Noble Caledonia Limited v Air Niugini Limited [2017] EWHC 1095 (QB) & [2017] EWHC 1393 (QB) – Warsaw Convention, Service out of Jurisdiction

This blog post is by George White of 12 King’s Bench Walk.

This claim arose out of a claim in breach of contract against a foreign airline (‘D’). A fuller case commentary is available here.

Background

D lacked offices of its own within the jurisdiction, but C served the claim form at the premises of D’s general sales agent, near Gatwick Airport. C relied on CPR r.6.9(2) (Category 7) which permits service on a foreign company at: “Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.”

D applied to challenge the Court’s jurisdiction under CPR Part 11, arguing that (1) C had not served the claim form validly, (2) C’s claim was subject to the Warsaw Convention and the jurisdictional requirements thereunder, which D argued were unsatisfied, (3) alternatively, England and Wales was forum non conveniens.

C resisted the application and, in response, cross-applied for permission to (1) amend the Particulars of Claim to include an alternative claim pursuant to the Warsaw Convention and (2) to serve proceedings outside the jurisdiction, if so required.

As such, the Judge had to decide:

  • Whether D “carr[ied] on its activities” or had a “place of business…within the jurisdiction” within the meaning of CPR r.6.9(2) (category 7);
  • Whether C had a good arguable case that the claim was not subject to the Warsaw Convention and therefore its strict jurisdictional gateways; and if not
  • Whether C’s claim satisfied one of those jurisdictional gateways. Specifically, whether FDL’s premises amounted to “an establishment by which the contract has been made” within Article 28 of the Warsaw Convention;
  • Alternatively, whether England and Wales was forum non conveniens.

The Judge accepted D’s position on issues (1)-(3) so did not consider (4). C’s service of the claim form was consequently set aside. The Court also refused permission to serve proceedings outside the jurisdiction and permission to amend the Particulars of Claim. However, the Judge noted that the outcome was somewhat anomalous and gave permission to appeal the orders in respect of both applications.

Points of Interest on Appeal

C’s appeal raises several interesting points:

  • What is the proper interpretation of CPR r.6.9(2) (Category 7)? In particular, is C’s subjective knowledge relevant to that test?
  • Was the Judge correct to hold that the Warsaw Convention (and therefore the jurisdictional requirements thereunder) applied to the claim rather than finding that C had a good arguable case that it did not?
  • What is the meaning of Art. 28 of the Warsaw Convention, insofar as it permits a claim to be brought where there is situated “an establishment by which the contract was made”?

William Audland QC, representing C, discusses the case in further detail here.

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