Kaefer Aislamientos v AMS Drilling

If a claimant can satisfy the court that England is the proper place to bring his claim against a defendant who is out of the jurisdiction and who will have to be served there with the permission of the court,1 and that the merits of his claim are not so transparently weak that it should be struck out, what else must he do to get permission to serve the defendant? The answer is that he must satisfy the court, one way or another, that the claim falls under one or more of the sub-paragraphs of a Practice Direction,2 or “gateways”, which provide the particulars for the general rule in CPR 6.36. As it is often unrealistic to say that the requirements of a gateway to which the claimant points are or are not definitively satisfied, the courts have always had to read the rules so that they do not ask the impossible. In a supremely practical piece of statutory interpretation, the words “there is a good arguable case that” have long been read as though written into the relevant rules in invisible ink. As Dicey & Morris put it, not so long ago: “The standard to be applied in considering whether the jurisdiction of the court had been sufficiently established under one or more of the heads of Order 11 r.1(1)3 was that of the good arguable case, ie a strong case for argument.”4 However, 20 years ago the Court of Appeal had a case in which the jurisdiction of the English court over Swiss defendants did not depend on permission to serve out, whereas jurisdiction over Liechtenstein, Dutch Antilles and Panamanian co-defendants did depend on permission (as well as on England’s being the natural forum). In a judgment which had to deal with both classes of defendant, Waller LJ said that in permission (non-Swiss) cases, the claimant needed to make out a good arguable case for the jurisdiction on which he relied: quite right. He said in relation to the Swiss defendants that the claimant needed to have “a much better argument on the material available”: also right enough.5 But he added that a good arguable case meant having a much better argument on the material available.6 That was the foot fault, and the umpire missed it. A requirement that the claimant have a much better argument on the material available is precisely correct where the claimant relies on the jurisdictional rules of the Brussels/Lugano system, but the test was otherwise where the claimant depended on judicial permission, and the suggestion that these two expressions were two ways of saying the same thing was not helpful. Be that as it may, the