Rapport de Brigitte

8/6/2019 Rapport de Brigitte

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ORD 09/0030

IN THE HIGH COURT OF JUSTICE OF THE ISLE OF MANCIVIL DIVISION

ORDINARY PROCEDURE

BETWEEN:-

SIMKERLIMITEDClaimant

And

D.C.N.INTERNATIONALS.A.And

D.C.N.S. S.A.AndTHALESS.A. DefendantsAndIN THE MATIER of the Claim Form of the Claimant dated the i h October 2009AndIN THE MATIER of the Application Notice of the Claimant dated the lS th

October 2009

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Transcript of a judgmentof His Honour the Deemster Doyle

delivered at Douglas on the 28th day of October 2009

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Introduction

1. Simker Limited (the \'Claimant'') applies to withdraw its daim form and

its application for permission to serve the daim form out of the jurisdiction. l am going to permit the Claimant to withdraw its daimform and its application but before l do so l wish to set out thebackground to the daim form, the application, the issues raisedand whythe Claimant now seeks to withdraw. l do this for two main reasons.Firstly, the application raised an important point in respect of Rule2.41(1)(f) (ii) of the new Rules of the High Court of Justice 2009 (the"2009 Rules''). Secondly, it may be that the Claimant will endeavour tomake a fresh application for service out and it wouId be useful for theparties to have this judgment available in order that any fresh

application for service out can be considered in the context of this failedapplication for permissionto serve out of the jurisdiction.

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2. Sy application notice dated the is" October 2009 the Claimant appliedfor permission to serve its daim form outside the jurisdiction on D.C.NInternational S.A., D.C.N.S. S.A. and Thales S.A. (ail entities stated tohave addressesin France).

3. The Claimant states that the daim is made in respect of a contractwhich was made by or through an agent trading or residing within the jurisdiction of the Isle of Man.

4. The Claimant states its belief that the daim has a reasonable prospectof success. It is stated that the daim arises out of "a Settlement Agreement negotiated by the Claimant and by a representative of the Defendants who is also a Senior Civil Servant within the French Government. N

5. The following information is also provided in the daim form albeit in thewrong box:-

"The entire relationship between the C1aimantand the Defendants was negotiated in the Isle of Man. The C1aimant being an Isle of Man company. The negotiations of any contract within the established worldwide network of companies was also conducts (sic) through the C1aimantand therefore the C1aimanthas the c/osest real connection with the variety of contracts which were entered into with the Defendants.As such the Isle of Man has a real and proper connection with the Settlement Agreement and with the contracts establishing athe (sic) the worldwide structure of companies and it is due to the international element of this matter that the Isle of Man has the closest real connection with the matter as a whole. N

6. l have quoted that section with the errors remaining.

7. It is stated that the Applicant believesthat the facts stated are true.

8. In earlier communications namely a letter dated the i h October 2009

from Dougherty Quinn, the Advocates acting for the Claimant, variousdocumentation was filed induding a daim form, application notice and adraft order. The statement of truth had not been signed at that stage.The draft order endosed referred ta "the Court considering that theClaim is brought in respect of a contract governed by Manx law" - thatof course is a different ground to the ground specified in the actualapplication notice.

9. The Claim Form refers very briefly to the details of the daim as''Recoveryof monies due and owing by the Defendants to the Cleiment":

The amount daimed is €8,OOO ,OOO .00. The particulars of daim give

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more details. There is reference to a settlement agreement beingreached on the 24 th January 2009.

10. Paragraph 14 of the particulars of claim state:

''In light of the real connection to the Isle of Man, the fact that Mr.Botvtn': services were provided through Societe De Developpment (sic)International Heine S.A. and also that the same company is wholly owned by the C1aimant,the manies due and owing under the fee note issuedby Mr. Boivin were assigned back to the C1aimant. /1

11. Nowhere in the Claim Form or the Application notice is the identity ofthe agent trading or residing within the jurisdiction specifically anddearly identified.

12. In the documentation attached ta the Claim Form a copy of theSettlement Agreement dated the 24 th January 2009 did not appear. Syemail dated the 22 nd October 2009 from court administration to WalterWannenburgh, one of Miss Pimbley's colleaguesat Dougherty Quinn theadvocates, a request was made that a copy of the SettlementAgreement referred to in the application to the court be forwarded attheir earliest convenience. No such document has been filed. Indeedwhen this matter was first called before the court yesterday MissPimbley indicated to the court that there was not a signed writtensettlement agreement. Miss Pimbley indicated that the contract theClaimant sought to enforce was the Settlement Agreement of the 24 th

January 2009. l have to say that the pleading in respect of thatagreement (which it now transpires on the Claimant's case was an oralagreement) was not very helpfully drafted.

13. The documentation attached to the Claim Form included an assignmentmade on the 21 st July 2009 between "Societe De DeveloppementInternational Heine S.A." a company stated to be incorporated inLuxembourg and the Claimant Simker Limited a company stated to beincorporated in the Isle of Man. Clause 4 of the assignment provided asfollows:

"This Agreement shall be governed by and construed in accordancewiththe laws of the Isle of Man and the parties hereto submit to theexclusivejurisdiction of the Isle of Man High Court."

14. The proposed Defendants were not parties to that assignmentdocument.

15. Also attached to the Claim Form were notices of assignment dated the21 st July 2009 with reference to Isle of Man law.

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Appearancesand submissions

16. Miss Pimbley appeared yesterday and today for the Claimant and l ammost grateful to her for her assistance to the court.

17. When questioned yesterday by the court as to who the agent trading orresiding in this jurisdiction was Miss Pimbley initially stated that theagent was the Claimant. On reflection Miss Pimbley stated that theagent at the time the Settlement Agreement was concluded (24 th

January 2009) was a company incorporated in Luxembourg called"Societe De Developpement International Heine S.A." a company statedto be wholly owned by the Claimant.

18. Miss Pimbley indicated that the Settlement Agreement had not beenreduced into writing. Moreover, it appears that it was not evidenced inwriting. No documents evidencing such agreement had been filed withthe court.

19. During the hearing yesterday l referred Miss Pimbley to the case ofUnion International Insurance Co Ltd v Jubilee Insurance Co Limited [1991] 1 ALL ER 740.

20. l took the preliminary view that that case may be of some relevance andthat l would need to hear Miss Pimbley upon it. In view of thatdevelopment I gave the Claimant an adjournment until 2p.m. today tareflect upon that authority and the position generally.

21. By email of the zs" October 2009 09:39 Miss Pimbley indicated to courtadministration that she had reviewed the case law referred to by thecourt yesterday and contacted her dient. The email continued:

"As such, and in view of this afternoon's Court appointment, l have beenasked by my client to make an application to His Honour DeemsterDoyle to withdraw the Claim Form and Application Notice requestingservice of the same out of the jurisdiction. l am able to make thisapplication to His Honour orally this afternoon or alternatively in writingif His Honour will accept that".

22. Miss Pimbley appeared in court this afternoon and made application onfoot ta withdraw the application for permission ta serve the Claim Formout of the jurisdiction and also to withdraw the Claim Form itself.

Therelevant law and procedure

23. The authorities (including Arquebus Limited (in liquidation) v Rafter judgment 27 th September 2004 and the Appeal Division's judgment inDominator Limited v Gilberson and others 1st May 2009) make it dear

that the discretionary jurisdiction of the court to give permission for theservice of proceedings out of the jurisdiction should be exercised with

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the English White Book on a similar rule in England and Wales. Thecommentary at paragraph 6.37.37 states that the paragraph applieswhere the principal of the agent in question is the defendant and notwhere the principal is the claimant. There ls reference to Union International Insurance Co Ltd v Jubilee Insurance Co Ltd [1991] 1 Ail

ER 740. Phillips J (as he then was) in the Union International case atpage 743 for the sake of clarity, if indeed any clarity was required,implied additional words at the end of the words "a contract which wasmade by or through an agent trading or residing within the jurisdictionon behalf of a principal trading or residing out of the jurisdiction"namely the additional words "and the defendant to be served is thatprincipal".

Determination of the applications to withdraw

30. Having considered the documentation put before the court mypreliminary view, subject to submissions, was that the facts of this casebased on the evidence and information provided to the court did not fallwithin rule 2.41(1)(f) (ii). In my judgment rule 2.41 (l)(f)(ii) is limited tothose cases where the contract was made by or through an agenttrading or residing within the jurisdiction where the agent was acting fora principal and the defendant to be served is that principal.

31. l find it difficult in the circumstances of this case to accept that thecontract referred to (namely the Settlement Agreement of the 24 th

January 2009) was made by or through an agent trading or residing

within the jurisdiction and the defendant to be served is a principal. TheClaimant's own case is that the Claimant or a company controlled andwholly owned by the Claimant was the agent.

32. Moreover, on an initial perusal of the documentation l was not satisfiedthat the Island was the proper place in which ta bring the daim. Forthese reasons if the Claimant had persisted in the application forpermission to serve the Claim Form out of the jurisdiction it is likely that,subject ta submissions, 1 wou Id have dismissed it.

33. Having now placed the court's position on record l have no hesitation inpermitting the Claimant to withdraw. The Claimant's application forpermission ta serve the Claim Form outside the jurisdiction ls herebymarked withdrawn as indeed is the Claim Form.

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ISLE OF MAN COURTSn 1 OF JUSTICE

Q.2i rv:.:1/~ 20/0EXAMINED AND CERTIFIED ATRUE COPY

-R~ OEPUTY ASSISTANT CHIEF REGISTRAR

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Rapport de Brigitte