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ORD 09/0030IN THE HIGH COURT OF JUSTICE OF THE ISLE OF MANCIVIL DIVISIONORDINARY PROCEDURE BETWEEN:-SIMKERLIMITEDClaimantAndD.C.N.INTERNATIONALS.A.AndD.C.N.S. S.A.AndTHALESS.A. DefendantsAndINTHEMATIER of the ClaimFormof the Claimantdated the i h October2009AndIN THE MATIER of the Application Notice of the Claimant dated the lS th October2009 ------------------------ Transcript of a judgmentof His Honour the Deemster Doyledelivered at Douglas on the 28th day of October 2009 ---------------- Introduction 1. Simker Limited (the \'Claimant'') applies to withdraw its daim form andits 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 endeavourtomake a fresh application for service out and it wouId be useful for theparties to have this judgment available in order that any freshapplication for service out can be consideredin the context of this failedapplication for permissionto serveout of the jurisdiction.1 2. Sy application notice dated the is October 2009 the Claimantappliedfor permissionto 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 tohaveaddressesin 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 reasonableprospectof 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 C1aimantbeing 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/osestreal connection with the varietyof 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 asa whole. N 6. l havequoted 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 2 more details. There is reference to a settlement agreement beingreachedon the 24 th January 2009.10. Paragraph14of 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 assignedback 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 MissPimbley'scolleaguesat 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 casewas 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. Clause4 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 referenceto Isle of Manlaw. 3 Appearancesandsubmissions 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 of Union International Insurance Co Ltd v Jubilee Insurance Co Limited [1991] 1 ALL ER740.20. 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 in Dominator Limited v Gilberson and others 1 st May 2009) make it dearthat the discretionary jurisdiction of the court to give permission for theservice of proceedings out of the jurisdiction should be exercised with 4
