Orexim Trading Ltd v Mahavir Port and Terminal Private Ltd & Ors [2017] EWHC 2663 (Comm) (27 October 2017)

Orexim Trading Ltd v Mahavir Port and Terminal Private Ltd & Ors [2017] EWHC 2663 (Comm) (27 October 2017)

Permission for service out of the jurisdiction in respect of the s423 Insolvency Act and declaration claims against MPT and Zen must be set aside because those claims do not fall within any available gateway under CPR PD6B para 3.1. The freezing injunction against Zen must also be discharged. The Damages Claim against MPT may proceed due to the English jurisdiction clause, but the other claims cannot be served out. Serious issues to be tried exist on the merits, but jurisdictional gateways are not satisfied.

Citation
[2017] EWHC 2663 (Comm)
Parties
Claimant: Orexim Trading Limited; First Defendant: Mahavir Port and Terminal Private Limited; Second Defendant: Singmalloyd Marine (S) Pte Limited; Third Defendant: Zen Shipping and Ports India Private Limited
Jurisdiction
England and Wales
Judgment Date
27 October 2017
Procedural Posture
Commercial Court Claim (jurisdiction/service Out and Freezing Order) / Interlocutory Application to Set Aside Permission for Service Out and Freezing Order
Outcome
Permission for service out of the jurisdiction in respect of the s423 and declaration claims against MPT and Zen set aside; freezing injunction against Zen discharged; Damages Claim against MPT may proceed.
Legal Topics
Jurisdiction, Service Out of Jurisdiction, Freezing Injunction, Transactions at Undervalue, Insolvency Act 1986 S423, Contractual Damages, Forum Non Conveniens, Non Disclosure
Civil Procedure Commercial Law Insolvency Jurisdiction Service Out of Jurisdiction Freezing Injunction Transactions at Undervalue Insolvency Act 1986 S423 +3 more

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Parties

Orexim Trading Limited

Claimant

Mahavir Port and Terminal Private Limited

First Defendant

Singmalloyd Marine (S) Pte Limited

Second Defendant

Zen Shipping and Ports India Private Limited

Third Defendant

Procedural Posture

Commercial Court Claim (jurisdiction/service Out and Freezing Order) / Interlocutory Application to Set Aside Permission for Service Out and Freezing Order

Legal Issues

  1. 1 Whether the English court has jurisdiction to hear claims under s423 Insolvency Act 1986 and for a declaration regarding ownership of a vessel against foreign defendants
  2. 2 Whether the relevant claims fall within any gateway for service out of the jurisdiction under CPR PD6B para 3.1
  3. 3 Whether there is a serious issue to be tried on the merits of the claims

Ratio Decidendi

Permission for service out of the jurisdiction in respect of the s423 Insolvency Act and declaration claims against MPT and Zen must be set aside because those claims do not fall within any available gateway under CPR PD6B para 3.1. The freezing injunction against Zen must also be discharged. The Damages Claim against MPT may proceed due to the English jurisdiction clause, but the other claims cannot be served out. Serious issues to be tried exist on the merits, but jurisdictional gateways are not satisfied.

Court Disposition

Permission for service out of the jurisdiction in respect of the s423 and declaration claims against MPT and Zen set aside; freezing injunction against Zen discharged; Damages Claim against MPT may proceed.

Orders

  • Permission for service out of the jurisdiction in respect of the s423 and declaration claims against MPT and Zen is set aside.
  • Freezing injunction against Zen is discharged.