The tortious ground”)
See para 367 of Vol 19 of Halsbury’s Laws of England at Volume 19 (5 th Edition).
The Contractual Claim
[78] It is clear in respect of both the contractual ground and the tortious ground, that these are exceptions to the general rule, namely that domicile should determine jurisdiction. Therefore, as I have noted, they should be interpreted restrictively. In respect of the contractual ground this is a two-step process. In De Bloos SPRL v Bouyer SA [1976] ECR 1497 the European Court held that the “obligation” was the contractual obligation which formed the basis of the legal proceedings. Once the relevant contractual obligation has been identified the next issue is to determine where it is to be performed. In GIE Groupe Concorde v The Master of the Vessel “Suhadiwarno Panjan” [1999] ECR I-6307 the ECJ reaffirmed that the place or performance of the obligation is to be determined in accordance with the law governing the obligation in question according to the conflict of laws of the courts seised: see Dicey, Morris & Collins on the Conflicts of Law at 11-278.
“One thing that must, simply must, be done away with is this crazy situation where a manager can also be a promoter. The Board tried to abolish the practice in 1989, but all that happened was that a manager would get a son or a friend or a business associate to be the promoter of record and the whole charade continued exactly as before. The Board had to reinstate the rule at the 1990 AGM but I am sure that if the boxers had been organised enough to out vote the managers and promoters the rule would have been abolished years ago.
There should never be any financial connection whatsoever, either directly or indirectly, between any manager and any promoter. Even a blind man can see that when you have the one person wearing the two hats – or having somebody else wear one for him – then that is an obvious conflict of interest.”
“The question is not at what age I wish to retire, it is at what income.”
The Tort, Delict or Quasi-Delict Claims
[86] The main thrust of the claims made by Frampton in tort is those grounded upon the “equitable wrongs” which Frampton claims were committed by the Cyclone Connection. Such claims are caught by the phrase “matters relating to tort, delict or quasi-delict”: see Casio Computers v Sayo [2001] 1 LPr 43 at paras [15]‑[17] and see Kalfelis v Bankhaus Schroder Munchmeyer Hengst and Co [1988] ECR 5565. As I have said little time was expended by either side on the issue of whether there is a serious issue to be tried on the merits on what I refer to for ease of reference as the tortious claims because it is a low hurdle which can be easily overcome. I am satisfied that there has been sufficient evidence adduced in the affidavits to overcome that obstacle and that serious issues on the merits have been raised on the tortious claims.
(a) that the damage which occurred was suffered within Northern Ireland; and/or
(b) the harmful event/wrongful act occurred within Northern Ireland: see Civil Jurisdiction and Judgments (6 th Edition) at 2.198 and Handelskwekerij GJ Bier BV v Mines de Potasse d’Alsace [1976] ECR 1735 at pages 1746-147.
[88] The Supreme Court considered Article 7 of the Brussels I Regulation which is the equivalent to Rule 3(c) of Schedule 4 of the 1992 Act in the case of AMT Futures Ltd v Marzillier, Dr Meier and Dr Guntner Rechtsanwaltsgesellschaft mbH [2017] 2 WLR 853. Lord Hodge delivered the judgment with which the rest of the court agreed. He said:
“ The Judgments Regulation
12. The general principle is that civil actions are to be brought against individuals and companies in the courts of the place where they are domiciled. It would be contrary to the objectives of the Judgments Regulation to interpret it as requiring the recognition of the jurisdiction of the courts of the claimant's domicile, except where it expressly so provides, as that would enable the claimant to determine the competent court by choosing his own domicile: Dumez France SA and Tracoba Sarl v Hessische Landesbank (Helaba) (Case C-220/88) [1990] ECR I-49 , paras 16–19; Kronhofer v Maier (Case C-168/02) [2004] 2 All ER (Comm) 759 , para 20.
13. The derogations from the general rule which confers jurisdiction on the courts of the defendant's domicile, including article 5(3) , must be restrictively interpreted in order to achieve the aims of the Judgments Regulation : Kronhofer v Maier (above), paras 12–14; Coty Germany GmbH v First Note Perfumes NV (Case C-360/12) [2014] Bus LR 1294 , paras 43–45. The derogating grounds of jurisdiction are justified because they reflect a close connection between the dispute and the courts of a member state other than that in which the defendant is domiciled. That close connection promotes the efficient administration of justice and proper organisation of the action: Dumez France SA and Tracoba Sarl v Hessische Landesbank (above), para 17; Kronhofer v Maier (above), para 15.
14. It is necessary, in my view, to distinguish between the terms of a derogating ground of jurisdiction on the one hand and the rationale or justification for the ground on the other as it is the former which confers jurisdiction, not the latter. I discuss this point further in para 29 below.
15. The CJEU has ruled on the correct approach to article 5(3) . It has interpreted the phrase “the place where the harmful event occurred” (a) to give the claimant the option of commencing proceedings in the courts of the place where the event occurred which gave rise to the damage or in the courts of the place where the damage occurred (if the event and damage were in different member states): Handelskwekerij GJ Bier BV v Mines de Potasse d'Alsace SA (Case C-21/76) [1978] QB 708 , para 24; (b) as “the place where the event giving rise to the damage, and entailing tortious … liability, directly produced its harmful effect upon the person who is the immediate victim of the event” and thus not the place where an indirect victim, such as the parent company of the immediate victim, suffered financial loss as a result: Dumez France SA and Tracoba Sarl v Hessische Landesbank (Helaba) (above), para 20; and (c) consistently with (b) above, where a victim suffered harm in one member state and consequential financial loss in another, as referring to the place where the initial damage occurred: Marinari v Lloyds Bank plc (Case C-364/93) [1996] QB 217 , paras 14 and 15. The focus in (b) and (c) is thus on where the direct and immediate damage occurred.
16. Similarly, in Kronhofer v Maier (above) an investor domiciled in Austria raised an action in his country against investment consultants based in Germany who had given him investment advice by telephone which led him to send funds to Germany to be placed in an investment account and used in an unsuccessful speculative investment. He argued that, because the financial loss caused by that investment diminished the totality of his assets which were concentrated in Austria, he could sue in the courts of the country of his domicile. The CJEU did not agree. It held that Article 5(3) did not allow a claimant who had suffered financial damage resulting from the loss of part of his assets in another contracting state to sue in the place of his domicile or where his assets were concentrated.”
He then went on to say:
“40. Recent case law of the CJEU does not suggest that the court has moved from the principles and approach which I have set out in paras 11–13 and 15–16 above. The CJEU has repeatedly stated in recent times that the provisions of the Regulation must be interpreted independently by reference to its scheme and purpose, and derogations from the general rule that jurisdiction is given to the Court of the defendant's domicile have to be interpreted restrictively: Melzer v MF Global UK Ltd (Case C-228/11) [2013] QB 1112 , paras 22, 24; Coty Germany (above) , paras 43–45; and Kolassa v Barclays Bank plc (Case C-375/13) [2016] 1 All ER (Comm) 733 , para 43.
41 The focus in Article 5(3) , which is relevant to AMTF's claim, remains on the place where the event resulted in the initial damage: Zuid-Chemie BV v Philippo's Mineralenfabriek NV/SA (above), paras 26–32; Universal Music International Holding BV v Schilling (Case C‑12/15) [2016] QB 867, paras 30–34. There is no complexity in the present case in identifying that place which might cause the CJEU to develop a special rule as to the location of the harmful event.”
“The court has jurisdiction, in matters relating to tort, if (Northern Ireland) is the place where the harmful event occurred, ie, if (Northern Ireland) is the place where the damage occurred or where the event which gave rise to the damage occurred.”
(a) Frampton through McGuigan, his manager, entered into an IPA with Cyclone Promotions (UK) Limited.
(b) Frampton agreed terms for 5 (sic) separate title bout contracts in Northern Ireland (2), England (1) and the United States of America (3).
(c) The purses apart from the fight against Santa Cruz on 28 January 2017 were paid to Cyclone Promotions (UK) Limited.
(d) Cyclone Promotions (UK) Limited then received substantial monies in respect of the broadcasting rights, ticket sales and merchandising, including Frampton’s capital share.
(e) Cyclone Promotions (UK) Limited owed to the plaintiff various duties in respect of those monies but it went into dissolution without paying to Frampton his Share, that is significant sums of money which were then due to him.
(f) The purse monies in respect of the boxing match against Santa Cruz on 28 January 2017 were paid to CPUK, a company bearing the same name but incorporated immediately after Cyclone Promotions (UK) Limited’s dissolution.
(g) It is alleged that this failure to account to Frampton for his Share was as a consequence of the equitable wrongs carried out by, inter alia, McGuigan and Sandra McGuigan as Directors of Cyclone Promotions (UK) Limited and that CPUK owes money due in respect of, inter alia, the second Santa Cruz fight. It is alleged that money was siphoned off which included “purse monies, broadcasting rights, ticket sales and merchandising proceeds” received by Cyclone Promotions (UK) Ltd, to which it was not entitled and that McGuigan dishonestly assisted Cyclone Promotions (UK) Limited in diverting funds to which it was not entitled.
[92] In Bier BV v Mines de Potasse d’Alsace SA [1978] QB 708 the ECJ held that the place where the damage occurred was to be determined, not by the diverging solutions of national law, but by an autonomous interpretation and that the meaning of the expression “the place where the harmful event occurred” in Article 5(3) must be interpreted so that the plaintiff has an option to commence proceedings either at the place where the damage occurred or at the place of the event giving rise to it.
“… in our opinion it is likely that the majority of the profits generated in respect of Carl Frampton, the fighter and brand, were generated in Northern Ireland.”
M. UNJUST ENRICHMENT
[98] A claim for unjust enrichment was made by Frampton but this was ultimately not pursued.
N. EXCLUSIVE JURISDICTION
O. FORUM NON CONVENIENS
[103] Halsbury’s Laws of England Volume 19 paragraph 407 states:
“As a general rule the parties seeking the stay (usually the defendant) must establish that there exists another forum to whose jurisdiction he is amenable, and which is clearly and distinctly more appropriate than (Northern Ireland) for the trial of the action. If the defendant fails to establish this, a stay on this ground will not be granted; if the defendant succeeds in establishing it, the claimant will nevertheless be permitted to proceed in (Northern Ireland) and the action will not be stayed, if in the interests of justice the action should be permitted to proceed.
In determining whether there is another forum clearly or distinctly more appropriate than (Northern Ireland) for the trial of the action, the court is entitled to take into account all factors connected to the parties, the claim or the action, including:
(i) the residence of the parties;
(ii) the factual connections between the dispute and the courts, such as the place where the relevant events occurred and the residence of the witnesses;
(iii) the law which will be applied to resolve the dispute;
(iv) the possibility of lis alibi pendens or other related proceedings; and
(v) the question whether other persons may become parties to the litigation.
The question of which factors are relevant, the weight to be accorded to each of them (which will vary from case to case), is essentially one for the discretion of the trial judge, with whose assessment an appellate court will be reluctant to interfere.”
[104] The principle of forum non conveniens was set out by Lord Goff in his speech to the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 450. It has since been analysed and further refined in other cases. It is most recently considered, reviewed and “refreshed” in VTB Capital Plc v Nutritek International Corp [2013] UKSC 5.
“[1] (Northern Irish) courts have jurisdiction, whenever it is necessary to prevent injustice, to stay or strike out proceedings in (Northern Ireland).
[2] Subject to the provisions of Council Regulation (EC) 44/2001 and the Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (‘the Brussels I Regulation’ and the ‘Lugano Convention’ respectively), a (Northern Irish) court has power to order a stay of proceedings on the basis that (Northern Ireland) is an inappropriate forum if:
(a) the defendant shows that there is another court with competent jurisdiction which is clearly distinctly more appropriate than (Northern Ireland) for the trial of the action; and
(b) it is not unjust that the claimant be deprived of the right to trial in (Northern Ireland).”
[107] There is no dispute that Frampton will receive a fair trial in England in respect of both Claims currently before the court in Northern Ireland. However, in the Second Claim the defendant is domiciled in Northern Ireland. In the First Claim there is a closer and more real connection with Northern Ireland when compared with England: see Deutsche Bank AG v Highland Crusader Off-Shore Partners LP [2009] EWCA Civ 725. Frampton is a Belfast fighter who was born, bred and who lives in Northern Ireland. Most of the income generated from his fights has been generated in Northern Ireland. Cyclone Promotions Ltd is a Northern Ireland company. Against that Frampton trains in England. The McGuigans live in England. Cyclone Promotions (UK) Ltd was registered in England, as is CPUK and it is claimed that both it and Cyclone Promotions Ltd have or had their places of business in London.
[109] As I have stated the law to be applied, that is the law of contract and tort, is the same in England as in Northern Ireland. There is also a lis alibi pendens which I have discussed earlier in the judgment. I have no hesitation in concluding that having read all 4 files of material which has been filed in court that Northern Ireland, and in particular Belfast, is most closely connected with this dispute. It is where the money is alleged in most part to have been wrongly diverted. It is the centre of the obligation in question. Bateman and Others v Birchal Blackburn LLP [2014] NIQB 112 sets out various matters which the court should take into account in determining the issue of forum non conveniens. I have considered all those factors. I have also taken into account the decision of Lennon v Scottish Daily Record and Sunday Mail Limited [2004] EWHC 359 (QB) at para [18]. I am satisfied the Northern Ireland court can offer an expeditious trial. It will be considerably less expensive to litigate in Belfast rather than in London. As I have already observed, the law in Northern Ireland is the same as it is in England and Wales, witnesses will not be inconvenienced and it will be held in a country in which all the parties are closely connected, even if some of them are not domiciled here.
P. CONCLUSION
[113] On the basis of the present information, the court has reached the following conclusions:
(i) The Northern Ireland courts were seised of the proceedings commenced by Writ Nos: 124118 and 124122 before the English claim No: HQ17X04251 was served. It is the date of service of proceedings which determines priority in the United Kingdom.
(ii) It will be for the English court to decide whether it deals with the claim brought by Cyclone Promotions Ltd and Blain McGuigan against Carl Frampton, who is domiciled in Northern Ireland.
(iii) In any event, logically it makes sense to deal with the issue of whether or not the IPA is void and/or unenforceable before considering whether or not it has been repudiated by Frampton and gives rise to a claim for damages.
(iv) Neither McGuigan, nor his wife, nor his son Blain, nor Cyclone Promotions (UK) Ltd, nor CPUK are or were domiciled in Northern Ireland.
(v) There are serious issues raised on the merits of the claims made by Frampton save where I have stated otherwise.
(vi) The Northern Ireland courts have jurisdiction to hear the claims brought by Frampton on the basis that Cyclone Promotions Ltd is a company formed in Northern Ireland with its registered office in Northern Ireland and thus is domiciled here. Secondly, while McGuigan, Sandra McGuigan, CPUK and Cyclone Promotions (UK) Ltd are not domiciled in Northern Ireland, Frampton is entitled to rely on the special jurisdiction, namely that Northern Ireland is the place of performance of the obligation in question.
(vii) Further and in the alternative, Northern Ireland is both the place where the harmful event occurred and/or where the event which gave rise to the damage occurred.
(viii) The Cyclone Connection has failed to satisfy the court that the appropriate forum for hearing these two actions is England. On the evidence available to the court Northern Ireland is the appropriate jurisdiction for the hearing of both claims brought by Frampton against the Cyclone Connection. It is noteworthy that Northern Ireland was first seised of these proceedings. The case will come on for hearing here more expeditiously, and the costs incurred on both sides are likely to be of a much more modest order.
(ix) The issue of whether or not a claim for unjust enrichment can be made against the Cyclone Connection in Northern Ireland was not pursued.
(x) Frampton has not raised a triable issue that McGuigan as his manager was in breach of contract by failing to make the necessary arrangements for his training and preparation for his bouts. This case was simply not argued before me.
(xi) Mr McCollum QC had submitted that only all three sets proceedings can be heard in England and Wales. I do not accept that this is correct. However it will be a matter for the English court in due course to decide what approach it takes to the proceedings currently before it, which all parties agree, can be heard in Northern Ireland because of the domicile of Cyclone Productions Limited.
[114] Therefore in answer to the two central issues proposed to the court by the parties I say:
(i) Yes, this court has jurisdiction to hear the Claims brought by Frampton subject to the qualifications expressed in this judgment.
(ii) No, the Northern Ireland court is not a forum non conveniens.
(i) As I have heard this application , I consider that I am best placed to make the order for costs and it is not appropriate or fair to reserve this matter to the trial judge.
(ii) The First Claim raised many more issues and occupied considerably more of the court’s time than the Second Claim.
(ii) Costs normally follow the event: see Order 62, Rule 3 of the Rules of the Supreme Court (NI). The event was whether the Northern Ireland court had jurisdiction to hear either or both the Claims. Frampton succeeded in establishing that the Northern Ireland court had jurisdiction in respect of both the First Claim and the Second Claim.
(iii) The hearing was an interlocutory one. The jurisdiction bar is a low one and the court is not in a position to determine who is right and wrong in respect of many matters which remain highly contentious. As I have made clear the court will only be able to make a judgment when it has heard from both sides. It will be for the trial judge to determine where the truth lies when he has heard sworn testimony which has been tested on cross-examination. I consider that it would be unfair for Frampton to be given the costs of this application now if it should turn out that the allegations he had made against the Cyclone Connection were baseless as the Cyclone Connection claims. Such an award would not be in accordance with the over-riding objective of the Rules of the Supreme Court (NI) under Order1, Rule1 A. I also note that Valentine in his book on Civil Proceedings in Northern Ireland suggests that normally the costs of interlocutory proceedings should be the successful party’s costs in the cause: see 17.65.
(iv) Frampton while successful on the issue of jurisdiction, did raise arguments on other issues which he has lost as appears from this judgment. In the First Claim, for example, considerable time was spent on the issue of the domicile of the McGuigans, which I have decided against Frampton. It was suggested that this evidence was also relevant to the issue of forum non conveniens which was resolved in Frampton’s favour. I reject that. If there was any overlap, it was modest. The proper way to reflect Frampton’s failure on this issue and others in both actions is to apportion costs.