The decision suggests that a third party may be bound by a jurisdiction clause even though it is not party to the contract containing it.
The High Court has held that it has jurisdiction to hear a claim by a third party to a contract, in this case a director of a company sold under a sale and purchase agreement (SPA) who was seeking to enforce a warranty by the seller not to bring any claim against him relating to the transaction. The director was expressly entitled by the terms of the SPA to enforce the warranty under the Contracts (Rights of Third Parties) Act 1999: Campeau v Gottex Real Asset Fund 1 (OE) Waste SARL [2025] EWHC 2322 (Comm).
The court found that there was a good arguable case that the director's claim was covered by the exclusive English jurisdiction clause in the agreement, which meant that it could be served on the seller out of the jurisdiction without the court's permission under the relevant procedural rules. For those rules to allow a claim to be served out of the jurisdiction without permission based on a contractual jurisdiction clause, the defendant must be a party to the contract. However, there was no requirement that the claimant should also be a party. It was sufficient in this case that the defendant was a party and, as the court held, the jurisdiction clause in the SPA should be interpreted as broad enough to cover claims by and against non-parties.
In case it was wrong on the scope of the jurisdiction clause as a matter of contractual interpretation, the court also considered whether the effect of the 1999 Act was to require third party claims to be brought in accordance with the clause. This is a somewhat controversial question, with conflicting first instance authority. The court in this case concluded that third party claims will be subject to a contractual jurisdiction clause if that clause would apply to a dispute between the parties regarding the term the third party is seeking to enforce. In the present case, therefore, the effect of the 1999 Act would also have been that the jurisdiction clause applied and, on this basis too, the claim could be served out of the jurisdiction without the court's permission.
Background
The dispute arose out of the sale of a company (GEHCL) by the defendant (OE Waste). The claimant, Mr Campeau, was a director of GEHCL.
The SPA contained, at clause 10.3, a warranty that OE Waste would not bring any claim against GEHCL or any of its directors, officers, employees or agents in connection with the sale, and a waiver of the right to bring any such claim. The clause went on to say that it was intended that GEHCL or any of its directors (etc) would be entitled to the benefit of the undertakings, releases and waivers provided for in the clause for the purposes of the 1999 Act. Clause 18.2 of the SPA provided for the exclusive jurisdiction of the English courts.
OE Waste commenced proceedings in Luxembourg against Mr Campeau alleging that he had acted negligently in connection with the negotiation of the SPA, resulting in GEHCL being sold at an undervalue.
Mr Campeau contested the jurisdiction of the Luxembourg courts, making it clear that he also considered the claim to be without merit. He also commenced proceedings in the English court seeking a declaration that OE Waste had waived any right to bring the claim it asserted in Luxembourg and an anti-suit injunction requiring OE Waste to discontinue the Luxembourg proceedings.
The claim form was served on OE Waste in Luxembourg without the court's permission relying on CPR 6.33(2B)(a), and Mr Campeau subsequently indicated that he would also rely on sub-rules (b) and (c). CPR 6.33(2B) provides for a claim for to be served out of the jurisdiction where, for each claim included in the claim form:
"(a) the court has power to determine that claim under the 2005 Hague Convention and the defendant is a party to an exclusive choice of court agreement conferring jurisdiction on that court within the meaning of Article 3 of the 2005 Hague Convention;
(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)."
OE Waste challenged the court's jurisdiction on the basis that Mr Campeau was not a party to the SPA and was not permitted to rely on the exclusive jurisdiction clause it contained either under the 1999 Act or otherwise, and there was no other basis for the application of sub-rules (b) or (c).
Mr Campeau claimed that he could rely on the jurisdiction clause either because, on the proper construction of clause 18.2, it encompassed disputes over the extent of Mr Campeau's rights under the SPA (and in particular clause 10.3) or because that was the effect of the 1999 Act.
Decision
The High Court (Butcher J) held that the court had jurisdiction under CPR 6.33(2B)(b), and probably also 6.33(2B)(a) and (c).
Interpretation of CPR 6.33(2B)
The judge first considered what is required by each of the sub-rules at CPR 6.33(2B). He noted that sub-rule (a) can have no application unless the dispute falls within the scope of an exclusive jurisdiction clause (as defined in the 2005 Hague Convention). However, while the rule refers to the defendant being a party to such a clause, it is not a necessary requirement that the claimant is a party – though it typically will be.
As for sub-rule (b), Butcher J agreed with the limitation set out in IBM United Kingdom Ltd v LZLABS GmbH [2022] EWHC 2094 (TCC) that the defendant should be a party to the jurisdiction clause in question – though that is not stated in the rule. But again, he said, there is no requirement that the claimant must be a party. What is required is that the contract provides for the court to have jurisdiction to determine "that claim", ie the claim put forward in the claim form must be within the scope of the jurisdiction clause.
In relation to sub-rule (c), the judge agreed with the comments of Foxton J in JP Morgan International Finance Ltd v Werealize.Com Ltd [2025] EWHC 1842 (Comm) that the claim must fall within the scope of the jurisdiction clause, even if only on a quasi-contractual basis. See further the discussion in White Rock Corporation Ltd v Middle Volga Shipping Company [2025] EWHC 2089 (Comm), considered in our blog post here.
Accordingly, the fact that Mr Campeau was not a party to the SPA did not preclude him from relying on any of the sub-rules of CPR 6.33(2B). However, in order to rely on any of them he would need to show that his claims were within the scope of the jurisdiction clause.
Scope of the jurisdiction clause
As noted above, Mr Campeau's primary case was that he could rely on clause 18.2 because, on its proper construction, it encompassed disputes over the extent of his rights under the SPA.
Having considered the relevant authorities, Butcher J said that, in the absence of express words, the starting point is that only the parties to the contract are covered by a jurisdiction clause in the contract. But the issue is one of construction and the usual rules apply.
In the present case, Butcher J considered that the clause should be interpreted as broad enough to cover claims by and against non-parties, including because the wording of the clause was wide enough to embrace such claims. That interpretation also accorded with the commercial sense of the provision, as the parties would not reasonably have been understood to be agreeing that warranty claims against OE Waste, and any resulting contribution claims and defences under clause 10.3, should be resolved in different courts.
Accordingly, Butcher J found that there was a good arguable case that the contractual scope of clause 18.2 extended to the present dispute. On that basis the case fell within CPR 6.33(2B)(b), and also (though it did not matter) sub-rules (a) and (c).
Effect of the 1999 Act
In light of that conclusion, Butcher J did not need to decide whether the effect of the 1999 Act was to require a third party seeking to enforce a third party right under the SPA to do so in accordance with clause 18.2. However, as he had heard argument on the point, and in case he was wrong on the contractual scope issue, he stated his conclusions in relation to it.
The 1999 Act provides, at s.1(4), that it "does not confer a right on a third party to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract".
Mr Campeau submitted that s.1(4) meant that he was required to sue in accordance with clause 18.2, and therefore the SPA contained a term that the court would have jurisdiction to determine his claim, so that CPR 6.33(2B)(b) applied, or at least his claim was "in respect of" such a contract under sub-rule (c).
OE Waste argued that the 1999 Act was not intended to deal with jurisdiction agreements, as the Law Commission report it had implemented made clear, and that the Act was intended to confer only benefits and not burdens on third parties, so it would not mean a third party was deemed a party to an exclusive jurisdiction clause. There could be an exception if the contract made clear that any benefit was subject to a condition of compliance with the jurisdiction clause, but that would require clear words.
Butcher J preferred Mr Campeau's submissions. While the Law Commission's draft bill had provided that it did not confer rights on the third party in respect of a jurisdiction clause or arbitration agreement, those provisions were not included in the final version of the 1999 Act and s.1(4) was added to it. The question of whether a third party claim was subject to a jurisdiction (or arbitration) clause in the contract depended on whether that was a "relevant term of the contract" for the purposes of s.1(4). Butcher J considered that, if the clause was wide enough to apply to a dispute between the parties regarding to the term relevant to the third party's claim, then it would generally be a "relevant term" under s.1(4).
OE Waste pointed to s.8 of the 1999 Act, which provides that where a third party right under the Act is subject to a term providing for the submission of disputes to arbitration, the third party is treated as a party to the arbitration agreement. It argued that, since there is no equivalent provision for jurisdiction agreements, they were not intended to be covered by the 1999 Act. Butcher J rejected this argument, however, referring to Millen v Karen Millen Fashions Ltd [2016] EWHC 2104 (Ch), in which the judge explained that the purpose of s.8 was to enable a third party to enforce an arbitration agreement where it was required by s.1(4) to pursue any claim by way of arbitration. There was no need for an equivalent of s.8 in relation to jurisdiction clauses, because the enforcement of such clauses is not limited to parties to the agreement (as is the case for arbitration agreements).
In the present case, Butcher J concluded that clause 18.2 was a "relevant term" for the purposes of s.1(4) including because: clause 10.3 specifically conferred rights on Mr Campeau and stated that it was intended to create rights under the 1999 Act; there was no mention of any other jurisdiction where such rights should be enforced; the only jurisdiction clause was the one at clause 18.2 in favour of the English court; and its terms were wide enough to encompass a dispute between the parties as to rights under clause 10.3.
That did not prevent Mr Campeau from deploying clause 10.3 as an answer to proceedings brought against him elsewhere, as he had done in Luxembourg. While all disputes under clause 10.3 should be brought in England, if a party sued a third party elsewhere it had waived its right to insist on the application of clause 18.2.
Butcher J considered but disagreed with comments made by Foxton J in Werealize.com to the effect that jurisdiction clauses fall outside the 1999 Act. He noted that it was not clear to what extent the arguments put before him were put before Foxton J, or whether Karen Millen was cited to him. Butcher J considered that he should follow Karen Millen unless persuaded that it was wrong, which he was not.
Accordingly, Butcher J would also have found that CPR 6.33(2B) applied as a result of the application of the 1999 Act.
Right to enforce the jurisdiction clause
Butcher J noted that the question of whether Mr Campeau was entitled to enforce clause 18.2 by way of injunction was an issue which would properly arise only in the course of the proceedings, and it was not necessary or appropriate to address it at this stage.
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