Knauf UK GmbH v British Gypsum Ltd & Anor [2001] EWCA Civ 1570 (24 October 2001)

Knauf UK GmbH v British Gypsum Ltd & Anor [2001] EWCA Civ 1570 (24 October 2001)

There cannot be a good reason for ordering alternative service on a foreign defendant when the order is designed to subvert the principles of international conventions governing service and jurisdiction, in the absence of any difficulty effecting service. The desire to advance the date of seisin for jurisdictional advantage is not sufficient. Furthermore, failure to disclose a potentially material exclusive jurisdiction clause when seeking such an order is a breach of the duty of candour and justifies setting aside the order.

Citation
[2001] EWCA Civ 1570
Parties
Claimant/respondent: Knauf UK GmbH; First Defendant: British Gypsum Limited; Second Defendant/appellant: Wellkisten und Papierfabriken Fritz Peters & Co KG
Jurisdiction
England and Wales
Judgment Date
24 October 2001
Procedural Posture
Appeal From Queen's Bench Division, Commercial Court / Court of Appeal Judgment
Outcome
Appeal allowed; order for alternative service set aside.
Legal Topics
Service of Process, Jurisdiction, Brussels Convention, Exclusive Jurisdiction Clauses, Non Disclosure, Lis Pendens
Civil Procedure Private International Law Commercial Law Service of Process Jurisdiction Brussels Convention Exclusive Jurisdiction Clauses Non Disclosure +1 more

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Parties

Knauf UK GmbH

Claimant/respondent

British Gypsum Limited

First Defendant

Wellkisten und Papierfabriken Fritz Peters & Co KG

Second Defendant/appellant

Procedural Posture

Appeal From Queen's Bench Division, Commercial Court / Court of Appeal Judgment

Legal Issues

  1. 1 Whether advancing the date of English court seisin over a foreign domiciliary is a 'good reason' for alternative service under CPR Part 6.8
  2. 2 Whether an exclusive jurisdiction clause mandates jurisdiction in Germany under Article 17 of the Brussels Convention
  3. 3 Whether failure to disclose the exclusive jurisdiction clause to the court when seeking alternative service should set aside the order

Ratio Decidendi

There cannot be a good reason for ordering alternative service on a foreign defendant when the order is designed to subvert the principles of international conventions governing service and jurisdiction, in the absence of any difficulty effecting service. The desire to advance the date of seisin for jurisdictional advantage is not sufficient. Furthermore, failure to disclose a potentially material exclusive jurisdiction clause when seeking such an order is a breach of the duty of candour and justifies setting aside the order.

Court Disposition

Appeal allowed; order for alternative service set aside.

Orders

  • Order for alternative service on Peters set aside.
  • Provisional order for costs: appellants to have costs of the appeal and costs below other than Article 17 issue; Article 17 costs to remain with respondents.