Simon Bain Building Services Limited v Jenna Cardone & Anor
[2023] EWHC 2916 (Ch)
Pantheon International Advisors Limited v Co-Diagnostics, Inc
28 July 2023
[2023] EWHC 1984 (KB)
High Court
Two companies had a contract dispute. One company tried to sue in England without getting permission first. The judge said it was okay because there was good evidence that the companies had agreed to settle disputes in England. The judge also said to try to settle the dispute through a negotiation process before going to court.
Key Facts
- •Pantheon International Advisors Limited (Pantheon) claimed against Co-Diagnostics, Inc (CDX) for breach of contract and unjust enrichment.
- •Two contracts were central: a 2016 agreement and an allegedly executed 2018 agreement (only signed by Pantheon).
- •Both agreements contained jurisdiction clauses favoring the English court and specified English law as governing law.
- •CDX challenged the English court's jurisdiction and sought to set aside service.
- •Pantheon cross-applied to re-amend its particulars of claim to include the 2016 contract as an alternative claim.
- •A significant factual dispute existed regarding the existence and validity of the 2018 contract and the services performed under it.
- •CDX argued that Pantheon's director had a 'torrid past' influencing their decision not to finalize a contract.
Legal Principles
Good arguable case test for service out of jurisdiction without court permission (CPR 6.33(2B)(b)).
Brownlie v Four Seasons Holdings Inc [2017] UKSC 80; Goldman Sachs International v Novo Banco SA [2018] UKSC 34; Kaefer Aislamientos v AMS Drilling Mexico [2019] EWCA Civ 10
Principles of contract formation.
Blue v Ashley [2017] EWHC 1928 (Comm); Chitty on Contracts (34th edition, 2021)
Tests for service out of jurisdiction with court permission (CPR 6.36, CPR 6.37).
Altimo Holdings and Investment Ltd v Kyrgyz Mobile Tel Ltd [2011] UKPC 7; PD6B 3.1
Court's power to grant retrospective permission (CPR 3.10).
Nesheim v Kosa [2006] WL 2794124; National Justice Compania Naviera v Prudential Assurance Company Limited No.2 [2000] 1WLR 603; Hannigan v Hannigan [2002] 2 FCR 650
Court's inherent jurisdiction to stay proceedings for ADR.
Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2246 (TCC); Children’s ARK Partnership Ltd v Kajima Construction Europe (UK) Ltd [2022] EWHC 1595(TCC)
Doctrine of forum non conveniens.
Spiliada Maritime v Cansulex [1986] 3 All ER 843; Donohue v Armco Inc [2001] UKHL 64; UBS AG v HSH Nordbank AG [2009] EWCA Civ 585; Dicey, Morris & Collins “The Conflict of Laws” (16th ed, 2022)
Outcomes
The English court has jurisdiction to hear the claim for breach of the alleged 2018 contract.
Pantheon established a good arguable case that a binding contract existed, containing a valid jurisdiction clause. The court considered the evidence of communications between the parties.
Retrospective permission granted to serve the claim form out of jurisdiction.
The court exercised its discretion under CPR 3.10, finding no significant prejudice to CDX and considering the interests of justice, especially in light of potential limitation issues.
Proceedings stayed to allow for ADR as per clause 23 of the alleged 2018 contract.
The court considered the contract's mandatory ADR clause and the parties' agreement to a stay.