David Lewis QC and Andrew Dinsmore appeared for the Tenth Defendants (“Straits”) pursuing a jurisdiction challenge in E, D & F Man Capital Markets Limited v Come Harvest Limited & Others  EWHC 1661 (Comm).
The underlying case concerns an alleged US$284m fraudulent conspiracy arising out of forged warehouse receipts said to relate to nickel held by a singaporean warehouse operator at a number of warehouses in Asia.
The crux of the challenge was that, at the time that permission to serve out was granted ex parte, the claimant was pursuing pre-action disclosure application against Straits in Singapore whilst also seeking to join Straits to the English proceedings. This was in circumstances where a jurisdictional pre-condition to obtaining pre-action disclosure in Singapore was an intention to bring substantive proceedings in Singapore. As such, Straits argued that England was not the proper place to determine the dispute because (i) it appeared that there were going to be parallel proceedings, (ii) the claimant should be held to its choice to bring an action in Singapore, and (iii) the key connecting factors were with Singapore. The claimant argued that by the time of the inter partes hearing the other nine defendants had submitted to the English jurisdiction (and that two were bound by exclusive jurisdiction clauses) with the result that the avoidance of a multiplicity of actions should be an overriding factor in favour of England.
The court considered and distinguished the recent Supreme Court decision of Lungowe v Vedanta  2 WLR 1051 on the relevance of avoidance of multiplicity of proceedings and held that such avoidance was an overriding consideration in favour of England in this case, with the result that the jurisdiction challenge should be dismissed. The judgment also covers procedural arguments as to amendments to pleadings between ex parte hearing and inter partes jurisdiction hearings, as previously considered in NML v Argentina  UKSC 31, as well as interesting issues on governing law under Article 4 and Article 10 of the Rome II Regulation.