Jefferies International Limited v Ashenden Finance SA

Neutral Citation Number: [2025] EWHC 1441 (Comm) IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES LONDON CIRCUIT COMMERCIAL COURT (KBD) Case No: LM-2024-000238 Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL Date: 16 June 2025 Before: HIS HONOUR JUDGE KEYSER KC sitting as a Judge of the High Court - - - - - - - - - - - - - - - - - - - - - Between: JEFFERIES INTERNATIONAL LIMITED - and - ASHENDEN FINANCE SA Claimant Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sandy Phipps (instructed by Herbert Smith Freehills Kramer LLP) for the Claimant Bibek Mukherjee (instructed by Stephenson Harwood LLP) for the Defendant Hearing dates: 14 May 2025 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10am on 16 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. HIS HONOUR JUDGE KEYSER KC HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA Judge Keyser KC : Introduction 1. 2. 3. 4. 5. The claimant (“Jefferies”) is a company incorporated in England and Wales. It is authorised and regulated by the Financial Conduct Authority and is the main UK trading subsidiary of Jefferies Financial Group Inc, an investment banking and capital markets firm based in the United States of America. The defendant (“Ashenden”) is a financial institution incorporated in Switzerland. The two companies have been conducting trades with each other since 2015; between 2015 and 2019 they conducted more than 500 trades. In these proceedings, Jefferies claims from Ashenden US$619,222.22 as the price payable by Ashenden for its purchase of interests in certain Perpetual Tier 1 Contingent Write Down Capital Notes (“the Notes”) issued by Credit Suisse AG (“the Trade”). The Trade took place on 16 March 2023. Settlement was due on 20 March 2023. On 19 March 2023 UBS Group AG agreed to acquire Credit Suisse AG. In contemplation of that acquisition, on 19 March 2023 the Swiss regulator declared that a Write-Down Event had occurred, with the result that the Notes were cancelled immediately and that Jefferies was unable to deliver or transfer any interest in the Notes. Jefferies’ case is that, by agreeing to purchase the Notes, Ashenden accepted and agreed to bear the risk that a Write-Down Event would occur and that the Notes would be cancelled, and that Ashenden is therefore liable to pay the price. Jefferies commenced the proceedings on 12 September 2024 and served the claim form and particulars of claim on Ashenden out of the jurisdiction in Switzerland. The following applications have been made: i. ii. Ashenden’s application dated 31 January 2025 for a declaration that this court has no jurisdiction to try the claim and for orders that service of the claim form and particulars of claim be set aside and that the claim be stayed (“the Jurisdiction Application”); Ashenden’s application dated 30 April 2025 (made without prejudice to the Jurisdiction Application) for an order striking out the claim (“the Strike-out Application”); iii. Jefferies’ application dated 2 May 2025 for permission to amend the claim form and particulars of claim (“the Amendment Application”). The central issue on the Jurisdiction Application is whether Jefferies’ Terms of Business, which contain an exclusive jurisdiction clause, were incorporated into the contract for the Trade: this is “the Incorporation Issue”. The central issue on the Strike-out Application is whether Ashenden has obligations under the contract as principal or, rather, was acting only as agent or intermediary for another principal: this is “the Agency Issue”. (I should note here that Ashenden also argues that the correct conclusion on the Agency Issue provides another basis for holding that this court has no jurisdiction.) The Amendment Application is largely dependent on the other two applications, but it also raises a discrete issue concerning construction of the Terms of Business: this is “the Construction Issue”. HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA 6. 7. Ashenden relies on four witness statements of Benjamin James Sigler, a solicitor and a partner in Stephenson Harwood LLP, who has conduct of the proceedings on behalf of Ashenden. In response, Jefferies relies on two witness statements of Christopher Anthony Bushell, a solicitor and partner in Herbert Smith Freehills Kramer LLP, who has conduct of the proceedings on behalf of Jefferies. In the remainder of this judgment, I shall proceed as follows. First, I shall set out the most relevant provisions of the Terms of Business, which Jefferies says were incorporated into the contract for the Trade. Second, I shall consider the Jurisdiction Application: in that context, I shall address the Incorporation Issue; I shall also address the Agency Issue insofar as it bears on the Jurisdiction Application. Third, I shall consider the Strike-out Application, which turns on the Agency Issue. Fourth, I shall consider the Amendment Application. 8. I am grateful to Mr Phipps, counsel for Jefferies, and Mr Mukherjee, counsel for Ashenden, for their rigorous and helpful submissions. The Terms of Business 9. 10. Since the parties have been doing business together, Jefferies’ Terms of Business have gone through several iterations: 2014; 2016; January 2018; July 2018; November 2019; July 2021. Most of the relevant provisions were materially identical in all the iterations, including in the final two iterations, though in some instances the numbering was different. I shall set out the text in the July 2021 Terms of Business, noting as appropriate where the earlier texts had material differences. Clause 1.1 provides that the Terms of Business “apply to all Services (as defined in clause 4) we may carry on with or for you from time to time.” Clause 4.1 defines “Services” to include “dealing, settlement, clearing and custody services … in respect of all investments … including executing orders on your behalf, receiving and transmitting orders …” There is no dispute that Jefferies’ entry into the Trade was within the definition of Services. 11. Clause 1.3 provides in part: “1.3. In these Terms, ‘we’, ‘us’, ‘our’ and ‘Jefferies’ means Jefferies International Limited and its respective branches, officers, employees and directors, and ‘you’ and ‘your’ means you and/or (as relevant) your Principal(s). … ‘Principal’ means any person or entity on behalf of which you are to enter as agent into transactions with us …” (In the 2014 iteration, the corresponding clause 1.2 did not define “Principal”. But clause 5.1 began: “Where you are an agent or otherwise acting on behalf of or for the benefit of any other person (‘the Principal’) …”) 12. Clause 1.4 provides: “These Terms are legally binding and shall take effect after receipt by you of the same and/or upon you beginning or continuing to undertake business with us.” HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA 13. Clause 23.6 provides for changes to the Terms of Business: “23.6 We may make changes to our Terms, policies and other documentation referred to in these Terms from time to time. We will notify you of any changes to our Terms, Order Execution Policy and execution arrangements, Conflicts Policy, Complaints Policy, Costs and Charges Information Document and any policy or document or Schedule referred to in these Terms by posting updated versions of the applicable documents on www.jefferies.com and, where there is a material change, by giving you written notice. Any such change will become effective when the updated document is posted on our website or, in respect of material changes, on a date to be specified in the notice which will be at least ten (10) Business Days after the notice is sent to you unless (i) it is impractical to do so or (ii) otherwise required by Applicable Law.” From the January 2018 iteration onwards, clause 26.1 provides: “26.1. All correspondence, notices, certificates and statements of account (‘Notices’) may be provided to you by whatever means unless otherwise required by Applicable Law. Any Notices from us to you shall be sent to the last mailing address, facsimile number or email address held for you on our records (as applicable). You confirm that you have regular access to the internet and consent to information including, without limitation; information about amendments to our Terms and other documents referred to in these Terms (including the Order Execution Policy, Costs and Charges Information Document, Conflicts Policy and Complaints Policy), information about the nature and risks of investments and other information concerning the Services provided to you which we will post on our website at www.jefferies.com or such other website as we may from time to time notify to you.” 14. The exclusive jurisdiction provision, on which Jefferies relied when effecting service out of the jurisdiction, is clause 29.1: “29.1 You and we agree that these Terms (and any non- contractual obligations, disputes or claims arising out of or in connection with them) shall be governed by and construed in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts.” 15. Clause 5, headed “Acting as Intermediary”1, deals with the position where the counterparty is acting for a third party. 1 Clause 2.2 provides in part: “Headings are included for convenience only and shall not affect the interpretation of these Terms.” HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA “5.1 Where you are an agent or otherwise acting on behalf of or for the benefit of a Principal, then, even if you disclose that fact and/or the identity of that Principal to us, we will (save to the extent provided in this clause below) treat you alone as our client for all purposes relating to these Terms, and (subject to Applicable Law) we shall not owe any regulatory obligations to the Principal. 5.2 You, as agent for your Principal and on your own behalf, retain full responsibility for making all investment decisions with respect to any Principal. 5.3 You undertake and warrant where you enter into and execute a transaction pursuant to these Terms in your capacity as agent for, or on behalf of, a Principal, that: 5.3.1 you are expressly authorised by, or otherwise acting within the scope of the authority you have received from the Principal to enter into that transaction for, or on behalf of, the Principal; 5.3.2 the Principal has full power, authority and legal capacity to (a) enter into the transaction (b) perform all obligations contemplated by these Terms and (c) make the representations and warranties set out in clause 16; 5.3.3 when performing the transactions and activities contemplated by these Terms, you will procure that the Principal complies with all Applicable Law; 5.3.4 any information you provide or have provided to us in respect of your or the Principal’s financial position, domicile or other matter is accurate and not misleading; 5.3.5 in entering into any transaction for, or on behalf of, a Principal, you have no reason to believe that the Principal will not be able to perform any settlement obligations thereunder; 5.3.6 you will procure the performance by the Principal of all obligations and liabilities arising under or by virtue of these Terms; and 5.3.7 you are now and will be at all times in the future in compliance with Applicable Laws concerning the detection of financial crime, prevention of terrorism and anti-money laundering, and, in particular, you (a) have carried out customer due diligence on the Principal in accordance with Applicable Law; (b) consent to our reliance on such customer due diligence for the purposes of regulation 39 of the Money Laundering Regulations 2017; and (c) will HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA retain any records resulting from such customer due diligence for a period of at least 5 years from the date of any relevant transactions or the end of your business relationship with the Principal (as applicable) and, where required in order to satisfy our regulatory obligations, you will make available to us (immediately) any records regarding the Principal (and any beneficial owner) which you obtained when carrying out customer due diligence and any other information as we may require. 5.4 Where you have notified us of the identity of the Principal to which an instruction relates, the contractual rights and obligations arising under these Terms (other than under this clause 5) in relation to any transaction entered into pursuant to such an instruction shall be rights and obligations between us and the Principal alone. If you do not provide us with actual notice of the Principal account to which an instruction relates, we reserve the right to hold you liable to us as Principal in relation to any transaction entered into pursuant to such instruction. 5.5 You undertake, as agent for each Principal and on your own behalf, to notify us immediately if any two or more Principal accounts relate to the same Principal, in which case we shall administer such accounts as belonging to the same Principal. We shall, subject to these Terms, administer Principal accounts which we reasonably believe relate to two different Principal’s separately. 5.6 We shall in respect of each Principal be entitled to set off any amount at any time owing from the relevant Principal account on any account referable to that Principal against any amount owing by us to that Principal or standing to the credit of the relevant Principal on any account which is referable to that Principal and any security, guarantee or indemnity given to us by or in respect of the relevant Principal for any purpose shall extend to any amount owing from that Principal after the exercise of such right. 5.7 Where we exercise any right of set-off, security or lien against a Principal of yours, we will only do so in respect of liabilities due to us by that Principal. We will not use the assets of your Principal in any way whatsoever to meet the liabilities due to us from a different Principal of yours. 5.8 If in relation to any Principal of yours an event of default occurs under clause 17, you undertake to: 5.8.1 promptly disclose the address and identity of such Principal; and HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA 5.8.2 take all reasonable steps to assist us in rectifying such failure including instituting legal proceedings against any underlying Principal of yours.” 16. Clause 17 provides in relevant part: “17.1 An ‘Event of Default’ shall occur where: 17.1.1 (i) you fail to make any payment due to us or to deliver any securities due to us (or agents used by us); or (ii) you fail to perform any other obligation owed to us; or (iii) any representation or warranty you make to us is false or misleading either under these Terms or under any other agreement between you and us; or (iv) we for any reason whatsoever reasonably deem it necessary or desirable for our protection; 17.1.2. you become unable to pay your debts as they fall due or become insolvent or bankrupt or become the subject of any insolvency, bankruptcy or administration proceedings under any Applicable Law; or 17.1.3. a winding-up resolution is passed or a winding-up or administration order is made in respect of you or a similar petition is filed by or against you or if notice is given of a general meeting of your creditors or any similar event or a receiver, liquidator, administrator or similar official is appointed in respect of you or any of your property under any applicable rules.” The Jurisdiction Application 17. Jefferies effected service out of the jurisdiction, without permission, in reliance on CPR r. 6.33(2B), which in relevant part provides as follows: “(2B) The claimant may serve the claim form on a defendant outside the United Kingdom where, for each claim made against the defendant to be served and included in the claim form— … (b) a contract contains a term to the effect that the court shall have jurisdiction to determine that claim; or (c) the claim is in respect of a contract falling within sub- paragraph (b).” 18. “The relevant question is whether there is a good arguable case that there is a contract containing a term that the English court has jurisdiction to determine the claim and HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA that the dispute falls within the scope of the jurisdiction agreement”: Pantheon International Advisors Ltd v Co-Diagnostics, Inc [2023] EWHC 1984 (KB) at para 15(i) (Master Stevens). 19. In Goldman Sachs International v Novo Banco SA [2018] UKSC 34, [2018] 1 WLR 3683, Lord Sumption, with whom the other Justices agreed, said at para 9: “For the purpose of determining an issue about jurisdiction, the traditional test has been whether the claimant had ‘the better of the argument’ on the facts going to jurisdiction. In Brownlie v Four Seasons Holdings Inc [2018] 1 WLR 192, para 7, this court reformulated the effect of that test as follows: ‘… (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.’ It is common ground that the test must be satisfied on the evidence relating to the position as at the date when the proceedings were commenced.” 20. Jefferies contends that sub-paragraph (b) or sub-paragraph (c) of r. 6.33(2B) applies because the contract between the parties incorporated its Terms of Business, which contained an exclusive jurisdiction provision in clause 29.1. Ashenden’s primary challenge to jurisdiction rests on the contention that the Terms of Business were never incorporated into the contract: this is the Incorporation Issue. The Incorporation Issue 21. Jefferies’ pleaded case as to incorporation in the particulars of claim is as follows, with the proposed amendments shown underlined: “4. The relationship between the parties is governed by the Claimant’s Terms of Business (the ‘TOBs’) as sent and/or notified to the Defendant from time to time. On 2 January 2018, for example, the Claimant provided the Defendant with a copy of its TOBs and made it expressly clear that the relationship between the Claimant and the Defendant was governed by the TOBs. Further, on 3 May 2019 and 23 September 2020 respectively, the Claimant provided the Defendant with a copy of its TOBs dated July 2018 and a copy of its TOBs dated November 2019 (the ‘July 2018 TOBs’ and the ‘November 2019 TOBS’ respectively). HIS HONOUR JUDGE KEYSER KC Approved Judgment … Jefferies International Ltd v Ashenden Finance SA 8. Further, clause 23.6 of the July 2018 TOBs and the November 2019 TOBs provides as follows: ‘We may make changes to our Terms, policies and other documentation referred to in these Terms from time to time. We will notify you of any changes to our Terms, Order Execution Policy and execution arrangements, Conflicts Policy, Complaints Policy, Costs and Charges Information Document and any policy or document or Schedule referred to in these Terms by posting updated versions of the applicable documents on www.jefferies.com and, where there is a material change, by giving you written notice. Any such change will become effective when the updated document is posted on our website or, in respect of material changes, on a date to be specified in the notice which will be at least ten (10) Business Days after the notice is sent to you unless (i) it is impractical to do so or (ii) otherwise required by Applicable Law.’ 9. The TOBs were amended from time to time, and it is averred that such amendments are binding and effective pursuant to clause 23.6 (above). As at the date of the Trade, which was entered on 16 March 2023, the TOBs were last amended in July 2021, (the ‘the July 2021 TOBs’) and are applicable to the Trade. Alternatively, if (which is denied) the said amendments are not binding on the Defendants for any reason, then it is averred that the November 2019 TOBs or the July 2018 TOBs, or another version of the TOBs sent and/or notified to Ashenden on an earlier date, apply to the Trade. In any event there is no material difference between the July 2018 TOBs, the November 2019 TOBs or any other version of the TOBs sent and/or notified to Ashenden and the July 2021 TOBs for the purposes of these proceedings. For brevity, the remainder of these Particulars of Claim will refer to the TOBs without distinguishing between the July 2018 TOBs and the subsequent or any other versions thereof.” 22. Mr Bushell’s evidence is to the following effect. 1) Jefferies’ standard practice when first establishing a trading relationship with a client (the process known as “onboarding”) includes, among other things, sending out a copy of its Terms of Business, which sets out the terms on which it agrees to provide services and do business with its clients. It also publishes its Terms of Business online. Each iteration of the Terms of Business contained, in either clause 1.3 or clause 1.4, the following wording: “These terms are legally binding and shall take effect after receipt by you of the same and/or upon you beginning or continuing to undertake business with us.” HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA 2) On 20 March 2015 Jefferies sent to Ashenden a letter, in terms sent to all its clients, explaining that it had amended its Terms of Business in the light of a policy statement published by the Financial Conduct Authority. The letter read in part: “In light of the above, we write to enclose a CASS Consent Form and to inform you that the current terms of business governing our relationship with you will be amended and replaced. This notice is given to you in accordance with our rights under our existing terms of business. The revised terms of business can be found on www.jefferies.com. A copy of these terms of business which will replace the existing terms of business is attached. Please note that the new terms of business shall become effective ten business days from the date of this letter.” The Terms of Business attached to the letter were the December 2014 iteration. 3) On 30 April 2015 Ashenden signed and returned the CASS Consent Form, which stated in part: “The FCA’s Client Money Rules and Custody Rules require certain matters to be subject to written agreement between us and for this purpose we hereby confirm that: 1. Assets received or held by Jefferies International Limited (‘Jefferies’) for our account in the course of providing Services to us, and which are not provided as collateral, shall be treated as Client Money or Custody Assets pursuant to the FCA’s Client Money Rules or Custody Rules and held as set out in the Terms of Business governing our relationship with Jefferies from time to time (the ‘Terms’)”. 4) On 22 December 2017, in anticipation of the coming into effect of MiFID II, Jefferies sent to Ashenden by email certain “updated documentation which will take effect on 3 January 2018 and will then supersede the versions currently in place”. One of the documents attached was the December 2017 iteration of the Terms of Business. The email said, “The Terms govern the services we may carry on with or for you.” 5) On 29 December 2017 Ashenden sent an email to Jefferies, stating that Ashenden was outside the scope of MiFID as it was located in Switzerland. Jefferies’ reply on 2 January 2018 read in part: “We note your comments below, however, as a client of ours you should by now have received our updated Terms of Business as part of our revised documentation pack which will become effective on 3rd January 2018 and which govern the relationship between our respective entities. I have attached a further copy of this pack for your ease of reference.” HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA Another of the documents in the pack was a pro forma email dated 16 November 2017, which read in part: “The implementation of MiFID II requires us to make certain changes to documentation and policies from 3 January 2018. Therefore we have provided you with two sets of Terms of Business that apply to you in the following way: a. The Terms of Business dated July 2016 will govern the broking and dealing services and connected services which we may carry on with or for you from now up to and including 2 January 2018. b. The Terms of Business dated January 2018 will govern the broking and dealing services and connected services which we may carry on with or for you from 3 January 2018 onwards.” 6) On 3 May 2019, which was around the time when Ashenden started trading convertible bonds with Jefferies, Jefferies sent a further email, which attached, among other things, the July 2018 iteration of the Terms of Business and a Welcome Letter. The Welcome Letter stated that the Terms of Business would “apply to our dealings with you”. The email itself stated that the Terms of Business “will govern the broking and dealing services and connected services which we may carry on with or for you.” 7) A further welcome pack was sent by email on 23 September 2020. The attached Terms of Business were the November 2019 iteration. So far as relevant, both the email itself and the Welcome Letter were in the same terms as those sent in May 2019. 8) The latest iteration of the Terms of Business before 16 March 2023 was that of July 2021, which were posted on Jefferies’ website. Clause 23.6 of the Terms of Business, in every iteration, provided that updated Terms of Business would be posted on the website. 23. As regards the facts, I consider that the issues between the parties are of no great significance for present purposes. Mr Sigler states that Ashenden has no record of receiving the letter of 20 March 2015, and he observes that Jefferies has produced only the pro forma version of the letter but not any version showing Ashenden’s address or any evidence beyond assertion that the letter was sent to Ashenden. (He provides evidence that the CASS Consent Form returned by Ashenden on 30 April 2015 had been sent to it separately by email.) Mr Sigler also refers to the communications on 2 January 2018 and 3 May 2019 as “unsolicited”—a characterisation that is disputed by Jefferies. The main points made by Mr Sigler are, in my view, simply the following: 1) At no point before the Trade had Ashenden stated expressly or by implication that it was agreeing to conduct business with Jefferies on the Terms of Business. 2) None of the prior trades or trade confirmations had purported to be on the Terms of Business or made reference to the Terms of Business. HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA 3) The trade confirmation for the Trade made no reference to Jefferies’ Terms of Business. In fact, the Trade took place on the basis of a simple offer by Ashenden to buy and an acceptance of that offer by Jefferies, without mention of the Terms of Business. 24. Mr Mukherjee’s submissions on behalf of Ashenden can be summarised very briefly, but not I think unfairly, as follows. There are only three ways in which a party’s standard terms of business can be incorporated into a contract: first, by express agreement; second, by incorporation by reference within a contractual document; third, by a course of dealing (skeleton argument, para 19). In this case, there was no express agreement. No contractual documents referred to the Terms of Business; the Terms of Business were merely provided by communications that were not contractual. And Jefferies does not rely on a course of dealing. Therefore, the offer and acceptance in respect of the Trade were simply on “the default rules of contract”. 25. Mr Phipps’s submissions on behalf of Jefferies were to the following effect. Jefferies had repeatedly and expressly brought the Terms of Business to Ashenden’s attention. They were, by their very nature, intended to be contractual; and Jefferies made clear in its communications that they were to govern the relationship thereafter. The absence of mention of the Terms of Business in the trade confirmation or any “contractual document” is irrelevant, because by the time of the Trade they had already been agreed and were by way of a “master agreement”. 26. In my judgment, Jefferies has a good arguable case that the Terms of Business were incorporated into the Trade. That is the extent of the decision I am called on to make; I add, though, that I am of the opinion that the Terms of Business were plainly incorporated. Counsel referred me to a good many cases on incorporation, most of which are very well known and which tend to focus on questions that do not arise in this case (such as whether Party A had done enough to bring the terms to Party B’s attention, or whether the terms were drawn to Party B’s reasonable notice only after the contract was concluded). I do not think it necessary to refer to all of these cases. It will suffice to mention two of those on which Mr Mukherjee relied. 27. Mr Mukherjee placed particular reliance on the decision of the Court of Appeal in Circle Freight International Ltd v Medeast Gulf Exports Ltd [1988] 2 Lloyd’s Rep. 427 (“Medeast”). The plaintiff contended that liability on the defendant’s counterclaim was excluded by a provision in certain standard terms. Reversing the decision at first instance, the Court of Appeal held that the standard terms had been incorporated into the relevant contract: there had been a course of dealing between these commercial companies, in which at least 11 invoices had been sent by the plaintiff, giving notice that business was conducted on the standard terms; this was sufficient notice to incorporate the terms into the relevant contract, although as a matter of fact the defendant had not read the notice and had never asked for a copy of the terms. As I understand it, the primary reason why Mr Mukherjee relied on the case was that it was said to support the conclusion that, unless standard terms were expressly agreed or incorporated by reference in a contractual document, they could only be incorporated by a prior course of dealing. 28. I do not think that either Medeast or sound principle avails Ashenden. It is instructive to see why the Court of Appeal in Medeast thought that the judge at first instance had HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA reached the wrong conclusion. The judge had adopted the test stated by Ackner LJ in Keeton Sons & Co. v Carl Prior Ltd (14 March 1985, unreported): “The question in a case of this kind must always be, ‘has reasonable notice of the terms been given?’ This is essentially a question of fact depending on the circumstances of the case, and in particular on the nature of the business and position of the parties to the transaction.” The Court of Appeal in Medeast accepted this test but did not agree with the judge’s application of it to the facts. At p. 430 Taylor LJ identified two propositions that were inherent in the way the judge had applied the test: “First, that the specific condition relied upon must be drawn in terms to the customer’s attention, and a reference to the conditions generally with the offer of a copy of them on request will not suffice. Secondly, that notice of the condition must be in a contractual document.” After reviewing several authorities, Taylor LJ continued at p. 433: “The effect of those authorities is to show in my judgment that the two propositions which guided the learned Judge in his approach to the first issue in this case were incorrect. He was right to apply the test laid down by Lord Justice Ackner. But whether one applies Lord Justice Ackner’s simple test, or that stated by Mr. Justice Donaldson and applied by Mr. Justice Staughton, it is not necessary to the incorporation of trading terms into a contract that they should be specifically set out provided that they are conditions in common form or usual terms in the relevant business. It is sufficient if adequate notice is given identifying and relying upon the conditions and they are available on request. Other considerations apply if the conditions or any of them are particularly onerous or unusual. Again, it is not necessary that notice of the conditions should be contained in a contractual document where there has been a course of dealing. Here, the parties were commercial companies. There had been a course of dealing in which at least 11 invoices had been sent giving notice that business was conducted on the IFF terms at a place on the document where it was plain to be seen. Mr Zacaria knew that some terms applied. He knew that forwarding agents might impose terms which would frequently be standard terms and would sometimes or frequently deal with risk. He never sought to ask for or about the terms of business. The IFF conditions are not particularly onerous or unusual and, indeed, are in common use. In these circumstances, despite Mr Gompertz’s clear and succinct argument to the contrary, I consider that reasonable notice of the terms was given by the plaintiffs. Putting it another way, I consider that the defendants’ conduct in continuing the course of business after at least 11 notices of the terms and omitting to request a sight of them would have led and did lead the plaintiffs reasonably to believe HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA the defendants accepted j their terms. In those circumstances it is irrelevant that in fact Mr. Zacaria did not read the notices.” The reference to Donaldson J’s test is to S.l. A. T. di del Ferro v Tradax Overseas S. A. [1978] 2 Lloyd’s Rep. 470, where he said at p. 490 (my emphasis): “Lord Justice Diplock, (as he then was) pointed out in the Hardwick Game case, [1966] 1 Lloyd’s Rep. 197; [1966] 1 W. L. R. 287, at pp. 241 and 339D, that the test to be applied is not what the parties actually thought were their rights and liabilities, but what each by his words and conduct led the other party to believe were the liabilities which he was accepting and the concomitant rights which he was granting. In this context I do not think that Lord Justice Diplock was referring to the other party actually believing anything. He meant that the words and conduct of Party A had to be considered with a view to what Party B, as a reasonable man, could and would, if he had applied his mind to the point, have been led to believe.” 29. (See also per Bingham and O’Connor LJJ at p. 435.) The difficulty with Ashenden’s position (or, perhaps, the reason for any purely specious attraction it might possess) is that it fails properly to engage with the simple, and essentially factual, question posed by Ackner LJ in Keeton Sons & Co. v Carl Prior Ltd or Donaldson J in S.l. A. T. di del Ferro v Tradax Overseas S. A. In the formulation of the latter, the question is simply: what did each party by its words and conduct lead the other party to believe were the liabilities which it was accepting and the concomitant rights which it was granting? It is in this context that the “course of conduct” point in Medeast, on which Mr Mukherjee placed much weight, has to be seen. On the facts of that case, there was actually no contract in which the terms had been expressly incorporated or even referred to at the point of contracting: the course of conduct was not a matter of there being many such occasions of express reference when the contract was made, followed by an instance when the express reference was omitted. Rather, as appears from p. 429, each contract was made orally and without mention of the terms. However, on each occasion the plaintiff followed up the contract with a (necessarily non-contractual) invoice, which did refer to the terms. Accordingly, when the contract in question was made, the defendant (whatever the subjective state of mind of its director) had fair and reasonable notice that the plaintiff was intending to contract on the standard terms; and, by making the oral contract, it was by its conduct leading the plaintiff to believe that it was contracting on those terms, even though nothing was said about the terms. 30. If one attends to the facts of the present case, it is obvious that Jefferies made it clear, time after time, that its Terms of Business would govern any contracts it entered into. The fact that no mention of those Terms of Business was made by either party when the individual contracts were made does not matter. So far as appears from the evidence, Ashenden never gave an indication that it did not agree that the Terms of Business should apply. The question, then, simply becomes whether by contracting in those circumstances Ashenden was leading Jefferies to believe that it was contracting on the Terms that Jefferies had stipulated. The obvious answer is that it was. HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA 31. Mr Mukherjee gave three answers to this, none of them persuasive. The first answer was that the conclusion could hold only if there were a prior course of dealing, which is not the case here. With respect, that is to use a formula to evade the facts. Jefferies and Ashenden had transacted business with each other many more times than had the parties in Medeast. The fact that the standard terms in that case had been referred to in the invoices, whereas here the Terms of Business were not mentioned in the trade confirmations, is nothing to the point. Indeed, the present case could even be considered a fortiori: in Medeast the standard terms were apparently mentioned only ever after contracts were made; here, they were mentioned in advance of the making of individual trades. 32. Mr Mukherjee’s second answer was by reference to the judgment of Edwards-Stuart J in Transformers & Rectifiers Ltd v Needs Ltd [2015] EWHC 269 (TCC). That was a “battle of the forms” case. The judge held that neither party’s standard terms had been incorporated into the contract. He considered several authorities, including Medeast, and then turned to apply the principles to each party’s standard terms in turn. When discussing the defendant’s terms, he said: “49. In the light of the authorities that I have discussed, it seems to me that a seller who wishes to incorporate his terms and conditions by referring to them in his acknowledgement of order - thus making it a counter offer - must, at the very least, refer to those conditions on the face of the acknowledgement of order in terms that make it plain that they are to govern the contract. Having done that, if the conditions are not in a form that is in common use in the relevant industry, the seller must give the buyer reasonable notice of the conditions by printing them on the reverse of the acknowledgement of order accompanied by a statement on the face of the acknowledgement of order that it is subject to the conditions on the back. 50. An alternative way in which the same end may be achieved (if the terms and conditions are not printed on the back of the order) is for the seller to send the buyer a copy of his terms and conditions, making it clear that they are the only terms and conditions upon which the seller is prepared to do business.” Mr Mukherjee said that in the present case Jefferies had not expressly stated that its Terms of Business were the only terms on which it was prepared to do business. There is nothing in that point. First, Jefferies had made it plain that its Terms of Business were to govern all contracts for Services. Edwards-Stuart J’s judgment is not to be read as though it were a statute prescribing a form of words. Second, paragraph 50 in Edwards-Stuart J’s judgment was in the context of a battle of the forms, where the question is whether the offeree (the seller) has done enough to make clear that it was making a counter-offer. This is not the case here. 33. Mr Mukherjee’s third answer was to submit, boldly, that the simple analysis in the present case was that Ashenden made an offer that referred to no specific terms (other than subject matter and price) and was therefore governed by what he called “the default rules” of contract, and that Jefferies accepted that offer without more. The HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA 34. 35. trouble with that analysis is that it abstracts the offer from its context. The relevant context is that Jefferies had made it plain that any business it did would be on the Terms of Business and that Ashenden had never demurred. We thus revert to the question of fact posed by Donaldson J (or, in alternative formulation, by Ackner LJ); to which, in my judgment, there is a clear answer. I mention, finally, that I see no need to rely, for present purposes, on the express mention of Terms of Business in the CASS Consent Form signed and returned by Ashenden on 30 April 2015. The document appears on its face to be strongly adverse to Ashenden on the Incorporation Issue. Mr Mukherjee submitted that, to the contrary, the document indicated agreement not to the Terms of Business but only to Jefferies’ terms relating to the holding of assets. Even if that rather difficult submission be correct, it does not improve the weakness of Ashenden’s position overall. Therefore, I agree in substance with Mr Phipps’ submissions. Among the cases he cited I mention, as being generally helpful, Parker v The South Eastern Railway Company (1877) 2 CPD 416, per Mellish LJ at 8-9, and Hood v Anchor Line (Henderson Brothers) Ltd [1918] AC 837, per Viscount Haldane at 26 and 27. For my part, I do not think that a reference to a “master agreement” adds anything to the analysis. The Terms of Business were never signed. Therefore their contractual status rests on the reasonable construal of the parties’ conduct from time to time. To infer from their conduct a “master agreement” is no different from inferring that every time they did a trade they did so on the Terms of Business. I think that one should not get too hung up on labels. 36. Accordingly, I hold that Jefferies has a good arguable case on the Incorporation Issue. Indeed, in my view it is correct on that issue. The Agency Issue—jurisdiction 37. 38. At this point, I shall consider the Agency Issue only insofar as it relates to the Jurisdiction Application. Ashenden’s argument is, in summary, to the following effect. As is made clear on the homepage on its website and as Jefferies will have known well, Ashenden only acts as an intermediary; it does not trade on its own account and has no positions. In relation to the Trade, it was, in fact, acting for a principal, namely Hyposwiss Private Bank Genève SA (“Hyposwiss”). It notified Jefferies of the identity of its principal on or around 4 July 2023, after the occurrence of the Event of Default and prior to the commencement of these proceedings, in accordance with clause 5.8.1. Therefore, in accordance with clause 5.4, the payment obligation in respect of the Trade was that of Hypowiss alone. This, though amounting to a substantive answer to the claim, is also a jurisdictional point, because it means that, even if clause 29.1 of the Terms of Business was incorporated into the contract, it does not apply to the claim against Ashenden, which is not a claim under the contract, and there is no serious issue to be tried. 39. In response, Jefferies contends that, if the Terms of Business applied to the Trade, the claim falls within the scope of an exclusive English jurisdiction clause, and any issue regarding merits is properly to be considered in the substantive proceedings and not as HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA a jurisdiction challenge. In my judgment, Jefferies’ contention on this point is correct. The claim in the claim form, whether or not it is well-founded, is a claim in respect of a contract that contains (or which there is a good arguable case contains) a provision giving the courts of England and Wales exclusive jurisdiction to determine that claim. However, the Agency Issue requires more detailed consideration in the context of the Strike-out Application. The Strike-out Application 40. Without prejudice to the Jurisdiction Application, Ashenden applies for an order striking out the claim pursuant to CPR r. 3.4(2)(a), which provides: “(2) The court may strike out a statement of case if it appears to the court— (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim”. 41. Practice Direction 3A provides in relevant part: “1.2 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a): (1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’, (2) those which are incoherent and make no sense, (3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant. … 1.5 A party may believe they can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the interpretation of a document). In such a case the party concerned may make an application under rule 3.4 or apply for summary judgment under Part 24 (or both) as they think appropriate.” 42. 43. Accordingly, the Strike-out Application will succeed only if Ashenden establishes either (i) that on its face Jefferies’ case cannot succeed or (ii), without conducting a mini-trial, that the prospects of success for Jefferies’ case are at best fanciful. Ashenden’s case on the Strike-out Application rests on the Agency Issue and on the assumption (contrary to Ashenden’s primary case) that the Terms of Business were incorporated into the contract for the Trade. As Mr Mukherjee acknowledged, the HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA case raises two issues: first, the factual question whether Ashenden was acting as an intermediary; second, the legal question of the proper construction of clause 5 of the Terms of Business. Jefferies disputes that Ashenden was in fact acting only as an intermediary in respect of the Trade, and it further contends that clause 5.4 applies only if the existence of a different principal has been disclosed before the trade is made or, at the latest, before the agreed settlement date. The Agency Issue—Facts 44. Ashenden contends that it was clearly acting as “an agent or otherwise on behalf of or for the benefit of a Principal” for the purposes of clause 5.1 of the Terms of Business. It relies on several pieces of evidence in support of that contention; I summarise them as follows. 1) Mr Sigler states, with reference to the homepage on Ashenden’s website, that it acts only as an intermediary and does not trade on its own account or hold positions. In Switzerland it is “affiliated to SO-FIT as a financial intermediary within the meaning of article 2 para 3 of the Anti-Money Laundering Act”. Mr Sigler states that it is precisely because Ashenden does not trade on its own account but only as an intermediary that it is not required under Swiss law to be regulated by the Swiss Financial Market Supervisory Authority (“FINMA”). 2) The contemporaneous evidence exhibited by Mr Sigler shows how the Trade came about. Hyposwiss made an enquiry through Bloomberg Chat for the price of buying Credit Suisse notes from Ashenden. This was followed up in a telephone conversation between Hyposwiss and Ashenden. A second telephone conversation between Hyposwiss and Ashenden concerned the potential parties who might sell the notes and the prices at which a trade might be done; the transcript is not entirely easy to follow, but it appears that in the course of this conversation and another that followed shortly afterwards Hyposwiss was giving instructions to proceed and Ashenden was placing an order with Jefferies. The execution of the Trade took place a few minutes after the third conversation. 45. In response, Jefferies contends that the evidence relied on by Ashenden is consistent with alternative analyses: (i) that Ashenden made the Trade as agent for Hyposwiss; (ii) that Ashenden bought the Notes from Jefferies and sold the Notes to Hyposwiss on a back-to-back transaction, so that it was the principal to the Trade. Jefferies points to the correspondence between the parties, which it says shows that Ashenden’s stance was consistent only with the latter alternative until Mr Sigler made his second witness statement. 46. By email on 19 April 2023 Ashenden wrote to Jefferies as follows: “We are facing a complicated situation with the buyer in default of payment for trades orders passed before the write-off of the AT1 bonds. Of course we are putting every effort in resolving this unprecedented situation, including sending formal notices to buyer and assessing all legal action to be HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA taken. However we are not in a position to sign the Claim Sale and Purchase Agreement. If it is of interest to you, we could examine the possibility to transfer any claim we have against the defaulting buyer to you, or any other form of collaboration in the context of legal action taken against the buyer.” 47. On 20 April 2023 Jefferies responded with some practical proposals, but it stated its basic position in the following terms: “[W]e are sorry to hear you are having issues with your downstream buyer for trades done pre write down. … While you may have a further trade with a counterparty on the other side, as you are aware, the trade between us was done on a principal basis and was in no way contingent on trade or settlement terms that may apply to any onward or other trade that you have entered into. The trade between you and us still stands and you remain responsible for settlement of your obligations irrespective of the write down.” 48. The parties instructed lawyers. On 4 July 2023 Swiss lawyers acting for Ashenden wrote to Linklaters, then acting for Jefferies; the letter included the following passages: “I wish to stress in the first place the longstanding and successful relationship between your client and mine. … Ashenden Finance SA faces a default of payment on the part of the end buyer of the Notes, Hyposwiss Private Bank Genève SA. The latter claims that the seller failed to deliver the Notes on the settlement date of the Transaction on 20 March 2023 a failure to deliver which we - by the way - also had to face with you as a seller, and refuses to fulfil its payment obligations. … Ashenden Finance SA has formally opposed to the position of Hyposwiss Private Bank Genève SA and has initiated debt collection proceedings against it in Geneva. Any action taken against Ashenden Finance SA before the Geneva courts, its natural place of jurisdiction, will be joined to proceedings against Hyposwiss Private Bank Genève SA. Thus, the outcome of the legal action taken against the end buyer is crucial for both Ashenden Finance SA and Jefferies International Limited: the findings of the Geneva courts will commit all parties in the chain of transactions of the Notes. While Ashenden Finance SA understands, and shares, the frustration of your client, obviously, both Jefferies International HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA Limited and Ashenden Finance SA have common interests in this matter and the only viable route is to join forces against Hyposwiss Private Bank Genève SA.” 49. Linklaters’ reply on 18 July 2023 included the following text: “Our client recognises the longstanding relationship it has with Ashenden Finance SA and appreciates the difficulty it is experiencing in respect of Hyposwiss Private Bank Genève SA’s failure to meet its payment obligations. Nonetheless, Jefferies' contract with Ashenden remains independent of Ashenden's relationship with its counterparties. Your client remains liable to fulfil its payment obligations arising under the terms of the sale and purchase agreement made with our client on 16 March 2023. It is no answer to assert that a default of payment on the part of the end buyer of the Notes justifies delay by Ashenden in meeting its contractual obligations owed to Jefferies. … Our client will not condition a resolution of this matter on its involvement in proceedings with a third party which are unrelated to its contractual rights.” It did not appear from the evidence whether there was any response to that letter. 50. Mr Phipps and Mr Mukherjee were in agreement that I was not in a position to resolve the question whether Ashenden was, properly speaking, an agent of Hyposwiss. I agree. Therefore, in my judgment, there is a good arguable case that Ashenden did not make the Trade as an agent, because there is a plausible (albeit contested) evidential basis for that case: see paragraph 19 above. 51. Mr Mukherjee submitted, however, that this did not avail Jefferies. He said that, even if Ashenden was not acting as Hyposwiss’s agent, it was certainly acting “otherwise on behalf of or for the benefit of” Hyposwiss, which was therefore the Principal: see clause 5.1 of the Terms of Business. And this sufficed to bring into play the further provisions of clause 5, including clause 5.4. This raises issues concerning the proper construction of clause 5. The Agency Issue-Construction of Clause 5 52. Mr Mukherjee argued for a broad reading of the words “otherwise acting on behalf of or for the benefit of” in clause 5.1. He relied primarily on the distinction made within the clause itself between “an agent” and one “otherwise” acting for or on behalf of another. He also submitted that clause 5.8.2 could not refer only to the case of agency, because it presupposed substantive contractual rights and obligations as between the intermediary and the Principal. Therefore (he said) the case of a back-to- back sale to Hyposwiss would fall within clause 5.1. As regards the definition of “Principal” in clause 1.3 purely in terms of agency, Mr Mukherjee pointed to the 2014 iteration of the Terms of Business, which define “Principal” not within the definitions clause but solely within clause 5.1 (see paragraph 11 above), and he submitted that the HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA 53. 54. 55. 56. 57. 58. introduction in later iterations of a narrower definition in clause 1.3, conflicting with the usage in clause 5.1, represented a failure to reflect the fact that one might act on behalf of or for the benefit of another without being an agent stricto sensu. Mr Mukherjee also submitted that clause 5.8.2 made no sense if the intermediary must be an agent. Attractively though that argument was made, I do not think that it is correct. The Terms of Business have to be read as a whole and ought to be construed, so far as is reasonably possible (though no further), so that they cohere. The definition of “Principal” in clause 1.3 cannot simply be ignored. Even if it were to be modified by other provisions, it would still in my view limit the possible scope of the words relied on in clause 5.1. It is a strained construction to say that a buyer under a sub-sale (here, Hyposwiss) is one “on behalf of or for the benefit of” whom the buyer from Jefferies (here, Ashenden) contracts with Jefferies. The buyer from Jefferies buys on its own behalf and sells on its own behalf. All those in trade might be said to act for the benefit of their customers, but such a broad reading is inherently implausible and does not sit easily with clause 1.3. Clauses 5.2, 5.3, 5.4 and 5.5—and, indeed, the very notion that the Principal is bound by a contract entered into by the intermediary—require that the intermediary be acting as agent, whatever label might have been attached to the intermediary. If Ashenden was not Hyposwiss’s agent for buying the Notes, Hyposwiss cannot have liability to Jefferies under the contract, no matter what clause 5.4 says. Clause 5.4 cannot enable Ashenden to make Hyposwiss liable under the contract with Jefferies, unless Ashenden was acting as Hyposwiss’s agent. (No one has suggested to me that, notwithstanding clause 29.1, some consideration of foreign law affects this conclusion.) I think that clause 5.8.2, far from assisting Mr Mukherjee on this point, leaves him in a bind. His contention is that the sub-clause applies (at least) to an intermediary who is not an agent; in the present case, to an intermediary, Ashenden, that ex hypothesi buys from Jefferies in order to effect a back-to-back sale to Hyposwiss. What he meant, as I understood it, was that clause 5.8.2 covered the case where the intermediary has substantive performance rights against the Principal (such as the right to receive payment from its own buyer, here Hyposwiss). This does not assist Ashenden, however, unless the contractual obligations in respect of the Trade were owed by Hyposwiss and not by Ashenden. And that can only be the case if (a) Ashenden had authority to contract on behalf of Hyposwiss (that is, was acting as its agent) and (b) clause 5 excludes any liability on the part of Ashenden. The question remains of what to make of the words “or otherwise acting on behalf of or for the benefit of” in clause 5.1. If the explanation does not lie in overenthusiastic drafting, the wording probably represents an attempt to ensure that the provisions of clause 5 operate where, regardless of the description or label attached to the intermediary by the Principal, there is in substance a relationship of agency. I also note that, if it were the case that the intermediary contracted for a third party for which it was not an agent, it would be in breach of its warranty of authority and liable to Jefferies accordingly. HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA 59. 60. 61. 62. 63. 64. 65. 66. Therefore I do not consider that it assists Ashenden to argue that, if it was not acting as Hyposwiss’s agent, it was nevertheless acting on behalf of or for the benefit of Hyposwiss. However, even if Ashenden were an intermediary within the scope of clause 5, its position would not, in my judgment, be improved. This follows from a consideration of the construction and operation of clause 5 as a whole. The effect of clause 5.1 is that, even if the intermediary has disclosed that it has a Principal, and even if it has disclosed the identity of the Principal, the intermediary is to be treated as the counterparty to the Trade, save insofar as the further provisions of clause 5 provide differently. This is the default provision. Clause 5.3, however, is drafted on the basis that the Principal is to be bound by the contract. Thus, for example, clause 5.3.1 is a warranty of authority; clause 5.3.2 is a warranty of the Principal’s ability to contract; and clause 5.3.6 presupposes that the Principal has obligations and liabilities under the contract—it is a contractual promise by Ashenden to procure the performance by its Principal (here, Hyposwiss) of all obligations and liabilities arising under or by virtue of the Terms of Business. These all imply agency; they are premised on the intention that the contract shall bind the Principal. Although I do not find the relationship between clause 5.1 and clause 5.3 to be obvious, I think the clue lies in clause 5.2. Clause 5.1 does not intend to relieve the Principal, with whose authority the intermediary has contracted, from liability under the contract. Rather, it seeks to do two things: first, make clear that, save only as further provided in the remainder of clause 5, the intermediary is liable on the contract; second, make clear that, save only for the same further provisions, Jefferies is contracting as though only the intermediary were its customer (and thus undertakes no regulatory obligations to the Principal). Clause 5.3.6 makes clear that, even in cases where the intermediary has no primary liability under the contract, it has a secondary liability in respect of performance by the Principal. Clause 5.4 provides that, if Ashenden has notified Jefferies of the identity of the Principal to which an instruction relates, the contractual rights and obligations other than under clause 5 itself shall be between Jefferies and the Principal alone. If that clause is engaged, the liabilities undertaken by the agent/intermediary pursuant to clause 5.3 subsist. In that case, the Principal (Hyposwiss) has the primary liability and the agent/intermediary (Ashenden) has the liabilities it has undertaken in clause 5.3, including the liability to procure performance by the Principal of the Principal’s obligations and liabilities. Clause 5.8 deals with matters arising after the contract has been made, namely when “an event of default” (such as non-payment) occurs. In construing it, it is well to have in mind a basic legal proposition, with which it is consistent: “It has long been established that a principal who was at the time of contracting completely undisclosed as such can sue or be sued on the contract of the agent”: Chitty on Contracts, 35th edition, para 22-073. The opening words of the clause mean, in my view, that the Principal is in default. They are rather awkward; that, however, is because they refer HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA 67. to the relevant matter, namely “an event of default”. The clause does not say, “If an event of default occurs”, though it could have done. The words, “If in relation to any Principal of yours …”, are simply to be taken as referring to the Principal being in default. The premise, accordingly, is precisely the same as that of clause 5.3: the Principal is bound. The following sub-clauses simply mean (to put it broadly) that the intermediary must assist Jefferies to get payment from the Principal. The need to comply with clause 5.8.1 might not arise; the intermediary might have provided this information previously. Clause 5.8.2 is grammatically ambiguous, in that it could refer to legal action by Jefferies or legal action by the intermediary. Probably, in context, it refers to the former, because the premise is that the performance obligations (in particular, payment) are owed to Jefferies. For reasons already indicated, the sub-clause does not assist Ashenden in any event. This takes us back to the opening words of clause 5.4: “Where you have notified us of the identity of the Principal to which an instruction relates …” For Ashenden, Mr Mukherjee submitted that this notification could be given at any time; in particular, it could be given after the time of contracting and after the occurrence of “an event of default”. Thus, he said, the notification of the identity of Hyposwiss as Principal on 4 July 2023 was sufficient to engage clause 5.4, and the rights and obligations under the contract lay between Jefferies and Hyposwiss alone. In my judgment, that is incorrect. First, the default position is that, if Ashenden contracted without identifying its Principal, Ashenden is liable under the contract. The proposed construction would mean that Ashenden could subsequently be relieved of that liability. This is an uncommercial reading, especially since Jefferies would then have no control over or knowledge of the party with whom it was contracting. Second, the use of the perfect tense (“have notified”, not “notify”) militates strongly against the suggested construction. Third, the double reference to “instruction” in the first sentence of the clause is relevant: the focus is on the instruction and any contract made pursuant to the instruction, and this naturally indicates that it is dealing with the situation where Ashenden says, in effect, “I am giving this instruction as agent for (or on behalf of) X”, and a transaction is entered into pursuant to that instruction. 68. Accordingly, while I accept that the structure of clause 5 is awkward, the logic is in my view quite clear: (i) The basic position is that the agent/intermediary (here, ex hypothesi, Ashenden) has primary liability under the contract. An undisclosed Principal will also be liable, on normal principles. (ii) If the agent/intermediary discloses the identity of the Principal for which it acts at the time of giving the instruction, the primary liability under the contract will be that of the Principal alone. (iii) Even in the latter case, however, the agent/intermediary has obligations under clause 5.3, including the obligation to procure performance by the Principal. (iv) Whether or not the agent/intermediary has primary liability under the contract, it has the obligations under clause 5.8 to assist Jefferies to get the Principal to perform its own obligations. HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA 69. If this is correct, Ashenden has primary liability under the contract, pursuant to clause 5.1, because nothing has been done to avoid or extinguish that primary liability. Even if (contrary to my view) the notification of the identity of the Principal (Hyposwiss) on 4 July 2023 was sufficient to extinguish Ashenden’s primary liability, Ashenden remains liable on its contractual promise in clause 5.3.6. 70. Accordingly, the Strike-out Application is dismissed. The Amendment Application 71. 72. Jefferies seeks permission to amend the claim form and the particulars of claim in two material respects. The first, which does not go to the substance of the matter, relates to the particular iterations of the Terms of Business. The nature of the proposed amendment is shown in the text quoted in paragraph 21 above. The second proposed amendment is responsive to Ashenden’s contention that it acted not as principal but only as intermediary. The two key paragraphs in the proposed amended particulars of claim are the following: “18A. For the avoidance of doubt, the Claimant contends that the Defendant entered into the Trade as principal, and not as agent for or any other type of representative of any Principal (as defined in the TOBs).” “30A. Further or alternatively, if and insofar as the Defendant contends that it entered into the Trade as agent for or other type of representative of any third party, then: (1) Any such contention will be denied on grounds including, but not necessarily limited to, that the Defendant was not acting in any such capacity and/or failed to give timely notice to the Claimant that it was acting in that capacity. (2) Alternatively, even if the Defendant was acting in such capacity and gave timely notice to the Claimant of the same, then: (a) the Defendant was and remains obliged under clause 5.3.6 of the TOBs to ‘procure the performance by the Principal of all obligations and liabilities arising under or by virtue of these Terms’; (b) the Defendant will have failed to procure that any Principal pay the agreed purchase price of the Notes, that being an obligation arising under or by virtue of the TOBs; (c) the Defendant will be liable to the Claimant in damages for breach of clause 5.3.6 of the TOBs; and HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA (d) the measure of such damages will be the amount of the purchase price of the Notes, which would have been received by the Claimant had the Defendant complied with its obligation to procure payment by any Principal.” 73. 74. 75. Insofar as Ashenden opposes the Amendment Application on the basis of its submissions on the Incorporation Issue and the Agency Issue, the basis of the opposition falls away in the light of my conclusions on those issues. Ashenden opposes the grant of permission for the proposed amendment in paragraph 30A(2) of the particulars of claim on the grounds that Jefferies has no realistic prospect of establishing that Ashenden is in breach of clause 5.3.6. Mr Mukherjee’s argument, in short, was to this effect. It is a basic principle of interpretation that “when you find a particular situation dealt with in special terms, and later in the same document you find general words used which could be said to encompass and deal differently with that particular situation, the general words will not, in the absence of an indication of a definite intention to do so, be held to undermine or abrogate the effect of the special words which were used to deal with the particular situation”: per Foxton J in Capita Business Services Ltd v IBM UK Ltd [2023] EWHC 2623 (Comm) at [23]. In this case, clause 5.3.6 is a general and generic provision, while clause 5.8 is a specific provision, which deals with default by the Principal. Thus in the event of such default the obligations of the agent/intermediary are specifically those in clause 5.8 and no other. Ashenden has discharged its obligations under clause 5.8 by bringing proceedings against Hyposwiss in Geneva and procuring for Jefferies an opportunity (which Jefferies has declined) to intervene in those proceedings. I reject that argument. First, the Geneva proceedings are not directed at rectifying a default under the contract with Jefferies; they are to achieve performance of the contract between Ashenden and Hyposwiss. This remains the case, even if Ashenden intends to pass on any proceeds of the litigation to Jefferies. Secondly, clause 5.8 imposes an obligation to assist Jefferies to procure performance from the Principal. Clause 5.3.6, by contrast, is a freestanding and unqualified warranty and undertaking to procure performance by the Principal of all its contractual obligations. The two provisions work in conjunction, making provision both for the intermediary’s own liability and for steps to promote the efficacy of the Principal’s obligations. 76. As the case advanced by the proposed amendments has a realistic prospect of success, I give permission for the amendments. Conclusion 77. For the reasons set out above: 1) The Jurisdiction Application is refused. 2) The Strike-out Application is refused. 3) The Amendment Application is allowed. HIS HONOUR JUDGE KEYSER KC Approved Judgment Jefferies International Ltd v Ashenden Finance SA 78. I shall be grateful if counsel will provide me with a draft order for my consideration. Any outstanding issues between the parties can be addressed at a short further hearing.