The decision suggests that for these rules to apply the defendant must be a party to the contract or otherwise be seeking to rely on the contract.
The High Court has upheld a jurisdiction challenge by a Russian defendant, finding that there was no good arguable case that it was a party to the charterparty which contained an English jurisdiction clause and on which the claimant had relied in serving the claim form out of the jurisdiction without the court's permission: White Rock Corporation Ltd v Middle Volga Shipping Company [2025] EWHC 2089 (Comm).
The rules relating to service out of the jurisdiction have undergone significant changes in recent years, particularly following on from Brexit and the UK's departure from the EU regime governing questions of jurisdiction and the enforcement of judgments. Pre-Brexit, a claim form could be served out of the jurisdiction without the court's permission where the court had jurisdiction under that regime, which included where there was an English jurisdiction clause.
After the UK left the EU, a new rule was introduced to reinstate the ability to serve out without permission where the claim falls within an English jurisdiction clause (whether or not it is an exclusive jurisdiction clause for the purposes of the Hague Choice of Court Convention 2005, for which there was an existing provision). A separate gateway allowing service out with the court's permission where the claim is "in respect of" a contract containing an English jurisdiction clause was removed, as it was thought to be redundant, but the rule allowing service out without permission was subsequently amended to include an apparently similar provision.
Following these changes, there has been some uncertainty as to the breadth of the new provisions. The current decision is one of a number which suggests that they are not as broad as they may appear on their face, but instead are limited to cases where the defendant is party to a contract containing an English jurisdiction clause, or is seeking to enforce rights under such a contract without adhering to the jurisdiction clause.
Background
The claimant charterers brought a claim against the two defendants alleging breach of a charterparty for the hire of four vessels. The charterparty contained an English law and jurisdiction clause.
The claimant obtained the court's permission to serve the claim form on the defendants by alternative means. It did not seek permission to serve the defendants out of the jurisdiction but instead relied on CPR 6.33(2B)(b) and (c), which allow a claim form to be served out of the jurisdiction without the court's permission where:
"(b) a contract contains a term to the effect that the court shall have jurisdiction to determine that claim; or
(c) the claim is in respect of a contract falling within sub-paragraph (b)."
The first defendant, Middle Volga, a Russian company, challenged jurisdiction on the basis that it was not a party to the charterparty and therefore was not bound by the jurisdiction agreement contained in it.
Decision
The High Court (Peter MacDonald Eggers KC sitting as a deputy judge) upheld Middle Volga's jurisdiction challenge, finding that the claimant had the burden of proving that it had a good arguable case that Middle Volga was a party to the charterparty. Otherwise, the court's jurisdiction could not be established pursuant to CPR 6.33(2B). On the evidence, the claimant had failed to discharge that burden.
Referring to IBM United Kingdom Ltd v LZLabs GmbH [2022] EWHC 2094 (TCC), the deputy judge said that the "contract" referred to in sub-paragraph (b) of CPR 6.33(2B) must be one by which the defendant is bound. That made sense, he said, because a contractual term endowing the English court with jurisdiction can only be relevant if the claimant and the defendant are a party to that contract, ie the claimant is contractually entitled to assert that the defendant must submit to the jurisdiction and the defendant is contractually obliged so to submit.
As for sub-paragraph (c) of the rule, the deputy judge referred to relevant minutes of the Civil Procedure Rule Committee which clarified that this sub-rule was introduced to address the particular scenario where a claimant disputes that it is in a binding contract with the defendant but argues that, if the defendant seeks to assert rights under that contract, it can do so only in accordance with the contract and the English jurisdiction clause it contains. In other words, sub-rule (c) was introduced to allow a claimant to obtain an anti-suit injunction on a "quasi-contractual" basis.
The deputy judge referred to Foxton J's recent decision in JP Morgan International Finance Ltd v Werealize.Com Ltd [2025] EWHC 1842 (Comm), in which Foxton J had commented that the broad "in respect of" wording of sub-rule (c) may, as noted in White Book commentary, be thought to go further than the quasi-contractual scenario referred to above. However, Foxton J said that in introducing the rule the relevant subcommittee's focus was on claims that would fall within the jurisdiction clause, even if not on a contractual basis. He added that the narrower, quasi-contractual interpretation fitted better with the fact that the provision does not have discretionary safeguards as it allows service out of the jurisdiction without the court's permission. If the amendment had gone further than that, its non-discretionary nature would be a relevant factor when testing the connection between the claim and the contract containing the jurisdiction clause.
The deputy judge noted, among other submissions made by Middle Volga, that there is a separate gateway at para.3.1(8A) of Practice Direction (PD) 6B which allows service out with the court's permission where a claim alleges unlawfully causing or assisting in a breach of contract where (among other things) the contract falls within CPR 6.33(2B). That gateway was introduced at the same time as sub-paragraph (c) of CPR 6.33(2B), but it would be otiose if sub-rule (c) extended to claims against non-parties "in respect of" a contract generally.
Taking all of these points into account, the deputy judge concluded that CPR 6.33(2B)(b) and (c) are limited to cases where:
"(1) There is a good arguable case that there is a contract which contains a term endowing the English Court with jurisdiction and which is binding on the defendant and can be relied on and asserted by the claimant as a matter of contract.
(2) The defendant asserts that it is entitled to rely on a contract against the claimant, which the claimant disputes, but the defendant seeks to enforce its claim other than in accordance with the jurisdiction agreement contained in that contract, and the claimant wishes to hold the defendant to the jurisdiction agreement in that contract."
The deputy judge did not consider that these sub-rules could be relied on merely because the claim is "in respect of" a contract where there is no good arguable case that the defendant is party to the contract or where the defendant is itself not relying on the contract.
In the present case, the deputy judge concluded that Middle Volga had the better of the arguments, on the available evidence, that it was not a contracting party to the charterparty or the jurisdiction agreement it contained. Among other indications, the document encapsulating the charterparty confirmed that the vessels had no connection with Russia including but not limited to commercial ties. The fact that Middle Volga was a Russian company therefore indicated that the parties did not intend Middle Volga to be a contracting party. Further, it was the second defendant rather than Middle Volga that issued relevant invoices and was named in the formal charterparty document.
Accordingly, the claimant had not discharged the burden of establishing a good arguable case that it contracted with Middle Volga and the jurisdiction challenge therefore succeeded.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
