NOVUS AVIATION LTD V ONUR AIR TASIMACILK AS

[2009] EWCA Civ 122, Court of Appeal, Sir Mark Potter, Lord Justice Wilson and Lord Justice Lawrence Collins, 27 February 2009

Conflict of laws – Jurisdiction – Contract governed by English law – No other connection with England – Whether permission for service outside the jurisdiction should have been granted – Whether judge had applied incorrect principles – Civil Procedure Rules, 6.20(5)(c)

The Court of Appeal here refused to overturn the judgment of Aikens J upholding the grant of permission to the claimant for service of proceedings outside the jurisdiction. The claimant was a Bahamian company with offices in Switzerland and the Lebanon; it did some, but comparatively little, business in England. The defendant was a Turkish airline based in Istanbul and its only connection with England was that it had some flights. In 1999 the parties entered discussions, under which the claimant would try to secure business for the defendant from another airline, the name to be disclosed by the claimant only when a final agreement was reached. An agreement governed by English law was reached in July 1999, by fax sent by the defendant in Istanbul to the claimant in Istanbul. The claimant asserted that the defendant had repudiated the agreement and sought permission to serve proceedings in Istanbul, on the basis that the agreement was governed by English law (CPR 6.20(5)(c), now CPR PD 6B, para 3.1(6)(c)). The defendant asserted that the agreement had terminated in 2005, and argued that the English court should decline jurisdiction because the only connection with England was that the agreement was governed by English law. The Court of Appeal held that it was not appropriate to interfere with the judge’s discretion to permit service out. The judge had not disregarded the principle that England had to be shown to be the natural forum, and had considered the relevant authorities, which showed that the applicable law was a relevant consideration. Again, the judge had not effectively equated the choice of English law and the use of English language with a choice of England as the forum.