SHARAB V AL-SAUD

[2008] EWHC 1893 (Ch), Chancery Division, John Powell QC sitting as Deputy High Court Judge, 31 July 2008

Conflict of laws – Service outside jurisdiction – Whether claimant establishing good arguable case that CPR 6.20 applied – Whether England the most convenient forum

The claimant sought payment for commission allegedly owing to her by the defendant with respect to her role in the sale of an aircraft by the defendant. The claimant relied upon an oral contract made in London in August 2001 and varied in Libya in April 2003. The defendant denied the existence of any contract. The claimant sought permission to serve the defendant outside the jurisdiction. The court held that permission would be granted. (1) The test for whether the claimant had a good arguable case that there was a head of jurisdiction within CPR 6.29 was whether she had a much better argument. (2) The claimant had a good arguable case that a contract had been made in England within CPR 6.20(5)(a), although her alternative claim that if there was no contract then she had a claim on the basis of quantum meruit fell outside CPR 6.20(5)(a) because it did not relate to a contract. (3) The claimant did not have a good arguable case that the contract was made by an agent trading or residing within the jurisdiction under CPR 6.20(5)(b) because there was no evidence that the defendant’s agent either traded or resided in England. (4) The claimant did not have a good arguable case within CPR 6.20(5)(c) that the contract was governed by English law under Art 4 of the Rome Convention 1980: she was to carry out the characterising performance but her habitual residence was not London and she did not enter into the contract in the course of a trade or business. (5) The claimant had established a good arguable case that the contract was to be performed in England and that it had been broken in England within CPR 6.20(6). (6) The claimant had a reasonable prospect of success on the substance of the action. (7) England was the appropriate forum for the action: it was not clear that the alternative forum of Libya would exercise jurisdiction; the trial was on straightforward issues of fact; London was a convenient place in terms of evidence and witnesses; the connecting factors were all with England; and it would be easier to enforce an English judgment in Saudi Arabia than it would a Libyan judgment.