W Nagel (a firm) v Pluczenik& Ors [2022] EWHC 1714 (Comm) (04 July 2022)

W Nagel (a firm) v Pluczenik& Ors [2022] EWHC 1714 (Comm) (04 July 2022)

The claimant failed to provide full and frank disclosure of the Belgian Interim Judgment and its findings on jurisdiction, which was material and deliberate. England is not clearly or distinctly the appropriate forum as the Belgian court has accepted jurisdiction, the issues overlap with ongoing Belgian proceedings, and the risk of inconsistent judgments is high. Even if the merits were arguable, the non-disclosure and forum conveniens analysis require the setting aside of service out of jurisdiction and a stay of proceedings.

Citation
[2022] EWHC 1714 (Comm)
Parties
Claimant: W Nagel (A Firm); First Defendant: Chaim Pluczenik; Second Defendant: Pluczenik Diamond Company NV; Third Defendant: Varda Shine
Jurisdiction
England and Wales
Judgment Date
04 July 2022
Procedural Posture
Commercial Court Claim / Application to Set Aside Service Out of Jurisdiction and Stay Proceedings
Outcome
Applications granted; service out of jurisdiction set aside and proceedings stayed.
Legal Topics
Abuse of Process, Jurisdiction, Forum Non Conveniens, Full and Frank Disclosure, Service Out of Jurisdiction, Res Judicata
Private International Law Civil Procedure Tort Abuse of Process Jurisdiction Forum Non Conveniens Full and Frank Disclosure Service Out of Jurisdiction +1 more

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Parties

W Nagel (A Firm)

Claimant

Chaim Pluczenik

First Defendant

Pluczenik Diamond Company NV

Second Defendant

Varda Shine

Third Defendant

Procedural Posture

Commercial Court Claim / Application to Set Aside Service Out of Jurisdiction and Stay Proceedings

Legal Issues

  1. 1 Whether the claimant failed to provide full and frank disclosure on a without notice application for service out of jurisdiction
  2. 2 Whether England is the appropriate forum (forum conveniens) for the claim
  3. 3 Whether there is a serious issue to be tried regarding the tort of abuse of process in the context of foreign proceedings

Ratio Decidendi

The claimant failed to provide full and frank disclosure of the Belgian Interim Judgment and its findings on jurisdiction, which was material and deliberate. England is not clearly or distinctly the appropriate forum as the Belgian court has accepted jurisdiction, the issues overlap with ongoing Belgian proceedings, and the risk of inconsistent judgments is high. Even if the merits were arguable, the non-disclosure and forum conveniens analysis require the setting aside of service out of jurisdiction and a stay of proceedings.

Court Disposition

Applications granted; service out of jurisdiction set aside and proceedings stayed.

Orders

  • Order for service out of jurisdiction set aside against First and Second Defendants.
  • Proceedings against Third Defendant stayed on forum non conveniens grounds.