Tag: CHEP Equipment Pooling BV v ITS Ltd & Ors

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Chep Equipment. Brussels Ia’s forum prorogati (with renvoi) rule once again does not make the cut.

In Chep Equipment Pooling BV v ITS Ltd & Ors [2022] EWHC 741 (Comm), Salter DJ untangles a myriad of jurisdictional gateways, partially tortious (with reference to UKSC Brownlie, and to CJEU Bier etc where relevant), partially contractual and subject to choice of court. A forum non challenge is rejected.

The choice of court discussion is interesting in particular for at 48 the judge mixes the forum prorogati rule of Article 25 BIa juncto its recital 20. One of the defendants claims the privilege of an A25 choice of court to establish compulsory Belgian jurisdiction. The judge notes that the agreement of which the clause is part, is governed by Belgian law and

The Audit Agreement, although in the English language, is governed by Belgian law. Rightly, neither party had tendered evidence of the principles of interpretation of jurisdiction clauses under Belgian law. At this stage of the proceedings, reliance on the presumption of similarity with English law is sufficient: see Brownlie (supra) at [157], per Lord Leggatt. In those circumstances, I must simply apply to this provision the principles of interpretation articulated in Fiona Trust and Holding Corpn v Privalov [2007] UKHL 40, [2007] Bus LR 1719.

This is a touch incorrectly formulated. Per BIa, the existence of consent and its expression are governed by A25, not by reference to any national law. The validity of consent by contrast does rely on national law however it is not the lex contractus of the underlying agreement which is relevant but rather the lex fori prorogati (also Belgian law), with renvoi. The judge in my view cannot rely on English law to judge the validity of choice of court at good arguable case level: once jurisdiction settled, it will not be allowed to be revisited. Even at this stage, therefore, per BIa the enquiry arguably must be made under Belgian law. Whether there was actually any suggestion that under Belgian (and subject to renvoi) law consent may not have been given, is not clear from the judgment.

Claimants tried to argue that the claim does not arise ‘out of or in connection with’ the Audit Agreement that contains choice of court however the judge disagrees. This part of the claim therefore must be litigated in Belgium (and an A8(1) anchor would of course not assist to keep the proceedings in England).

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.10.4.

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CHEP. When employees’ alleged conspiracy ‘relates to’ contract of employment.

CHEP Equipment Pooling BV v ITS Ltd & Ors [2021] EWHC 2485 (Comm) concerns in the main when a claim between two parties who are in a relation of employment, ‘relates to’ that employment contract. (In the case concerned, leading to lack of jurisdiction against one of the defendants).

At issue is whether 3 former senior employees had essentially defrauded claimant by negotiating on its behalf, price-inflated audit and supply agreements with corporations which those employees (in)directly owned and /or controlled. Causes of action are breach of fiduciary duty; dishonest assistance of the breaches of fiduciary duty by the other former employees; and unlawful means conspiracy.

Whether any of these claims engage A22 jurisdiction needs to be assessed viz each claim separately: [44]: Cuneo Resources NV and others v Daskalakis and others [2019] EWHC 87 (Comm).  Among others Bosworth was discussed in the subsequent analysis. After reviewing ia the employment history of defendant with the claimant, and the bond between the alleged dishonesty and the employment contract,  Jacobs J concludes [107]

the claims relate to Mr de Laender’s contract of employment, and also …the connection between Mr de Laender’s contract and the conduct relied upon is material. It cannot be described as tenuous, or a small part of the picture, or simply part of the history. I also consider that the legal basis of the claims can reasonably be regarded as a breach of his contract, so that it is indispensable to consider the contract in order to resolve the matters in dispute.

Obiter the judge reviews locus delicti commissi and locus damni under A7(2). For Handlungsort, Jacobs J holds that the claimant has the better of the argument that that is located in England: particularly seeing as the main alleged conspirator was domiciled in England at the time the various strands of the action materialised. For locus damni – Erfolgort, the conclusion [133] is one of Mozaik per Shevill, particularly in view of a corporate reorganisation (incl a move to England) which occurred midway through the conspiracy.

Geert.

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