Neutral Citation Number: [2017] EWCA Civ 160 9 
  Case No: A3/2017/029 0 
IN THE COURT OF APPEAL (CIVIL DIVISION)  
ON APPEAL FROM THE HIGH COURT OF JUSTICE  
CHANCERY DIVISION  
The Hon Mrs Justice Asplin DB E 
[2016] EWHC 3358 (Ch )  
  Royal Courts of Justice  
Strand, London, WC2A 2L L 
  18/10/201 7 
B e f o r e :  
LORD JUSTICE FLOYD  
and 
LORD JUSTICE FLAU X 
____________________  
Between:  
 
 KOZA LIMITED  
HAMDI AKIN IPEK  Claimants/  
Respondents  
 - and -  
 MUSTAFA AKCIL  
HAYRULLAH DAGISTAN  
MAHMUT HIKMET KELES  
HAMZA YANIK  
ARIF YALCIN  
KOZA ALTIN ISLETMELERI AS   
 
 
 
Defendants/  
Appellants  
____________________  
Jonathan Crow QC and David Caplan (instructed by Mishcon de Reya LLP) for 
the Appellants  
Richard Morgan QC, Siward Atkins and Thomas Munby (instructed by Gibson 
Dunn & Crutcher LLP) for the Respondents  
Hearing dates: 13 -14 September 2017   
____________________  
HTML VERSION OF JUDGMENT
 
____________________  
Crown Copyright ©  
Lord Justice Floyd:   
1. This is an application for permission to appeal and, if permission is granted,  an 
appeal, from a decision of Asplin J (as she then was) dated 21 December 2016, 
and her consequent order. It arises in a dispute between rival parties over the 
management and control of the first claimant, Koza Limited. The principal 
issue concerns the a pplication of article 24(2) of Regulation (EU) No 
1215/2012 on jurisdiction and the recognition and enforcement of judgments 
in civil and commercial matters ("the recast Judgements Regulation") to the 
present proceedings.  
2. The second claimant, Mr Ipek, is a director of Koza Limited and a member of 
the family which owns the corporate group to which Koza Limited belongs 
("the Koza Group"). The Koza Group is a large Turkish -based mining and 
media conglomerate. Koza Altin Isletmeleri AS ("Koza Altin"), the sixt h 
defendant, is a member of the Koza Group and Koza Limited is its wholly -
owned subsidiary.  
3. Following a police raid of the Koza Group's headquarters in Ankara in 
September 2015, allegations were made by the Turkish authorities that the 
Koza Group was invo lved in the financing of terrorism. On 26 October 2015, 
an Ankara Criminal Peace Judge made an order under article 133(1) of the 
Turkish Criminal Procedure Code replacing the then existing boards of various 
companies within the Koza Group (including Koza A ltin) with trustees who 
were required to manage those companies pending further investigations. An 
appeal from that decision was rejected on 12 November 2015 and a further 
appeal dated 18 November 2015 was lodged with the Constitutional Court but 
has not b een dealt with. Pursuant to two further decisions of the Turkish 
Criminal Peace Court dated 13 January and 3 March 2016, the first to fifth 
defendants were appointed trustees of Koza Altin.  
4. On 19 July 2016 a notice under section 303 of the Companies Act 2 006 ("the 
section 303 notice") was purportedly served on behalf of Koza Altin 
requisitioning a general meeting of Koza Limited to pass resolutions replacing 
its directors (including Mr Ipek) with the first, second and third defendants. 
Koza Limited did not  call such a meeting. Thus, following the statutory 
procedure, on 10 August 2016 a further notice under section 305 of the 2006 
Act was purportedly served on behalf of Koza Altin, calling for a general 
meeting of Koza Limited for the purpose of passing tho se resolutions ("the 
section 305 notice").  
5. Article 26 of Koza Limited's articles of association provides:  
"26.1 Each shareholder shall exercise all voting rights and powers of control 
available to him in relation to the Company to procure that, save with A 
shareholder consent, the Company shall not effect any of the following 
matters:  
(a) Permit or cause to be proposed any amendment to the Articles;  
(b) Permit the appointment or removal of any person as a director of the 
Company; or  
(c) …  
26.2 As a separate obligation, severable from the obligations in clause 26.1, 
the Company agrees that, save with A Shareholder Consent, the Company 
shall not effect any of the matters referred to in subparagraphs (a) to (c) of 
Article 26.1 above."  
6. Article 2.1 defines "A Shareholder Consent" as meaning "the prior, signed 
written consent of each A Shareholder". The two A shareholders were Mr Ipek 
and his brother, each of whom held one A share. It is the claimants' case that 
at least Mr Ipek did not and  would not consent to the resolutions.  
7. On 16 August 2016 the claimants commenced these proceedings seeking (i) 
declarations that the section 303 and section 305 notices were ineffective, (ii) 
an injunction preventing the defendants or any of them from hol ding any 
meeting of Koza Limited pursuant to those notices, (iii) an injunction to 
restrain the first five defendants or any of them from holding themselves out 
as having the authority to act for or to bind Koza Altin as a shareholder of 
Koza Limited and f rom causing Koza Altin to do anything or permit the doing 
of anything as a shareholder of Koza Limited. This relief was stated to be 
sought on two grounds. The first ground was that by article 26 of Koza 
Limited's articles of association, the resolutions t o which the notices related 
could not be passed without the consent of Mr Ipek as an A shareholder and he 
did not consent. The second ground was that the court should not recognise 
any authority of the first five defendants to cause Koza Altin to serve the  
notices or any further notices or to take any other step as a shareholder of 
Koza Limited because such authority was granted (i) illegally under Turkish 
law, (ii) on an interim basis only, and (iii) granted in breach of natural justice 
and/or article 6 EC HR. Further, it would be contrary to public policy to do 
recognise the grant of such authority. These two grounds for seeking the relief 
claimed have been referred to in these proceedings as "the English company 
law claim" and "the authority claim".  
8. The b asis of the authority claim, as it has been called, is expanded in the 
Particulars of Claim at paragraphs 5 -30. Paragraph 5 of the pleading asserts 
that the English courts should not recognise any authority of the Trustees to 
cause Koza Altin to call any g eneral meetings of the company or to do or 
permit the doing of anything else as a shareholder of the company. It is said by 
the claimants that the appointment of the Trustees was unlawful as a matter of 
Turkish law and that there is no way in practice of r edressing this through an 
appeal; that the judicial process by which the Trustees were appointed was 
contrary to natural justice and to article 6 ECHR; and that the purpose for 
which the Trustees were appointed was to assist the Turkish government to 
expro priate the assets of Mr Ipek, his family and businesses for unjustified 
political reasons. It is not necessary for the purposes of this judgment to 
rehearse the detail of all the allegations which the claimants then make 
concerning the events in Turkey whi ch led to the appointment of the Trustees.  
9. The pleading then turns to the section 303 and 305 notices and the claimants' 
case on why those notices were invalid. Paragraph 34 asserts:  
"The s 303 Notice was invalid because:  
(1) The Trustees have no author ity in this jurisdiction to cause Koza Altin to 
do anything as a shareholder of the Company; and in any event  
(2) The s 303 notice was invalid as a matter of English company law."  
10. The pleading goes on to explain that the first of the grounds (the authority  
claim as it has been called) has already been explained, but that the second 
ground (the English company law claim) will be explained below. By section 
303 of the 2006 Act, members of a company can only require the directors to 
call a general meeting to c onsider resolutions which "may properly be 
moved". Section 303(5) provides that a resolution may be properly moved at a 
meeting unless it would, if passed, be ineffective (whether by reason of 
inconsistency with any enactment or the company's constitution or otherwise). 
The claimants contend that the proposed resolutions were not such as could 
properly be moved at a general meeting of the company because they would, if 
passed, be ineffective for the purposes of section 303(5)(a) of the 2006 Act as 
being con trary to the Company's constitution.  
11. At paragraph 44, under the heading "Claimants' case on need for final relief", 
the pleading asserts that the defendants are likely unless restrained to purport 
to serve further notices under section 305 of the 2006 Act  following the 
directors' refusal to call a meeting in response to the section 303 notice; and/or 
take further steps to try to change the constitution of the board of the 
company, misappropriate funds representing its share capital and/or its other 
assets,  or otherwise harm the business of the company.  
12. The relief claimed in paragraph 45 reflects, in somewhat expanded form, that 
sought in the claim form which I have summarised above.  
13. On the same day as the claim form was issued, the claimants sought an 
injunction, without notice to the defendants, to prevent any meeting of Koza 
Limited taking place for the purpose of passing the resolutions. Snowden J 
granted the injunction. He concluded, albeit in the absence of argument from 
the defendants, that there was  jurisdiction over the defendants because both 
aspects of the claim fell within Article 24(2) of the Recast Judgments 
Regulation.  
14. On 14 September 2016 all the defendants filed an acknowledgement of service 
in which they stated that they intended to contest the jurisdiction of the 
English court. On 7 October 2016 they issued an application to that effect. On 
the same day, Koza Altin (but not the Trustees) served a defence and 
counterclaim. The defence contains an express reservation that i t is served 
subject to a jurisdictional challenge on the part of Koza Altin as to the 
authority claim (at that stage called the Trustee issue) and by the first five 
defendants as to both the authority and the English company law claims. The 
defence does no t plead to any aspect of the Particulars of Claim which alleges 
want of authority on the part of the Trustees. In paragraph 9(3) of the defence 
Koza Altin pleads that the purported introduction of article 26 into the 
company's articles of association was i nvalid and ineffective, having been 
carried out otherwise than in good faith for the benefit of the company as a 
whole; that the purported issue and allotment of the A ordinary shares was 
invalid and ineffective, again having been carried out otherwise tha n in good 
faith for the benefit of the company as a whole and/or for an improper 
purpose; and that article 26 is unenforceable, being an unlawful fetter on 
powers conferred upon the company by statute, including the power under 
section 168(1) of the 2006 A ct to remove a director by ordinary resolution.  
15. The counterclaim incorporates by reference the relevant contents of the 
defence and adds no further factual allegation. It also expressly states that the 
counterclaim is not intended to waive the jurisdictio nal challenges that the 
defendants have made. The relief claimed in the counterclaim is purely 
declaratory. It claims declarations that (1) the changes introducing article 26 
purportedly effected to the company's articles of association in September 
2015 w ere invalid and ineffective and/or that article 26 is unenforceable or 
otherwise ineffective, and (2) the resolution purportedly passed by the 
directors at the board meeting on 11 September 2015 and/or the purported 
issue and allotment of A ordinary shares  to Mr Ipek and his brother were 
invalid and ineffective.  
16. In September 2016, the Turkish Savings Deposit Insurance Fund (SDIF) was 
appointed as "trustee" in place of the first five defendants, and then purported 
to use its power as such to appoint a new b oard of directors of Koza Altin. For 
that reason the first five defendants are sometimes referred to as the former 
trustees.  
17. There have been further procedural developments since Koza Altin served its 
defence and counterclaim. On 3 November 2016 the claim ants issued an 
application to strike out "the Acknowledgement of Service, Defence and 
Counterclaim and other documents filed by Mishcon de Reya [the defendants' 
solicitors] on behalf of" Koza Altin, with an associated application for 
directions for a trial  of that application. I will refer to these applications as "the 
strike out application" and "the directions application". The strike out 
application appears to have been brought (a) because of the procedural 
requirement to raise objections to authority at  an early opportunity rather than 
rely on them as a defence at trial, see e.g. Russian Commercial and Industrial 
Bank v Comptoir D'Escompte de Mulhouse and others [1925] AC 112 at 130; 
and (b) to guard against the possibility that the authority claim was h eld to be 
outside the jurisdiction of the court. In those circumstances the claimants 
wished to preserve the ability to argue that the defendants' solicitors had no 
authority to act in the context of the English company law claim.  
18. Koza Altin takes the vie w that the strike out application was misconceived. On 
the second day of the hearing before Asplin J it put forward a draft application 
notice setting out the reasons why it considered that the strike out application 
should be summarily dismissed in the ex ercise of the court's case management 
powers.  
19. The judge held that the court had jurisdiction in respect of all the issues raised 
in the action. If she was wrong about that, she held that by counterclaiming in 
the action Koza Altin had submitted to the jur isdiction. She expressed 
puzzlement about the strike out application. In paragraph 67 she pointed out 
that, unlike in cases where a defendant wishes to take a point on the authority 
of those purporting to act for the claimant, the claimants had brought Koz a 
Altin before the court as a defendant. She continued:  
"It seems to me that it would be a nonsense if, having done so, the Claimant 
could contend that the Acknowledgment of Service and Defence could be 
struck out as an abuse of process arising from the v ery lack of authority which 
is relied upon in the claim itself."  
20. The judge then went on to consider whether the position was different in 
relation to the counterclaim and concluded that it was not. She also held that:  
"…it would also make a nonsense of th e Jurisdiction Application if it were 
possible, having lost that application in relation to the Authority Claim, to seek 
to resurrect it outside the ambit of Article 24(2)…"  
21. In the result, however, the judge adjourned the strike out application to be 
dealt  with at the trial of the "Authority Issue". By that stage undertakings had 
been given by the defendants not to assert that the strike out could not be dealt 
with at trial, thus waiving any point based on the principle in Russian 
Commercial and Industrial Bank  (supra ), and the claimants had waived any 
potential case of breach of warranty of authority against Mishcon de Reya. 
The judge ordered that the costs of the strike out application should be costs in 
the Authority Issue. She ordered that the claimants should pay the defendants' 
costs (if any) of the associated directions application.  
22. The issues before the court on this appeal are the following:  
i) Whether the judge was correct to hold that the proceedings were within 
Article 24(2) of the Recast Judgme nts Regulation ("the jurisdiction issue");  
ii) Whether Koza Altin had in any event submitted to the jurisdiction of the 
English court in relation to the authority claim ("the submission issue");  
iii) Whether the judge's refusal to dismiss the strike out ap plication was wrong 
("the strike out issue").  
The jurisdiction issue  
23. The general rule under the Recast Judgments Regulation is, as it was under the 
predecessor European legislation, that defendants are to be sued in the courts 
of the state where they are domiciled: in other words, "defendants play at 
home". The general rule is subject to exceptions. Given their status as 
exceptions, they are to be construed narrowly, or at least no more broadly than 
is required by their objective. Article 24 , which deals with exclusive 
jurisdiction irrespective of domicile, is one such exception. So far as material, 
it provides as follows:  
"The following courts of a Member State shall have exclusive jurisdiction, 
regardless of the domicile of the parties: …  
(2) in proceedings which have as their object the validity of the constitution, 
the nullity or dissolution of companies or other legal persons or associations of 
natural or legal persons, or the validity of the decisions of their organs, the 
courts of the Member State in which the company, legal person or association 
has its seat. In order to determine that seat the court shall apply its rules of 
private international law."  
24. The policy rationale for article 24(2), which guides its interpretation, is that it 
is desirable to centralise jurisdiction in relation to the identified subject matter 
in order to avoid conflicting decisions, for example as to the existence of a 
company or the validity of one of its decisions. The courts of the member state 
where the com pany has its seat are also recognised to be best placed to deal 
with such disputes: see Case C -372/07 Nicole Hassett v South Eastern Health 
Board  [2008] ECR I -7403 at [20] and [21].  
25. It is common ground that article 24(2) applies in the circumstances of th is case 
even though Turkey is not a member state of the European Union.  
26. There is no dispute that the seat of Koza Limited, which is a company 
registered under the Companies Acts, is in England and Wales. No reliance is 
placed by the claimants on the first  limb of article 24(2) i.e. that concerned 
with " the validity of the constitution, the nullity or dissolution of companies or 
other legal persons or associations of natural and legal persons ". The 
question which arises therefore is whether the proceedings can be classified as 
ones which have as their object " the validity of the decisions of [Koza 
Limited's] organs ". It is common ground that Koza Limited's shareholders in 
general meeting and its board of directors constitute organs of that company.  
27. Koza Alt in accepts that the English company law claim falls within article 
24(2), although there is a separate question as to whether the former trustees 
are properly joined to it. The former trustees dispute that the court has any 
jurisdiction in relation to any aspect of the claim against them.  
28. It is common ground that when article 24(2) speaks of proceedings having an 
"object" it is not referring to the purpose of the proceedings. Rather that phrase 
is to be interpreted as "proceedings which are principally con cerned with" one 
of the types of subject matter within the article. That was the view of Aikens 
LJ (with whom Etherton and Pill LJJ agreed) in JP Morgan Chase Bank NA 
and another v Berliner Verkehrsbetriebe Anstalt des Öffentlichen Rechts  
[2010] EWCA Civ 390  in relation to the equivalent provision in the 
predecessor regulation, Council Regulation (EC) No 44/2001 at [83]. There is 
no reason why the same should not be the case in relation to article 24(2) of 
the Recast Judgments Regulation.  
29. In order to answer the question whether proceedings which raise multiple 
issues are "principally concerned" with one of the matters within article 24(2) 
the court  has to undertake "an exercise in "overall classification" and make an 
"overall judgment" to see whether the proceedings are "principally concerned" 
with one of the matters set out in" the article: JP Morgan Chase  at [87].  
30. In JP Morgan Chase  at [88] Aiken s LJ, said that this interpretation of the 
corresponding article, article 22(2), of the predecessor regulation:  
"… fits with the wording of article 25. It also fits with the objective of article 
22, which is to give exclusive jurisdiction to the courts of  the state which will 
be best suited to dealing with the relevant issue, depending on which 
paragraph of article 22 is in play. It is only necessary to displace the general 
rule as to jurisdiction or the parties' own agreed jurisdictional choice if, 
making  an overall judgment, it is clear that granting jurisdiction to the courts 
of the relevant state (where the land is, where the company has its seat, where 
the patent is registered, etc) will result in the sound administration of justice. 
In the context of article 22.2, this will not be the case unless, overall, the 
proceedings are so closely connected with matters of local company law and 
internal corporate decision making in respect of the company that the 
proceedings should not be tried anywhere but in th e courts of the state where 
the company has its seat."  
31. It is to be noted that the final sentence of the passage I have cited from Aikens 
LJ's judgment expresses the test in terms of the proceedings overall , and their 
connection  with matters of local compan y law and internal corporate decision 
making. It is very far from a statement that the proceedings must exclusively 
relate to matters of local company law. Indeed it is difficult to see how such a 
test could be applied in any real dispute, where other lega l issues will almost 
inevitably arise.  
32. In Hassett (supra) , two doctors who were sought to be made liable in 
proceedings for damages for personal injuries, sought indemnification against 
the Medical Defence Union (MDU) of which they were members. The MDU 
was a company incorporated in England. The MDU responded that its articles 
of association provided that any request for an indemnity came within its 
absolute discretion, and refused the requests. On the basis that the refusals 
infringed their rights under t he articles of association, the doctors successfully 
joined the MDU as additional party to a claim which had been brought against 
them in Ireland by individual claimants (in fact via the health authority as an 
intervening party). The MDU then contended tha t its joinder should be set 
aside on the ground that, because the claims against it "concerned in essence 
the validity of decisions adopted by its board of management" they fell within 
the scope of article 22(2) of Regulation 44/2001, with the result that 
jurisdiction lay exclusively with the courts of England and Wales and not the 
courts of Ireland.  
33. The Court of Justice characterised the question which it was asked by the Irish 
Supreme Court as being whether article 22(2) meant that proceedings in which 
one of the parties alleges that a decision adopted by an organ of the company 
infringes its rights under that company's articles of association were 
proceedings concerned with the validity of the decisions of t he organs of the 
company within the meaning of that provision. The Court of Justice had little 
difficulty in answering that question in the negative. At paragraph 23 of the 
judgment the court pointed out that if all disputes involving a decision by an 
organ of a company had to be treated as coming within the scope of the article, 
that would mean that all legal actions brought against a company, whether in 
matters relating to contract, or to tort or any other subject matter, would 
almost always come within t he jurisdiction of the courts of the member state 
in which the company had its seat. Thus the provision had to be interpreted as 
covering only disputes in which a party is challenging the validity of a 
decision of an organ of a company. There was no indica tion that the doctors 
had raised any such challenge. In fact the challenge was to the way in which 
the power undoubtedly contained in the articles of association was to be 
exercised. As the court put it at paragraph 22, it was not "sufficient that a legal 
action involve some link with a decision adopted by an organ of a company".  
34. Of more direct assistance is Case C -144/10 Berliner Verkehrsbetriebe, Anstalt 
des öffentlichen Rechts v JP Morgan Chase Bank  NA [2011] 1 WLR 2087 . 
There, the German public transport authority (BVG) brought proceedings in 
Germany seeking a declaration that a swap contract, which it had entered into 
with an Ame rican bank, and in respect of which the bank had brought 
enforcement proceedings in the English High Court pursuant to an English 
jurisdiction clause, was void because its subject matter was ultra vires  the 
authority's own statutes. It contended that, by v irtue of article 22(2), the 
subject matter was one over which the courts of Germany, as the state in 
which it had its seat, had exclusive jurisdiction. The relief BVG sought in 
Germany also included an order, in the alternative, that the bank should 
releas e BVG from any obligation stemming from the swap contract (as 
compensation for negligent advice given by the bank), and for damages 
against the bank.  
35. The Court of Justice recognised at [37] that Regulation 44/2001 conferred 
exclusive jurisdiction to adjud icate on disputes which relate to the validity of 
the decision of a company's organs upon the courts where the company had its 
seat, and that those courts were best placed to adjudicate upon disputes which 
relate exclusively, or even principally to such a question. It went on, however, 
to state at [38]:  
"However, in a dispute of a contractual nature, questions relating to the 
contract's validity, interpretation or enforceability are at the heart of the 
dispute and form its subject -matter. Any question conc erning the validity of 
the decision to conclude the contract, taken previously by the organs of one of 
the companies party to it, must be considered ancillary. While it may form part 
of the analysis required to be carried out in that regard, it nevertheles s does not 
constitute the sole, or even the principal, subject of the analysis."  
36. In that passage, the court is giving general guidance as to disputes which can 
be properly characterised as "of a contractual nature". Whilst issues about the 
validity of the decision to conclude the contract might well, in isolation or in 
other contexts, fall within Regulation 44/2001, in the particular context of 
contractual disputes they were not, in general, the principal concern of the 
proceedings.  
37. The task for the court in each case is therefore to determine whether the 
proceedings relate principally to the validity of the decisions of an organ of the 
company. A mere link to a decision of the company, or an issue raised which 
is ancillary to the heart of a contractual or some other dispute, is insufficient to 
bring the proceedings within the exclusive jurisdiction.  
38. In our case, Asplin J concluded that the principal subject matter of the 
proceedings did fall within article 24(2). Although a generalised attack on the 
author ity of those purporting to act for Koza Altin would not be within article 
24(2), that was not the nature of the proceedings here. She considered that the 
English company law claim and the authority claim were "inextricably 
linked". Just like the English co mpany law claim, the authority claim went 
directly to the validity of the section 303 and section 305 notices and thus 
related directly to the validity of the decisions of an organ of the English 
company. It was artificial to seek to separate out the two i ssues.  
39. Mr Crow QC, who appeared on behalf of the appellants, contended that the 
authority claim and the English company law claim were two distinct claims 
brought against different parties: the authority claim being a claim against the 
former trustees to which Koza Altin was a necessary and proper party, and the 
English company law claim being a claim only between the two companies. It 
was therefore necessary to look at the case on a claim by claim basis. He 
stressed that the question before the court was whether the authority claim 
falls within the exclusive jurisdiction of the English courts by virtue of article 
24(2). The claimants were not pursuing any alternative application for 
permission to serve the proceedings out of the jurisdiction, for example o n the 
basis that the former trustees were necessary and proper parties to the English 
company law claim. Their contention was that they did not need such 
permission because the whole claim fell within article 24(2).  
40. Considering the authority claim, Mr Cro w submitted, firstly, that the claim did 
not attack the validity of the appointment of the former trustees. He drew 
attention to what he said were concessions by the claimants that the 
appointments were valid "in Turkey". The burden of the claim was that t he 
appointments, though valid in Turkey, should not be recognised by the English 
courts as a matter of public policy. Secondly, he submitted that the challenge 
to the effectiveness of the section 303 notice served by Koza Altin was not a 
challenge to a dec ision of an organ of Koza Limited. It was a challenge to the 
ability of Turkish appointees of a Turkish company to serve a notice. There 
was a significant difference between the ability of individual shareholders to 
serve a notice calling a general meeting , and the validity of a decision taken at 
a meeting once called. Thirdly he submitted that the issues raised by the 
authority claim were not issues of English company law. They were issues of 
Turkish law, violation of article 6 ECHR, and English public pol icy. The 
policy rationale of article 24(2), namely to centralise jurisdiction in the courts 
of the seat of the company, accordingly did not apply.  
41. Mr Crow also submitted that, even if it was correct to look at the proceedings 
as a whole, it was still not possible to say that the proceedings were 
"principally concerned" with decisions of an organ of Koza Limited. By far 
the largest issue in the proceedings if they were allowed to go to trial would be 
the authority claim. He took us to the claimants' expansi ve draft statement of 
case on the authority claim, which extends to some 34 pages. By contrast the 
matters for consideration in the English company law claim, even taking into 
account the allegations of lack of good faith on the part of Mr Ipek, would be 
relatively easily and shortly determined.  
42. Mr Crow finally submitted that the position of the former trustees needed to be 
considered separately from the position of Koza Altin, even if the claim 
against Koza Altin were properly within Article 24. The forme r trustees, he 
submitted, were not parties to the company law claim. The former trustees are 
not and never have been shareholders in Koza Limited or directors of it. 
Although Article 24(2) is concerned with subject matter of the proceedings, 
there was no n eed for it to be interpreted so widely as to confer jurisdiction 
against Turkish nationals domiciled in Turkey. The only necessary parties are 
the company itself or its organs. The former trustees were third parties, whom 
it was not necessary to join.  
43. Mr Morgan QC, who appeared on behalf of the claimants, supported the 
judgment of Asplin J. His analysis of the ECJ cases to which I have referred 
was that they were what he called "outward facing", and the present case was 
distinguishable because it was conce rned with the internal decision making of 
the company. It was not possible to divide the claim against Koza Altin into 
two discrete parts, based on the authority and English company law points. 
They were two grounds on which the validity of decisions of th e organs of the 
company were being challenged. On the position of the former trustees, Mr 
Morgan objected that no distinction was drawn in the arguments of the 
defendants before Asplin J between the position of the personal and corporate 
defendants. Furthe r, he drew attention to an argument rejected by the Court of 
Appeal in JP Morgan Chase  (supra ), namely that Article 24(2) only related to 
disputes between the legal entity and its officers or shareholders and did not 
extend to disputes between the legal en tity and third parties. He submitted that 
Article 24(2) was concerned with the subject matter of the dispute. The 
identity of the proper parties to a dispute within Article 24(2) was a matter for 
the national court's procedural rules.  
44. I think the flaw in Mr Crow's primary argument in relation to the claim against 
Koza Altin is that it treats the two issues in that claim as if they were entirely 
severable. He then analyses the authority issue as if it was a freestanding claim 
and conclud es that, as such, it would not fall within article 24(2). If that were 
the correct approach to the application of Article 24(2) then I would have been 
inclined to accept his submissions. Such a freestanding claim would not fall 
within the language or the r ationale and purpose of Article 24(2). However, in 
my judgment, that is not the correct way in which to analyse the case against 
Koza Altin, and is not the approach in law which is mandated by the 
authorities.  
45. I agree with the judge that, far from being s everable, the two issues raised in 
the claim against Koza Altin are inextricably linked. Both are concerned with 
the validity of decisions of the shareholders in general meeting to replace the 
board of directors of Koza Limited. Both issues are preconditio ns for a valid 
decision of an organ of the company. So much is clear from, in particular, the 
claim form and paragraph 34 of the particulars of claim.  
46. I do not take from the English or European authorities which were cited to us 
any suggestion that one is  required in all cases to disentangle issues which are 
interlinked in this way and apply Article 24(2) to each issue separately. On the 
contrary, faced with such proceedings, the court is required to form an overall 
evaluative judgment as to what the proce edings are principally  concerned 
with. The position is obviously different from a case where two quite 
independent claims are made in the same proceedings. Exclusive jurisdiction 
in relation to each claim would, in those circumstances, have to be determine d 
separately.  
47. It is true that the decision of Koza Limited in general meeting which is sought 
by Koza Altin's resolutions has not yet been made. That is only because the 
proceedings were brought quia timet  in order to prevent the holding of such a 
meeting , and an interim injunction obtained to prevent it. Final relief is in any 
event sought to prevent any further decision of the company because it would 
be invalid on the same grounds. Even bearing in mind the narrow scope of the 
exception represented by Ar ticle 24(2), I cannot accept that the conclusion on 
jurisdiction should be different depending on whether the decision has been 
taken or is expressly threatened and imminent. The policy rationale behind the 
exception is equally satisfied in both scenarios.  That there is a decision of an 
organ of the company under attack in the proceedings must in any event be 
implicit in Koza Altin's concession that the English company law issue is 
within the exclusive jurisdiction.  
48. That view of the proceedings is consiste nt with the way in which the action is 
pleaded in the particulars of claim. It is true, as the judge also observed, that 
some of the relief claimed might appear in isolation to go further than a 
challenge to the authority of those purporting to act for Koz a Altin in relation 
to the internal management of Koza Limited. Read as a whole, however, in 
particular taking account of the way the case is pleaded in paragraph 34, it is a 
challenge to the ability of Koza Altin to act as a shareholder of Koza Limited 
in relation to Koza Limited's internal affairs.  
49. It is true that the authority issue (as I prefer to call it) does raise issues of law 
which are not issues of English company law. But the presence of those issues 
in the action does not prevent the proceeding s from being principally 
concerned with the validity of decisions of the organs of the company. The 
relevance of those non -company law issues goes directly to the validity of the 
notices and therefore the validity of the decision of the company taken in 
pursuance of them. The requirement for a valid notice is, in any event, a 
requirement of English company law.  
50. I do not think that the analysis required by article 24(2) into the principal 
concern of the proceedings involves an assessment of how much evidenc e or 
argument is likely to freight the individual issues. I would accept that the 
English company law point is less weighty if viewed in those terms. To 
approach the assessment in that way would, however, be to shut one's eyes to 
what the proceedings were principally about. On the view which I take, 
however, both issues are concerned with the validity of the decisions of the 
company's organs.  
51. In my judgment, therefore, it is correct to characterise the proceedings as a 
whole (so far as they relate to Koza Altin) as being principally concerned with 
the validity of decisions of an organ of the company.  
52. I turn to the position of the former trustees. On this issue we do not have the 
benefit of any reasoning of the judge because it appears that the point was no t 
argued below. Mr Crow points out that the judge raised the issue with counsel 
for the claimants, but it is plain that counsel then instructed by the defendants 
did not ask the judge to decide the case on this basis. Mr Crow submits that 
the points he rai ses are no more than points of law, and the claimants are not 
prejudiced by having to meet them at this stage.  
53. I would permit the former trustees to raise the point, as it is a minor variant on 
the way in which the case was argued below. I would neverthel ess reject it. 
The test to be applied remains an overall classification and overall judgment of 
the proceedings as a whole. That overall assessment does not in my judgment 
change dependent on which defendant one focuses on. Article 24(2) is 
concerned with the subject matter of the proceedings, not with who the parties 
are. It is not suggested that the former trustees cannot properly be joined to the 
action seeking declarations as to the validity of the decisions which they have 
initiated.  
54. The former truste es' case is that it is not necessary to join them, and that, 
although this is not mandated by the language of the Recast Judgments 
Regulation, a strict interpretation would exclude cases against unnecessary 
parties. I accept that it is not necessary for th e claimants to join the former 
trustees, but that fact does not, in my judgment, lead to the conclusion that the 
action against them is not principally concerned with subject matter within 
Article 24(2). The subject matter of the proceedings remains the sa me. The 
case remains one to which the underlying rationale of the article applies, 
namely avoiding conflicting decisions in relation to the specified subject 
matter, and ensuring that the proceedings are tried in courts best placed to do 
so.  
The submissio n issue  
55. As I have concluded that the court has jurisdiction over the proceedings 
against Koza Altin, this point does not strictly arise. I will deal with it shortly.  
56. Asplin J concluded that Koza Altin had submitted to the jurisdiction, largely 
because she considered that, once a party has invoked the rules of the local 
court by counterclaiming, that party is to be taken as submitting to the 
jurisdiction, irrespective of any reservation that may be contained  in the 
counterclaim or elsewhere.  
57. In SMAY Investments Limited v Sachdev  [2003] EWHC 474 (Ch) , Patten J, as 
he then was, explained the impact of the new rules  in CPR Part 11 concerning 
applications to challenge the jurisdiction of the court. At [41], in a passage 
expressly approved by this court in Zumax Nigeria v First City Monument 
Bank  [2016] EWCA Civ 567  at [45], he said:  
"It seems to me that when a defendant has complied with CPR Part 11 with a 
view to challenging the jurisdiction of the court, and the time for making his 
application under CPR Part 11(4) has n ot yet expired, then any conduct on his 
part said to amount to a submission to jurisdiction, and therefore a waiver of 
that right of challenge, must be wholly unequivocal."  
58. Accordingly, what needs to be identified is a wholly unequivocal submission 
to the  jurisdiction.  
59. Mr Morgan relied on a passage from Dicey, Morris & Collins, The Conflict of 
Laws  (15th Edition) at paragraph 14 -068:  
"It is obvious that a person who applies to a tribunal as claimant is bound to 
submit to its judgment, should that judgmen t go against him, if for no other 
reason than that fairness to the defendant demands this. It is no less obvious 
that a claimant exposes himself to acceptance of jurisdiction of a foreign court 
as regards any set -off, counterclaim or cross -action which may  be brought 
against him by the defendant. By the same token, a defendant who resorts to a 
counterclaim or like cross -proceeding in a foreign court clearly submits to its 
jurisdiction."  
60. Whilst it is the case that a party which itself invokes the jurisdicti on of the 
court without qualification clearly submits to the jurisdiction, that is plainly 
not what has happened on the facts of this case. On the same day as the 
counterclaim was served, Koza Altin issued its jurisdiction challenge in 
relation to the auth ority claim. Far from being an unequivocal submission to 
the jurisdiction, the counterclaim made it clear that it was without prejudice to 
the jurisdiction challenge. In addition, its factual allegations go no wider than 
the defence and relate entirely to the issue on which it is accepted that the 
court has jurisdiction. The defence itself is scrupulous to avoid engagement 
with the authority issue. There is no "wholly unequivocal" submission to the 
jurisdiction in relation to the authority issue.  
61. I would t herefore not have reached the same conclusion on this issue as the 
judge, had it been necessary for me to do so. In the event this does not matter.  
The strike out issue  
62. I have set out the procedural background above. It will be recalled that the 
strike ou t application sought a ruling that Koza Altin's solicitors were not 
properly authorised to act for it. Mr Crow advanced two broad points in 
support of his contention that the judge should have dismissed the application. 
The first was that, given that the j udge expressed the view that the strike out 
application was "a nonsense", she ought to have followed through on that 
conclusion and dismissed it. The second point was that the strike out 
application was bound to fail on the merits in any event. He made no secret of 
the fact that what lay behind the appeal was the desire to achieve a more 
favourable position in costs.  
63. I take first the issue of whether the judgment is internally inconsistent. The 
judge reached three conclusions. First, she concluded that wit h the authority 
issue in play there would be no point in a strike out application directed at the 
acknowledgment of service and defence. It would raise the same issue. 
Secondly, she concluded that the same remained true even in the light of the 
counterclai m. Thirdly, the judge concluded that if the authority point was not 
in play (for lack of jurisdiction) it would be wrong to allow the strike out to 
undermine that result by bringing it back in.  
64. I think, however, that in the circumstances where only the co mpany law issue 
was in play, and the claimants were exposed to the counterclaim, they 
remained entitled to question the authority of those representing Koza Altin. It 
was not, on this view, a nonsense to seek to strike out at least the counterclaim 
and to seek directions for the trial of that question. In the event, with both 
issues in play, the strike out application lost any conceivable utility, and so the 
judge could simply have made no order on the strike out application, or 
dismissed it. However, it do es not follow that she was wrong to take the 
course which she did, namely to stand it over to the trial with costs in the 
authority issue, and also to make the claimants pay the costs of the directions 
application. One might quibble, for example by saying that she could have 
made no order for costs, or that she could have reserved the issue of costs to 
the trial, rather than making the costs follow the event, but that is not the basis 
on which the judge's decision is attacked before us. Koza Altin's case is  that it 
followed as a matter of logic that the strike out application should have been 
dismissed with costs. It does not. The judge's decision was, in the 
circumstances which arose after judgment, a case management decision with 
which it would be wrong fo r this court to interfere.  
65. Mr Morgan's answer to the second way in which the strike out application is 
attacked is to say that there was no substantive argument before Asplin J on 
the merits of the strike out application at all. The case was argued before  
Asplin J on the basis that the real issue was the case management one, namely 
whether it was convenient for the strike out application to be dealt with as a 
separate matter or at trial. When counsel for Koza Altin introduced his attack 
on the strike out a pplication he indicated that it raised essentially case 
management questions for the court in the light of its judgment on the main 
issues before it. He did not go on to argue, despite what was said in the 
application notice, that the strike out applicatio n was bound to fail.  
66. Mr Crow responds that there was material before the court below which did 
provide a basis for saying that the strike out application was bound to fail:  
i) An argument propounded in paragraph 22 of the witness statement of Mr 
Plowman, the solicitor at Mishcon de Reya dealing with the matter for the 
defendants, in the context of responding to a possible application for service 
out of the jurisdiction, that the authority claim did not raise a serious issue to 
be tried.  
ii) Par agraphs 15.3.2 onwards of the skeleton argument placed before Asplin J 
at the hearing of the applications before her, again in the context of a possible 
application for permission to serve out. The heading is again "no serious issue 
to be tried". The passa ge relies on some evidence of an expert in Turkish law 
as to the validity of the appointment of the directors of Koza Altin. This 
passage goes on to draw an analogy with cases such as Williams & Humbert  
Ltd v W & H Trademarks (Jersey) Ltd [1986] 1 AC 368 . The skeleton goes on 
to say at paragraph 20.6 that if the court upholds the jurisdiction challenge on 
the basis that the authority claim does not raise a serious issue to be tried, the 
strike out application must fail.  
67. Despite the availability of this mate rial, I do not think that it would be right for 
this court to embark for the first time on the substantive merits of the strike out 
application when there was no such argument in the court below. It is of 
course true to say that this court will sometimes e ntertain argument on and 
decide a discrete issue of law which has not been argued below. Indeed I have 
done so in relation to the defendants' argument that the former trustees should 
be treated differently on the jurisdiction issue. That is because the cou rt must 
apply the law, and the decision of the judge below may be "wrong" in terms of 
CPR 52.21(3)(a) even if the point in question was not argued before the judge. 
It is, however, an entirely different matter to allow an application which was 
not advanced  at all on its substantive merits to be advanced on that basis for 
the first time in the Court of Appeal. It is impossible in such circumstances to 
say that the judge's decision to stand the application to trial, taken in the 
absence of any such argument, is wrong. Further, by proceeding to hear the 
substance of the application for the first time in this court, the respondent to 
the application is being deprived of the opportunity to contest the application 
on that basis at first instance. It is no answer, in my judgment, to point to 
material which was before the judge for a different purpose. The consequence 
of the matter having been approached in the way it was before the judge, with 
the result that both parties' substantive cases were reserved to trial, i s that we 
should not allow the defendants to advance their case in a different way before 
us.  
Conclusion  
68. In the result I would grant permission to appeal in relation to each of the issues 
which we have heard argued before us, but, for the reasons I have g iven, I 
would dismiss the appeal.  
Lord Justice Flaux  
69. I agre e