Kinsella & Anor v Emasan AG & Anor

Kinsella & Anor v Emasan AG & Anor

The English court has jurisdiction over the 2002 Agreement and misrepresentation claims as the claimants established a plausible evidential basis for a jurisdiction agreement, supported by subsequent deeds and witness evidence. The 2002 Agreement was not necessarily superseded by later deeds, and the claimants have a realistic prospect of success on the 2002 Agreement and misrepresentation claims. The ordinary share total consideration claims have no realistic prospect of success and are dismissed. Permission to amend the Particulars of Claim is granted in part.

Parties
Claimant: James Kinsella; Claimant: Robert McNeal; Defendant: Emasan AG; Defendant: Sandoz Family Foundation
Jurisdiction
England and Wales
Judgment Date
21 November 2019
Procedural Posture
Civil (commercial/contract) / Interlocutory Applications (jurisdiction Challenge, Summary Judgment, Permission to Amend)
Outcome
Jurisdiction challenge and summary judgment applications dismissed in part and allowed in part; permission to amend granted in part.
Legal Topics
Jurisdiction Challenge, Summary Judgment, Entire Agreement Clauses, Misrepresentation, Estoppel, Variation of Contract, Service Out of Jurisdiction
Contract Law Private International Law Civil Procedure Jurisdiction Challenge Summary Judgment Entire Agreement Clauses Misrepresentation Estoppel +2 more

Case Brief

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Parties

James Kinsella

Claimant

Robert McNeal

Claimant

Emasan AG

Defendant

Sandoz Family Foundation

Defendant

Procedural Posture

Civil (commercial/contract) / Interlocutory Applications (jurisdiction Challenge, Summary Judgment, Permission to Amend)

Legal Issues

  1. 1 Whether the English court has jurisdiction over the claims based on the 2002 Agreement and misrepresentation
  2. 2 Whether the 2002 Agreement was superseded by later deeds
  3. 3 Whether the claimants have a real prospect of success on the 2002 Agreement, misrepresentation, and ordinary share total consideration claims

Ratio Decidendi

The English court has jurisdiction over the 2002 Agreement and misrepresentation claims as the claimants established a plausible evidential basis for a jurisdiction agreement, supported by subsequent deeds and witness evidence. The 2002 Agreement was not necessarily superseded by later deeds, and the claimants have a realistic prospect of success on the 2002 Agreement and misrepresentation claims. The ordinary share total consideration claims have no realistic prospect of success and are dismissed. Permission to amend the Particulars of Claim is granted in part.

Court Disposition

Jurisdiction challenge and summary judgment applications dismissed in part and allowed in part; permission to amend granted in part.

Orders

  • Foundation’s jurisdiction challenge dismissed for 2002 Agreement and misrepresentation claims; allowed for ordinary share total consideration claims.
  • Defendants’ summary judgment application dismissed for 2002 Agreement and misrepresentation claims; allowed for ordinary share total consideration claims.