Approved Judgment
Mr. Justice Cresswell :
Introduction
1 The facts set out in this Introduction have not been fully investigated
and are taken from the written evidence before the court as being those
which can be accepted for the purposes of the present applications only.
2 The claimant ("M.") resides in Jordan. In both actions, he seeks
damages in respect of the alleged non-performance of a written contract
he entered into on 6 November 1992 ("the 1992 Agreement").
3 The corporate defendants are companies in ”the Group":
(1) The holding company is "CC Holding", a company incorporated in
Lebanon.
(2) "CCIC" is a Lebanese company with its principal office in Greece.
(3)"CCUK" and "CC Oil & Gas" are group subsidiaries incorporated in
England and Lebanon respectively.
4 Mr. S. is a co-founder of the Group. He is President of CCIC and of CC
Holding. Mr. S is domiciled in Greece.
5 The 1992 Agreement relates to rights in an oil field in South Yemen,
known as the Ma. Block or Ma. Concession ("the Concession"). The
relevant oil interest -- a 10% interest in the Concession -- was initially
held by CCIC. It was agreed to be assigned to CC Oil & Gas by an
assignment dated 25 October 1992. The defendants contend that
CCIC still held the interest at the time of the 1992 Agreement because
the assignment had not then taken effect. Mr. M. contends that the
assignment was effective on 25 October 1992 so that by the time of the
November 1992 Agreement, the relevant interest had passed to CC Oil &
Gas. The interest is currently held by CC Oil & Gas.
6 The 1992 Agreement was signed by Mr. M. and Mr. K.. Mr. M. was
himself a party to the 1992 Agreement. The identity of the party on
whose behalf Mr. K. was acting when he signed the 1992 Agreement is in
dispute:
(1) The defendants say that the contracting party was CCIC.
(2) Mr. M. says that the contracting party was CCUK. In the alternative,
Mr. M. contends that the contracting party was CC Holding, or, in the
further alternative, CCIC, CC Oil & Gas or Mr. K..
7 In the First Action (2004 Folio 124), Mr. M. claimed against CCUK,
alternatively CC Holding. Mr. M. has discontinued the claim in the First
Action against CC Holding.
8 In the Second Action (2004 Folio 831), Mr. M. claims in the alternative
against Mr. K., CC Holding, CCIC and CC Oil & Gas.
9 CCUK applies for summary judgment in the First Action and for an order
that the claim against CCUK in the First Action be dismissed.
10 The defendants to the Second Action, who are all out of the
jurisdiction, submit that there is no justification for proceedings in
England, and each of these parties therefore contests the jurisdiction
of this court. Mr. K. and CCIC are both domiciled in Greece. Mr M.
served the claim form on them in Greece, without the permission of the
court, pursuant to Council Regulation (EC) No 44/2001 ("the Brussels
Regulation"). CC Holding and CC Oil & Gas are both incorporated in
Lebanon. Mr. M. obtained (without notice) permission to serve these
companies out of the jurisdiction pursuant to CPR 6.20.
11 In October 1985, Consolidated Contractors International Company
Limited ("CCIC Ltd"), a Liberian company which was a member of the
Group until its dissolution in March 1987, entered into a Memorandum
of Understanding ("the MoU") with C. O. P. Limited ("CanO.") (which is
now called Nexen), pursuant to which they agreed to associate in an
endeavour to obtain a mutually satisfactory agreement with the People's
Democratic Republic of Yemen permitting oil and gas operations in the Ma.
Block. Under the terms of the MoU, the parties agreed that CanO. would
have a 60% interest and that CCIC Ltd would have a 40% interest in any
contract area so obtained.
12 Between 1984 and 1986, CCIC acquired the assets of and liabilities
of CCIC Ltd, as part of a general group restructuring. CCIC Ltd was
subsequently dissolved on 6 March 1987.
13 On 15 September 1986, CanO., and CCIC entered into an Agreement
for Petroleum Exploration and Production in the Ma. Block with the
Ministry of Energy and Minerals of the People's Democratic Republic of
Yemen ("the PSA"), pursuant to which CanO. and CCIC were granted the
exclusive right to conduct petroleum operations in the Ma. Block during
the term of the PSA. The PSA became effective on 15 March 1987, when
the South Yemeni parliament ratified it.
14 It is Mr. M.'s case (which is disputed by the defendants) that he
assisted the Group to obtain this interest in the Concession, and that in
late 1985 and in compensation for his services Mr. S. (one of the other
founders of the Group) orally granted him an interest amounting to 25%
of the Group's 40% interest in the Concession.
15 On 6 April 1988, CanO. and CCIC entered into a Joint Operating
Agreement in respect of their interest in the Concession ("the JOA"), the
term of which was expressed to be coincident with the PSA. Under this
agreement, the parties again agreed that ownership of the Concession
would be split 60% to CanO. and 40% to CCIC.
16 Mr. M. alleges he had a further meeting with Mr. S. at CCUK's offices in
London, prior to which he was given a report on the status of the project
prepared by Mr. Br. and at which he and Mr. S. initialled a document dated
3 July 1991 recording that Mr. M.'s share of the Concession would be
1.5%.
17 Thereafter, CCIC farmed out 30% of its 40% interest in the Concession
to Pecten Yemen Company and Oxy Yemen respectively.
18 Mr Na. sent Mr. M. a statement of cash calls paid by CCIC in respect
of the Concession, requesting Mr. M. to transfer US$ 2,210,263.75 to
CCIC's account with the Ar. Bank in London. This sum represented 10%
of the total cash calls paid by CCIC from 30 April 1992 to 31 October
1992, plus interest. The letter was dated 24 October 1992, though Mr. M.
contends that he did not receive it prior to signing the 1992 Agreement on
6 November. The letter was on CCIC's headed paper, and was signed by
Mr. Na. as "Group Financial Controller Finance and Administration".
19 On 25 October 1992, Mr. K. (acting on behalf of CC Oil & Gas) signed
an Assignment Agreement and Deed of Assignment between CCIC and
CC Oil & Gas pursuant to which CCIC agreed to assign to CC Oil & Gas its
remaining 10% interest in the Concession. The defendants contend that
this assignment did not take effect until February 1993 at the earliest. Mr.
M. contends that it took effect immediately in accordance with its terms.
20 On 6 November 1992 Mr. M. met with Mr. K. at CCUK's offices in
London. At this meeting it was agreed that a memorandum should be
written recording the parties' agreement that he should receive a 1%
participation in the Concession. The 1992 Agreement was subsequently
prepared for Mr. K. by Mr. Br. of CCUK, typed onto CCUK headed
notepaper, and later on the same day was signed by both Mr. K. and Mr.
M., at a meeting that took place at Mr. K.'s house in London.
21 At the time he signed the 1992 Agreement, Mr. K. was a director
and authorized signatory of both CCIC and CC Oil & Gas. He was not
however (and has never been) a director or direct shareholder of CCUK.
The defendants contend that Mr. K. had no authority to contract on behalf
of CCUK. Mr. M. contends that he did not know that Mr. K. had not been
appointed a director or signatory of CCUK. Mr. M. also contends that Mr.
K. was clothed with such authority by CCUK despite any lack of formal
appointment.
The 1992 Agreement
22 The 1992 Agreement was in the following terms:--
"[Logo -- CCC] C. C. I. (UK) LTD
… LONDON
MEMORANDUM
TO: MR MUNIB M.
FROM: MR SAID K.
DATE: 6 NOVEMBER 1992
This is to define the principles of participation of Munib M. (M.) in CCC's
interest in the Ma. Block in Yemen.
Basic principle is for M. to receive 10% of CCC's 10% interest or a 1%
overall interest in the Block for M. subject to the following conditions,
payments and adjustments:
1. M. is to pay 10% of Ma. Block Development costs which are paid by
CCC.
2. M. is to pay 10% of Ma. Operating costs assessed to CCC.
3. ...
4. M. shall pay 10% of CCC's share of Bonus and Training payments
required under the Production Sharing Agreement (PSA). ...
In consideration for the payments and participation of M. as described
above, M. shall be entitled to the following when and if received by CCC.
(Based on actual net receipts by CCC, i.e. after payment of marketing and
other costs). A. 10% of CCC's share of Contractor oil entitlements under
the PSA.
B. 10% of Development Cost Recovery received by CCC.
For purpose of this agreement, the following priority shall be assigned to
funds available for cost recovery:--
1. Operating Expenses.
2. Exploration Expenses.
3. Development Expenses.
-----------------
---------------------
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT
DISPLAYABLE
Agreed and Accepted"
The Procedural History
23 On 18 February 2004 Claim No 2004 Folio 124 was issued (and served
on 16 June 2004).
24 On 9 June 2004 Mr. M. applied for permission to serve the Claim Form
and Particulars of Claim in Claim No 2004 Folio 124 on CC Holding at
CCUK's registered office in England and Wales.
25 On 11 June 2004 Mr Justice Morison granted permission to serve the
Claim Form and Particulars of Claim in Claim No 2004 Folio 124 on CC
Holding at CCUK's registered office in England and Wales.
26 On 28 July 2004 CCUK applied for summary judgment and CC Holding
applied to set aside service of the First Action.
27 On 8 October 2004 Claim No 2004 Folio 831 was issued (and served
on 18 October 2004).
28 On 14 October 2004 Mr. M. applied to serve the Claim Form and
Particulars of Claim on CC Holding and CC Oil & Gas in Lebanon.
29 On 19 October 2004 Mr Justice Moore-Bick granted permission to Mr.
M. to serve the Claim Form and Particulars of Claim on CC Holding and CC
Oil & Gas in Lebanon.
30 On 17 December 2004 the defendants in Claim No 2004 Folio 834
issued applications contesting the jurisdiction.
31 On 16 March 2005 notice of discontinuance against CC Holding in
Claim No 2004 Folio 124 was served.
The Applications
First Action
32 CCUK applies for summary judgment pursuant to CPR Part 24 on the
ground that CCUK was not a contracting party and, accordingly, Mr. M.
has no real prospect of succeeding on the claim against CCUK.
33 The issue that arises is whether there is a real prospect of Mr.
M. succeeding at trial in showing that CCUK was party to the 1992
Agreement.
Second Action
34 Mr K. and CCIC apply for orders under CPR Part 11 declaring that the
court has no jurisdiction over them; and that the service of the Claim
Form on them out of the jurisdiction be set aside.
The issues that arise are:
35 Whether Mr. M. is entitled under the Brussels Regulation to sue CCIC
or Mr. K. in England (it being common ground that Mr K. and CCIC
are domiciled in Greece). In particular, whether Mr M. can establish a
good arguable case that any of the exceptions (to the general principle
under Article 2 that defendants should be sued in the State of their
domicile) apply i.e.: under Article 5 of the Regulation, whether the place
of performance of the obligation in question under the 1992 Agreement
was England and Wales; and under Article 6 of the Regulation, whether
any of the other defendants are domiciled in England or Wales
36 Whether, in the case of Mr K., there is a cause of action with a
reasonable prospect of success.
37 CC Holding and CC Oil & Gas apply for orders under CPR Part 11
declaring that the court has no jurisdiction over them, that the order of Mr
Justice Moore Bick dated 19 October 2004 granting permission to serve
the Claim Form out of the jurisdiction on them be discharged and that
service of the Claim Form on them be set aside. It is common ground that
the 1992 Agreement was made within the jurisdiction (CPR r. 6.20 (5)
(a)).
38 The issues that arise are:
Whether there is any serious issue to be tried as between Mr. M. and CC
Holding and/or CC Oil & Gas; and
Whether Mr. M. is able to establish that England is clearly the appropriate
forum for the trial of any claim against them.
Evidence
39 There is a considerable volume of evidence before the court.
First Action
40 The evidence before the court is contained in witness statements (and
exhibits) from the following persons:--
41 On behalf of the defendants, Antoine Mat., Edward Gr. (first, second
and third), Yasser Bu., John Br., Said K. (first), Walid No. (second).
42 On behalf of the claimant, Munib M. (first) and Simon Mo. (first).
Second Action
43 The evidence before the court is contained in witness statements (and
exhibits) from the following persons:--
44 On behalf of the defendants, Walid No. (first), Jamal Na. (first),
Edward Gr. (fourth), Yasser Bu. (second).
45 On behalf of the claimant, Munib M. (second and third) and Simon Mo.
(second).
46 I refer to the procedural history set out above. It was not until the
fourth witness statement of Mr Edward Gr. dated 17 December 2004
that the defendants stated that "CCIC ... is the company that all the
defendants to the First and Second Actions accept was party to the
Agreement dated 6 November 1992."
The Application by CCUK in the First Action -- CPR Part 24
47 CCUK applies for summary judgment pursuant to CPR Part 24 on the
ground that CCUK was not a contracting party and, accordingly, Mr. M.
has no real prospect of succeeding on the claim against CCUK.
48 The issue that arises is whether there is a real prospect of Mr.
M. succeeding at trial in showing that CCUK was party to the 1992
Agreement.
CCUK's submissions
49 Mr Charles Aldous QC for CCUK submitted as follows.
52 It follows that CCUK is not a party to the contract since:
a) The interest in the Concession was not owned by CCUK at the time of
the 1992 Agreement and has never been owned by CCUK. CCUK was not
therefore able to transfer any share in the Concession to Mr. M.;
b) CCUK was not a party to the PSA at the time of the 1992 Agreement
(and never has been). CCUK was not the party making or receiving
payments under the PSA and was not therefore in the necessary position
to account to Mr. M.'s in respect of such sums;
c) From the outset the CC Group share of the Concession had been
owned by CCIC, which was the party to the PSA. Further, whilst by the
Assignment dated 25 October 1992, CCIC agreed to transfer the interest
(and its rights and obligations under the PSA) to CC Oil & Gas that
assignment could not, and did not, take effect until after written notice
thereof had been given to the Yemeni Ministry of Energy on 8 February
1993.
d) The documents relating to the Concession are replete with references
to CCC, in many cases in terms that define that abbreviation by
reference to CCIC (or its predecessor in title CCIC Ltd). Mr. M. was
contemporaneously in possession of at least some of these documents.
e) The abbreviation "CCC" is used in the 1992 Agreement to refer to
CCIC. Although the letterhead of CCUK does include the CC Group logo,
there is no evidence to suggest that the abbreviation "CCC" has ever been
used to refer solely to CCUK.
54 This principle does not, however, extend to evidence adduced by the
other contracting party as to its uncommunicated subjective belief or
understanding as to the identity of the party on whose behalf an agent
was acting: Shogun Finance Ltd v Hudson [2003] 3 WLR 1371 per Lord
Phillips at paras 123-125 and Lord Walker at para 183 and Chapman v
Smith [1907] 2 Ch 97, per Parker J at p 102. It is therefore irrelevant that
Mr. M. now suggests (a) that he did not know which member of the CC
Group held the interest in the Concession or was a party to the PSA at
the time of the 1992 Agreement and (b) that his intention was to contract
with CCUK.
55 Accordingly, CCUK submits that Mr. M. has no real prospect of
succeeding on the claim against CCUK. Since there is no other compelling
reason why the case should be disposed of at trial, it asks the Court to
give summary judgment and dismiss the claim against it.
Mr M.'s submissions
Mr Jonathan Sumption QC for Mr M. submitted as follows
…
62 Four points are made:
(1) The evidence of Mr. Mat., Mr. Br. and Mr. K. himself is limited to
denying that Mr. K. had express authority. But it is not necessary to
be a director nor for some formal act of express authorisation to have
occurred, in order that Mr. K. should have authority to commit the
relevant subsidiary. Authority may be express or implied. The question
is whether Mr. K. in fact had authority given the way that the CCC Group
was managed and his own position as its founder and principal controller.
(2) Mr. K. was not a stranger to CCUK. The mere fact that he signed
a document which was on its face a contract with CCUK and in
circumstances which suggested that it was a contract with CCUK, is
evidence that he was in position to commit CCUK. That is enough for the
purposes of a summary judgment application. The defendants' denial
merely underlines the fact that this is an issue for trial.
(3) Mr M.'s evidence provides material which is at least consistent with Mr
K. being a person who in the ordinary course of the Group's affairs was
entitled to commit CCUK. He says that directors of CCUK such as Mr. Br.
deferred to Mr K. in meetings with Mr M.; that Mr K. habitually used CCUK
offices for meetings about the Concession; and that he had an office of
his own at CCUK's premises which was much the most impressive office
there. Some of these points, particularly the last, are disputed, but Mr.
M. gives considered, circumstantial reasons for his view, and the issue
cannot be resolved summarily.
(4) If Mr K. did not have actual authority, express or implied, then he
was held out by CCUK as having authority to make the agreement on its
behalf. The facts known to both Mr. M. and CCUK strongly suggest that
he appeared to have authority whether that was actually the case or not,
and certainly show that the proposition will be fairly arguable at trial. In
particular Mr. Br., who was undoubtedly a director of CCUK, arranged for
a document to be drawn up for Mr. K. to sign, which was on its face a
contract with CCUK.
63 …
Analysis and conclusions
66 The court may give summary judgment against the claimant on the
whole of a claim or on a particular issue if it considers that the claimant
has no reasonable prospect of succeeding on the claim or issue and there
is no other compelling reason why the case or issue should be disposed of
at trial (CPR r. 24.2).
67 The test for a reasonable prospect of success was stated by Lord Hope
in Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16
at paragraph 95, [2003] 2 AC 1 at 261: --
"I would approach that further question in this way. The method by which
issues of fact are tried in our courts is well settled. After the normal
processes of discovery and interrogatories have been completed, the
parties are allowed to lead their evidence so that the trial judge can
determine where the truth lies in the light of that evidence. To that rule
there are some well-recognised exceptions. For example, it may be clear
as a matter of law at the outset that even if a party were to succeed in
proving all the facts that he offers to prove he will not be entitled to the
remedy that he seeks. In that event a trial of the facts would be a waste
of time and money, and it is proper that the action should be taken out
of court as soon as possible. In other cases it may be possible to say
with confidence before trial that the factual basis for the claim is fanciful
because it is entirely without substance. It may be clear beyond question
that the statement of facts is contradicted by all the documents or other
material on which it is based. The simpler the case the easier it is likely
to be to take that view and resort to what is properly called summary
judgment. But more complex cases are unlikely to be capable of being
resolved in that way without conducting a mini-trial on the documents
without discovery and without oral evidence. As Lord Woolf said in Swain
v Hillman, at p 95, that is not the object of the rule. It is designed to deal
with cases that are not fit for trial at all."
68 Reference to the extensive witness statements before the court and
the submissions presented to the court shows that CCUK has attempted
to conduct a mini-trial on the documents without disclosure and without
oral evidence. The estimate provided to the court in advance of the
hearing was 1 1/2 days for the hearing of all the defendants' applications
in the First and Second Actions. In the event Mr Aldous (in his able
argument) spent over a day opening CCUK's Part 24 application.
69 I raised with the parties at the outset of the application the possibility
of the court giving directions with a view to the early determination of a
preliminary issue as to the identity of the contracting party or parties to
the 1992 Agreement. Neither side was agreeable to this approach. In any
event the challenges to the jurisdiction in the Second Action would have
presented obvious difficulties.
70 The task of ascertaining the intention of the parties to a commercial
contract must be approached objectively. The question is not what one
or other of the parties meant or understood by the words used, but
"the meaning which the document would convey to a reasonable person
having all the background knowledge which would reasonably have been
available to the parties in the situation in which they were at the time
of the contract" Investors Compensation Scheme Ltd v West Bromwich
Building Society [1998] 1 WLR 896 at 912, Lord Hoffmann. The courts
will, in principle, look at all the circumstances surrounding the making
of the contract which would assist in determining how the language of
the document would have been understood by a reasonable man. As
to construction of contracts generally see Chitty on Contracts, General
Principles, Volume 1, 29th Edition at paragraph 12-041 and following.
71 I consider that Mr M. has a real prospect of succeeding at trial in
showing that CCUK was party to the 1992 Agreement. I also consider that
there are other compelling reasons why the issue should be disposed of at
trial. My reasons for these conclusions are as follows: --
1. There are a number of material disputes as to what constituted "the
background knowledge ... reasonably ... available to the parties ... at the
time of the contract". These include (without limitation): --
i) Disputes as to whether Mr M. had or had not prior to 6 November 1992
seen some of the thirty documents contained in Bundle 3A that predate 6
November 1992 (including, by way of example only, CCIC's letter to Mr M.
dated 24 October 1992).
ii) Disputes as to the nature and extent of the role of, and the commercial
activities of, CCUK and Mr Br. in relation to the Concession.
iii) Disputes as to the extent of Mr M.'s knowledge (if any) as to which
CCC Group companies held relevant interests in, or owed relevant
obligations in respect of, the Concession and in particular (but without
limitation) as to which entities were parties to the PSA and JOA.
iv) Disputes as to the extent of Mr M.'s knowledge (if any) of the structure
and internal arrangements and functions of companies in the CCC Group.
v) Disputes as to the authority (if any) of Mr K. to contract on behalf of
CCUK.
All these disputes are found in or reflected in the conflicting witness
statements.
2. This application has involved an attempt to conduct a mini-trial on the
documents without disclosure and without oral evidence (to the extent
that the same are appropriate). It is true that at issue is the construction
of an agreement extending to a single page, but there is a danger that
if the court proceeds to construe the 1992 Agreement without first
establishing "the background knowledge ... reasonably ... available to the
parties ... at the time of the contract", any resulting construction will be
or may be wrong.
3. The 1992 Agreement relates to rights in an oil field in South Yemen,
known as the Ma. Block or Ma. Concession. The relevant oil interest -- a
10% interest in the Concession -- was initially held by CCIC. CCIC agreed
to assign its interest to CC Oil & Gas by an Assignment Agreement and
a Deed of Assignment made on 25 October 1992. There is no suggestion
that Mr M. was told this prior to signing the 1992 Agreement. The
defendants contend that CCIC still held the interest at the time of the
1992 Agreement, because the assignment had not then taken effect. Mr.
M. contends that the assignment was effective immediately, so that by the
time of the 1992 Agreement the relevant interest had passed to CC Oil &
Gas. The interest is currently held by CC Oil & Gas. Mr K. had signed the
Assignment Agreement and the Deed of Assignment on behalf of CC Oil
& Gas as recently as 25 October 1992. The Deed of Assignment is by its
terms said to be effective as at 25 October 1992. Issues arise as to the
legal effect of the Assignment Agreement and the Deed of Assignment as
at 6 November 1992. There appears to have been no assignment of the
JOA, but disclosure may serve to clarify the position as to this. Mr Aldous
contended that the 1992 Agreement contained an implied term that "if
CCC (i.e. CCIC) assigns its interest under the PSA, it will procure that the
assignee assumes CCC's obligations under the Agreement". But there
are serious difficulties in relation to such an implied term (which was,
of course, contended for in the context of the defendants' submission
that the party to the 1992 Agreement was CCIC). On one view as at 6
November 1992 CCIC had already assigned its interest under the PSA to
CC Oil & Gas.
4. I consider that the claimant has a real prospect of succeeding at trial
in showing that (a) the 1992 Agreement was between Mr M. and CCUK,
or alternatively (b) between Mr M. and the CCC Group (which would
include for present purposes all corporate defendants in both actions,
including CCUK). The true construction of the Agreement must, in my
opinion, await a trial at which the background knowledge available to
the parties will be clearly established. A different conclusion as to the
contracting party or parties may result from a trial. I emphasise that
this is an interlocutory application. But I draw attention to the following
matters. The 1992 Agreement is a short business agreement signed by
international businessmen (without the assistance of City solicitors).
The Agreement is typed on CCUK notepaper which contains (in the top
left hand corner) a logo containing three 'C's. It may be necessary to
examine at trial the extent of the use of the logo, but it appears from
the material before the court that the logo was used on the notepaper of
CCC Group companies at the material time. I consider that the claimant
has a real prospect of succeeding at trial in showing that the Agreement
was between Mr M. and CCUK because CCUK's name appears at the head
of the document containing the Agreement (and no other company is
mentioned by name). I also consider that in the alternative the claimant
has a real prospect of succeeding at trial in showing that the Agreement
was between Mr M. and the CCC Group (which would include for present
purposes all corporate defendants in both actions, including CCUK),
because in considering what was intended by "CCC" in the body of the
Agreement regard may be had to the logo containing three 'C's, which
in context is either CCUK's logo or the Group's logo. Although I again
emphasise that I am concerned with an interlocutory application (and
not a trial), a possible conclusion at trial would be that Mr K. and Mr M.
were not concerned to identify any particular company in the CCC Group
as the contracting party, the obligations to Mr M. under the Agreement
being regarded as Group obligations. The two businessmen concerned
may not have concerned themselves with the niceties of differences
between different companies in the CCC Group. They may have regarded
the obligations created as those of the CCC Group (without any need to
identify a particular contracting party in the Group). This approach would
avoid any difficulties occasioned by the fact that Mr K. had only recently
signed the Assignment Agreement and Deed of Assignment from CCIC to
CC Oil & Gas.
The applications in the Second Action for orders under CPR Part 11
declaring that the court has no jurisdiction over the defendants
Mr K. and CCIC
72 Mr K. and CCIC apply for orders under CPR Part 11 declaring that the
court has no jurisdiction over them and that the service of the Claim Form
on them out of the jurisdiction be set aside.
The Brussels Regulation -- the relevant legal principles
73 The 'special jurisdictions' in Articles 5 and 6 of the Brussels Regulation
constitute derogations from the principle in Article 2 that jurisdiction is
vested in the courts of the state where the defendant is domiciled and as
such must be interpreted restrictively.
74 Where the Brussels Regulation applies, the court has jurisdiction in
matters relating to a contract, if England is the place of performance
of the obligation in question. Article 5 (1) of the Brussels Regulation
is the basic rule for contract claims against a defendant domiciled in
another Regulation State. The Brussels Regulation makes provision for
an autonomous definition of the place of performance of the obligation
in the case of sale of goods and the provision of services. In other
types of contract the basic rule in Article 5 (1) (a) applies ("the place
of performance of the obligation in question"). Subject to the special
provision for contracts for sale of goods and supply of services in the
Regulation, "the obligation in question" whose place of performance must
be in England is the obligation which is the basis of the action. Once the
relevant contractual obligation has been determined, the next question
is which system of law determines where it is to be performed? It is
common ground in the present case that this question is governed by
English law.
75 Article 6 (1) of the Brussels Regulation provides that a person
domiciled in a Regulation State may also be sued, where he is one of
a number of defendants, in the courts for the place where one of them
is domiciled. Although this head of jurisdiction fulfils a function similar
to the "necessary or proper party" provisions of CPR r. 6.20 (3), it is
narrower in scope than the latter. It was adopted in order to prevent
the handing down in the Contracting States of judgments which are
irreconcilable with one another. There must be a connection between
the claims made against each of the defendants, and the nature of that
connection is to be given a uniform interpretation. Article 6 (1) applies
where the proceedings brought against the various defendants are related
when the proceedings are instituted i.e. where it is expedient to hear
and determine them together in order to avoid the risk of irreconcilable
judgments resulting from separate proceedings. The effect of the decision
in Kalfelis v Schroder [1988] ECR 5565 has been codified in the Brussels
Regulation in the words "provided the claims are so closely connected
that it is expedient to hear and determine them together to avoid the risk
of irreconcilable judgments resulting from separate proceedings". Under
English law the claimant has to show that there is a real issue that the
court may reasonably be asked to try as to the liability of the additional
defendant domiciled in England.
76 The claimant has to satisfy the court of two matters: (i) that the case
falls within Article 5 (1) or 6 (1) and (ii) that it has a cause of action
against the particular defendant with a reasonable prospect of success.
77 As to (i) the claimant must show that he has a good arguable case that
the court has jurisdiction under Article 5 (1) or 6 (1). The "good arguable
case" test becomes of most significance at the inter partes stage where
two arguments are being weighed in the interlocutory context which
must not become a "trial." "Good arguable case" reflects in this context
that one side has a much better argument on the material available. The
court must be satisfied or as satisfied as it can be having regard to the
limitations which an interlocutory process imposes, that factors exist
which allow the court to take jurisdiction. (Waller LJ in Canada Trust Co v
Stolzenburg (No 2) [1998] 1 WLR 547 at 555 approved at [2002] 1 AC 1
at 13, Lord Steyn).
78 As to (ii), the standard of proof in respect of the cause of action is
whether, on the evidence, there is a reasonable prospect of success (CPR
r. 6.21 (1) (b))/ a serious question to be tried/ a substantial question of
fact or law, or both, which the claimant bona fide desires to have tried.
See further paragraph 116 below.
Mr K.'s and CCIC's submissions
81 Mr K. and CCIC are domiciled in Greece, where they were served with
the claim form in the Second Action pursuant to CPR 6.19. Accordingly,
the prima facie rule under the Brussels Regulation is that they must be
sued in Greece.
82 As to Article 5 (1) of the Brussels Regulation the "obligation in
question" is the obligation upon which the claim is founded. Jurisdiction
can accordingly be assumed by the courts in the place where the payment
claimed should have been made to Mr M.. The identification of this place
is a matter of English law. Mr M. must show a good arguable case that
CCIC (or Mr K. if he was a party to the 1992 Agreement) had to pay
Mr M. any sums falling due under the 1992 Agreement in England. The
defendants accept that where no place of payment is specified in a
contract, as a matter of English law, the general rule is that the debtor
must seek out his creditor. This is only a general rule, which must readily
give way where a consideration of all the circumstances indicates that an
alternative place is more appropriate. Having regard to the surrounding
circumstances and in particular the course of dealing between Mr M. and
CCIC, England was not the place of payment of any sums due under the
1992 Agreement to Mr M., or at the very least Mr M. has not established
the necessary good arguable case to the contrary. Thus the Article 5 (1)
exception does not apply in this case.
83 As to Article 6 (1) none of the defendants in the Second Action
are domiciled in England and Wales. Mr K. and CCIC are domiciled in
Greece and CC Holding and CC Oil & Gas are domiciled in Lebanon.
Although CCUK (the first defendant to the First Action) is domiciled in
England, the language of Article 6 (1) as well as the general scheme of
Articles 6 (1) to 6 (3) demonstrate that the reference to "a number of
defendants" is a reference to the defendants to the particular action in
which the Article 6 (1) exception is sought to be invoked. The application
or otherwise of the jurisdictional rules contained in Article 6 (1) is to be
judged at the time of issue of the proceedings in question and not at
any other time, and cannot depend on the subsequent application by the
court of a discretionary rule of procedure. The existence of a separate
action in which one of the defendants is domiciled in England and Wales
accordingly does not provide a sufficient basis for Article 6 (1) to apply.
84 Accordingly Mr K. and CCIC submit that since neither of the exceptions
provided for by Articles 5 and 6 of the Regulation apply, Article 2 requires
that they be sued in Greece.
85 In addition, Mr K. contends the claimant has not established the
necessary good arguable case that Mr K. is personally liable under
the 1992 Agreement, such that the court can exercise jurisdiction
under Article 5 (1). Mr K. signed the contract as an agent for the entity
described as "CCC". Mr M. has failed to show the necessary good arguable
case that Mr K. is an appropriate defendant.
Mr M.'s submissions
Mr Sumption QC for Mr M. submitted as follows
86 As to Article 5 (1) it is common ground that the obligation in question
is the payment of money to Mr M. and that English law applies to the
question of the place of performance. The general rule is that the debtor
must follow his creditor. In the absence of express provision to some
different effect, an obligation to pay money falls to be performed where
the debtor ordinarily resides. Mr M. was ordinarily resident in England at
the time of the 1992 Agreement. The fact that Mr M. no longer lives in
London is irrelevant as it can have no effect on the construction of the
1992 Agreement including the obligations of payment: The Eider [1893] P
119, 131 (Lord Esher).
87 As to Article 6 (1) the reference by the European Court of Justice in
Kalfelis v Schroder "to the various actions brought by the same plaintiff
against different defendants" is directly inconsistent with the defendants'
submission that Article 6 (1) applies only within a single action. The
reasoning of the ECJ made it clear that the purpose of Article 6 (1) was to
prevent the risk of irreconcilable judgments and that it did so by Article 6
(1) being the "flipside" of Article 22, which permits a second seized court,
seized of the same dispute, to stay proceedings where there is such a
risk. Article 22 inherently involves a situation with more than one action.
There is no basis for restricting Article 6 (1) to a single action.
88 As to Mr K., the pleaded case (in the alternative) is that he made
the 1992 Agreement as principal. Mr K. is liable on two bases. First, if a
contract is signed by an agent in his own name without qualification, he is
deemed to have contracted personally unless a contrary intention plainly
appears from other portions of the document. (Bowstead & Reynolds on
Agency 17th Edition, Article 101 page 483). Secondly Mr K. purported to
enter into a contract on behalf of CCUK, but CCUK say he had no express
or implied authority to do so. If CCUK are right as to this, he would be
liable for breach of warranty of authority.
Analysis and conclusions
Article 6 (1)
89 It is convenient to consider Article 6 (1) of the Brussels Regulation
first.
I repeat paragraphs 75 and 76 to 78 above.
90 Article 6 (1) of the Regulation provides: --
"A person domiciled in a Member State may also be sued:
1. where he is one of a number of defendants, in the courts for the place
where any one of them is domiciled, provided the claims are so closely
connected that it is expedient to hear and determine them together
to avoid the risk of irreconcilable judgments resulting from separate
proceedings".
Although this head of jurisdiction fulfils a function similar to the
"necessary or proper party" provisions of CPR r. 6.20 (3) it is narrower
in scope than the latter. It was adopted in order to prevent the handing
down in the Contracting States of judgments which are irreconcilable
with one another. There must be a connection between the claims made
against each of the defendants, and the nature of that connection is
to be given a uniform interpretation. Article 6 (1) applies where the
proceedings brought against the various defendants are related when the
proceedings are instituted i.e. where it is expedient to hear and determine
them together in order to avoid the risk of irreconcilable judgments
resulting from separate proceedings. The effect of the decision in Kalfelis
v Schroder has been codified in the Brussels Regulation in the words
"provided the claims are so closely connected that it is expedient to hear
and determine them together to avoid the risk of irreconcilable judgments
resulting from separate proceedings". Under English law the claimant has
to show that there is a real issue that the court may reasonably be asked
to try as to the liability of the additional defendant domiciled in England."
91 In Kalfelis v Schroder the ECJ said: --
"... It must be noted that the ... report prepared by the committee of
experts referred expressly, in its explanation of Article 6 (1), to the
concern to avoid the risk in the Contracting States of judgments which
are incompatible with each other. Furthermore, account was taken of that
preoccupation in the Convention itself, Article 22 of which governs cases
of related actions brought before courts in different Contracting States.
The rule laid down in Article 6 (1) therefore applies where the actions
brought against the various defendants are related when the proceedings
are instituted, that is to say where it is expedient to hear and determine
them together in order to avoid the risk of irreconcilable judgments
resulting from separate proceedings. It is for the national court to verify
in each individual case whether that condition is satisfied." (emphasis
added)
92 I reject the defendants' submission that the existence of the First
Action (in which the remaining defendant CCUK is domiciled in England
and Wales) does not provide a sufficient basis for Article 6 (1) to apply.
93 By Article 6 (1) a person domiciled in a Member State may also be
sued elsewhere if two conditions are satisfied: --
i) where he is one of a number of defendants, in the courts for the place
where any one of them is domiciled, provided
ii) the claims are so closely connected that it is expedient to hear and
determine them together to avoid the risk of irreconcilable judgments
resulting from separate proceedings.
94 Article 6 (1) is not concerned with the domestic procedural rules of the
courts of particular Member States. There must be a connection between
the claims made against each of the defendants, and the nature of that
connection is to be given a uniform interpretation. The correct approach
is not to look to English procedural rules, but to ask the question whether
the two conditions in Article 6 (1) are satisfied? The reference in condition
i) is to the same court, not the same action. The defendants' submission
is contrary to the express terms of the decision of the ECJ in Kalfelis v
Schroder. Further it seeks to add an additional condition which is not
present in the Article. Article 6 (1) is to be applied consistently throughout
all Member States with their very different domestic procedural rules.
95 Where there is a good arguable case as to whether A and/or B and/or
C and/or D and/or E and/or F are party to a contract, there is obviously
a risk of irreconcilable judgments resulting from separate proceedings in
different Member States. Article 6 (1) was adopted in order to prevent
this happening. It is plainly expedient to hear and determine such a case
in one jurisdiction. The demands of justice are met by one answer in
one jurisdiction. If this approach is adopted there is no scope for the
parties to advance inconsistent contentions in different jurisdictions or
for different tribunals to reach inconsistent conclusions on the same or
differing materials and evidence.
The defendants (realistically) did not contend that the claims are not
so closely connected that it is expedient to hear and determine them
together to avoid the risk of irreconcilable judgments resulting from
separate proceedings.
96 Good arguable case is a concept with some degree of flexibility
depending upon the issue. Such flexibility extends to cases where
alternative claims are advanced.
97 As to CCIC I repeat my analysis set out above including in particular
paragraph 71 (4) above. Further CCIC is the company which the
defendants say was party to the 1992 Agreement. In my opinion there
is a good arguable (alternative) claim against Mr K. on both of the bases
advanced by the claimant. Further I understood Mr Aldous to concede at
the end of his submissions that (a) if the court dismissed the application
in the First Action (so that the proceedings against CCUK continued) and
(b) if his main argument (set out in the final sentence of paragraph 83
above) did not succeed, the claimant was entitled to join Mr K..
98 For these reasons (1) I consider that the claimant has made out a
good arguable case that the court has jurisdiction under Article 6 (1) in
relation to Mr K. and CCIC. Further (2) as to a cause of action against
Mr K. and CCIC, to the extent that this is not covered by (1) above, I
consider that the claimant has established on the evidence that there is in
each case a reasonable prospect of success/a serious question to be tried/
a substantial question of fact or law, or both, which the claimant bona fide
desires to have tried.
Article 5 (1)
I turn to consider Article 5 (1). It is of course sufficient for the claimant to
establish jurisdiction under Article 6 (1). However I consider Article 5 (1)
for completeness (and in case I am wrong as to Article 6 (1)).
I repeat paragraphs 74 and 76 to 78 above.
99 Article 5 (1) provides that "a person domiciled in a Member State may,
in another Member State be sued: (a) in matters relating to a contract, in
the courts for the performance of the obligation in question. ..." Subject
to the special provision for contracts for sale of goods and supply of
services (which have no application in the present case), "the obligation
in question" whose place of performance must be in England is the
obligation which is the basis of the action. The relevant contractual
obligation is to make payments to Mr M. under the 1992 Agreement. It
is necessary to consider as a matter of English law where that obligation
was to be performed.
100 I consider that the claimant has made out a good arguable case that
the court has jurisdiction under Article 5 (1) against Mr K. and CCIC for
the following reasons. In The Eider supra Lord Esher MR said at page 131:
--
"What, then, is the ordinary rule? That the debtor must follow his creditor,
and must pay where his creditor is. If there were a contract made in
England, by two people who were at the time in England, and payment
was to be made in England, nevertheless, if the creditor went abroad and
was abroad at the time payment was to be made, the debtor need not go
after his creditor to pay him abroad; he may wait until his creditor comes
back to England."
101 In my opinion the relevant principles of law are accurately set out in
Benjamin's Sale of Goods 6th Edition paragraph 9-046 as follows:--
"... Where no place of payment is specified, the place of payment depends
upon the intention of the parties to be gathered from the terms of the
contract and the position of the parties and circumstances prevailing
at the time it was entered into. In many cases the mode of payment
prescribed will therefore determine where payment is to be made. If no
place of payment can thus be implied, it is being said to be a general
rule that "the debtor must follow his creditor and must pay wherever his
creditor is." In commercial transactions, however, the general rule would
seem to be that payment is to be made at the place where the creditor
resided or carried on business at the time of the contract, ..."
102 The relevant time for determining the place of payment is the
time when the contract was made. It is elementary that there is a
need for certainty as to place of payment in commercial contracts.
I do not consider that the evidence before the court establishes any
relevant course of dealing between the CCC Group and Mr M.. No mode
of payment is prescribed in the 1992 Agreement. In my opinion there
is a good arguable case that the default rule -- that payment is to be
made at the place where Mr M. resided at the time of the contract (i.e. in
England), applies.
103 I have not overlooked the fact that the passage in Benjamin
continues: --
"If, after the conclusion of the contract, the seller changes his place
of business or his residence, the question whether or not the place of
payment is thereby changed should, it is submitted, depend upon a
reasonable inference to be drawn from all the circumstances surrounding
the formation and performance of the contract of sale."
104 The default rule provides for certainty as to place of payment. I am
not persuaded on the material before the court that there is any basis
for displacing the default rule in the present case. In any event there is a
good arguable case that the default rule applies in this case.
105 See further the Legal Aspect of Money by Dr. F A Mann QC 5th Edition
at page 81: --
"The place of payment is very often fixed by the parties, either expressly
or impliedly. But in the absence of such determination the general rule
in this country as well as the United States, Switzerland, Holland, Italy,
Greece and Hungary is that the place of payment is the place where the
creditor resides or carries on business at the time of the contract."
106 As to CCIC I repeat my analysis set out above including in particular
paragraph 71 (4) above. Further CCIC is the company which the
defendants say was party to the 1992 Agreement. In my opinion there
is a good arguable (alternative) claim against Mr K. on both of the bases
advanced by the claimant.
107 For these reasons (1) I consider that the claimant has also made out
a good arguable case that the court has jurisdiction under Article 5 (1)
in relation to Mr K. and CCIC. Further (2) as to a cause of action against
Mr K. and CCIC, to the extent that this is not covered by (1) above, I
consider that the claimant has established on the evidence that there is in
each case a reasonable prospect of success/a serious question to be tried/
a substantial question of fact or law, or both, which the claimant bona fide
desires to have tried.
108 Accordingly the applications by Mr K. and CCIC fail.
CC Holding and CC Oil & Gas
109 CC Holding and CC (Oil & Gas) apply for orders under CPR Part 11
declaring that the court has no jurisdiction over them, that the Order
of Mr Justice Moore Bick dated 19 October 2004 granting permission to
serve the Claim Form out of the jurisdiction on them be discharged and
that service of the Claim Form on them be set aside. It is common ground
that the 1992 Agreement was made within the jurisdiction (CPR r. 6.20
(5) (a)).
Service out of the jurisdiction pursuant to CPR 6.20 -- the relevant legal
principles
110 The High Court has jurisdiction to entertain a claim in personam
against a defendant (other than a person domiciled in another state to
which the Brussels Regulation applies) who is not in England when it
assumes jurisdiction in any of the cases mentioned in CPR r.6.20.
111 Four important points have been emphasised in the decided cases:
(1) The court ought to be cautious in allowing process to be served on a
foreigner out of England.
(2) If there is any doubt in the construction of any of the heads of CPR r.
6.20, that doubt ought to be resolved in favour of the defendant.
(3) Since the application for permission is made without notice to the
defendant, a full and fair disclosure of all relevant factors ought to be
made.
(4) The court will refuse permission if the case is within the letter, but
outside the spirit, of CPR r. 6.20.
112 The claimant must show that the case falls within one of the heads
of jurisdiction in CPR r. 6.20 and that he has a cause of action against the
defendant.
113 In exercising its jurisdiction the court will consider, inter alia,
whether England is the forum conveniens. The claimant must show good
reasons why service on a foreign defendant should be permitted, and
in considering this question the court must take into account the nature
of the dispute, the legal and practical issues involved, such questions
as local knowledge, availability of witnesses and their evidence, and
expense. The fundamental question is to identify the forum in which the
case can suitably be tried for the interests of all the parties and for the
ends of justice. To justify the exercise of the discretion, the claimant has
to show that England is clearly the appropriate forum for the trial of the
action.
114 Thus the claimant has to satisfy the court of three matters: (i) that
the case falls within one of the heads of CPR Rule 6.20; (ii) that it has
a cause of action against the defendant "with a reasonable prospect of
success" (CPR Rule 6.21 (1) (b)); and (iii) that England is the appropriate
forum.
115 As to (i), the standard to be applied when deciding whether the
jurisdiction of the court has been sufficiently established under one or
more of the heads of CPR Rule 6.20 is that of good arguable case, which
is a concept with some degree of flexibility depending upon the issue:
Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547, at 558, per
Waller LJ, approved [2002] 1 AC 1, at 13, per Lord Steyn. See further
paragraph 77 above.
116 As to (ii), it was held in Seaconsar Far East Ltd v Bank Markazi
Iran [1994] 1 AC 438 that the standard of proof which the claimant
must satisfy in showing that he has a cause of action is whether, on
the evidence, there is a serious question to be tried, i.e. a substantial
question of fact or law, or both, which the claimant bona fide desires to
have tried. It has been held that the effect of the test under CPR Rule
6.21 (1)(b) of a "reasonable prospect of success" is the same as that in
Seaconsar (Opthalmic Innovations International (UK) Ltd v Opthalmic
Innovations International Inc [2004] EWHC 2948 (Ch), para 39) or in
substance the same as the test used to determine whether a claimant has
a "real prospect of succeeding" for the purposes of summary judgment
under CPR Part 24 (De Molestina v Ponton [2002] 1 Lloyd's Rep 271;
Swiss Reinsurance v United India [2002] EWHC 741 (Comm)).
117 Thus the standard of proof in respect of the cause of action is
whether, on the evidence, there is a reasonable prospect of success (CPR
r. 6.21 (1) (b))/a serious question to be tried/a substantial question of
fact or law, or both, which the claimant bona fide desires to have tried.
118 As to (iii), which goes to the discretion of the court, the claimant
must show good reason why service on a foreign defendant should be
permitted: Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984]
AC 50, 65-66, 72; Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460:
"The effect is, not merely that the burden of proof rests on the [claimant]
to persuade the court that England is the appropriate forum for the trial
of the action, but that he has to show that this is clearly so": at 481,
per Lord Goff of Chieveley. CPR r. 6.21 (2A) provides that the court will
not give permission unless satisfied that England is the proper place in
which to bring the claim. This provision imposes on the claimant the
burden of showing good reason why service should in the circumstances
be permitted on a foreign defendant.
The submissions of CC Holding and CC Oil & Gas
Mr Aldous QC for CC Holding and CC Oil & Gas submitted as follows
119 The claim that Mr K. was acting as the agent of CC Holding when
entering into the 1992 Agreement is inconsistent with the terms of the
1992 Agreement, with Mr K.'s evidence and with Mr M.'s own case as
to the identity of the other contracting parties. Mr M. has discontinued
against CC Holding in the First Action because of the difficulty of
establishing that CCUK was acting as agent of CC Holding for the
purposes of service under CPR 6.16.
120 CC Oil & Gas was included as a defendant in the Second Action, at
a time when Mr M. was aware that the defendants would say that the
1992 Agreement was made with the party which actually held the interest
in the Concession and moreover that that interest had been held by
CCIC and transferred to CC Oil & Gas, but when Mr M. was unaware that
transfer had taken place. The defendants' position is that at the time of
the 1992 Agreement, the interest was held by CCIC and not by CC Oil &
Gas. It follows that at the time of the 1992 Agreement, CC Oil & Gas did
not fall within the description "CCC". As a matter of construction of the
1992 Agreement CC Oil & Gas was not intended to be a party to it.
121 There is no serious issue to be tried as between Mr M. and CC Holding
and CC Oil & Gas.
122 In any event England is not clearly the appropriate forum.
Mr M.'s submissions
Mr Sumption QC for Mr M. submitted as follows
123 CC Holding is the top company in the group. It is a company on
behalf of whom Mr K. undoubtedly had authority to sign. If any company
is truly described as 'CCC' it is CC Holding. If Mr M.'s primary case (that
the contracting company was CCUK) is wrong, but some other company
was involved, then CC Holding is the most likely alternative party.
124 On the defendants' case the Agreement was made with the company
which held the Concession at the date of the Agreement. The defendants
say that this was CCIC, but having regard to the terms of the Assignment
Agreement/Deed of Assignment this might well have been CC Oil & Gas.
125 England is the most appropriate forum for the trial of the claims
against CC Holding and CC Oil & Gas.
Analysis and conclusions
126 In making the application for permission to serve the claim form out
of the jurisdiction the claimant relied on CPR Rules 6.20 (3) (necessary
or proper party), 6.20 (5) (a) (contract made within the jurisdiction),
6.20 (5) (c) (contract governed by English law) and 6.20 (6) (breach
of contract committed within the jurisdiction). It is of course common
ground that the 1992 Agreement was made within the jurisdiction.
127 The standard to be applied when deciding whether the jurisdiction
of the court has been sufficiently established under one or more of the
heads of CPR Rule 6.20 is that of good arguable case, which is a concept
with some degree of flexibility depending upon the issue. I am so satisfied
in the case of CC Holding and CC Oil & Gas. I repeat my analysis set out
above including in particular paragraph 71 (4) above.
128 As to a cause of action against CC Holding and CC Oil & Gas, to the
extent that this is not covered by paragraph 127 above, I am satisfied
on the evidence that there is a reasonable prospect of success/ a serious
question to be tried/a substantial question of fact or law, or both which
the claimant bona fide desires to have tried.
129 In the light of my conclusions as to the claim against CCUK in the
First Action and the challenges to the jurisdiction by CCIC and Mr K. in the
Second Action, it is clear that England is the appropriate place to bring
the claims against CC Holding and CC Oil & Gas. If the former claims are
to proceed in England, England is the appropriate forum to try the latter
claims.
130 For these reasons the applications of CC Holding and CC Oil & Gas
fail.