Anthony James Broom v Maria Del Pilar Molina Aguilar
[2024] EWHC 1764 (Ch)
Andrew Edward McCarthy v Graham Brian Proctor
26 March 2024
[2024] EWHC 684 (Ch)
High Court
Two British businessmen had a fight over a house in Spain. One tried to sue the other in the UK, even though the house and most of the dealings were in Spain. A UK judge decided the case should stay in the UK because both men are British and it would be easier to hear the evidence here. The judge also believed the claim against the man had a chance of succeeding.
Key Facts
- •Claimant and defendant were Welsh businessmen with a broken business relationship.
- •Dispute concerns a property in Spain (Spanish Villa).
- •Defendant allegedly sold the beneficial interest in the Spanish Villa to the claimant in 2016 for €950,000.
- •Claimant sold the property to a third party in 2016.
- •Subsequent proceedings (Jones Claim) found claimant liable for breach of contract with a third party, Mr. Jones, concerning the Spanish Villa.
- •Claimant sued defendant for breach of contract, negligent misstatement, and restitution.
- •Court initially granted permission to serve the claim form outside the jurisdiction (Spain).
- •Defendant applied to set aside the order, claiming lack of real prospect of success, inappropriate jurisdiction, and breach of full and frank disclosure.
- •Various agreements between the parties existed concerning the Spanish Villa (2007 Assignment Agreement, 2014 Agreement, May 2016 Sale Agreement).
Legal Principles
Permission to serve a claim form outside the jurisdiction requires a reasonable prospect of success, a good arguable case within a specified ground in Practice Direction 6B, and England and Wales being the proper forum.
CPR r. 6.36, r. 6.37, Practice Direction 6B, Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7
The test for a 'real prospect of success' is the same as for summary judgment under CPR Part 24.
Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7
On an application to set aside permission to serve out, the court considers the position at the time permission was granted, not at the time of the application to set aside.
Satfinance Investment Ltd v Athena Art Finance Corpn [2020] EWHC 3527 (Ch)
On a without-notice application, the claimant must make full and frank disclosure of any matters that might cause doubt about granting permission.
MRG (Japan) Ltd v Engelhard Metals Japan Ltd [2003] EWHC 3418 (Comm)
In determining the appropriate forum, factors include: personal connections of parties, factual connections of events, convenience/expense, and applicable law.
VTB Capital plc v Nutritek International Corpn [2013] UKSC 5
Outcomes
Defendant's application to set aside the order granting permission to serve out of the jurisdiction was rejected.
The court found a real prospect of success on the negligent misstatement claim, determined England and Wales to be the appropriate forum, and found no breach of the duty of full and frank disclosure.
Permission to serve the claim outside the jurisdiction was confirmed.
The court considered the claimant had a real prospect of success on the negligent misstatement claim and England and Wales was the more appropriate forum for trial, weighing factors such as the parties' British nationality, the language of the communications, witness convenience, and the risk of a time-barred claim in Spain.