Formal Holdings Ltd & Anor v Frankland Assets Inc & Ors [2021] EWHC 1415 (Comm) (02 June 2021)

Formal Holdings Ltd & Anor v Frankland Assets Inc & Ors [2021] EWHC 1415 (Comm) (02 June 2021)

The Claimants failed to fairly present the Extension Application at the September hearing by omitting material facts including Mr King's control of both Claimants and Defendants, ongoing BVI proceedings, and the prejudice to Defendants. The September order extending the validity of the claim form is discharged as a matter of discretion due to material non-disclosure. Formal was not entitled to rely on the exclusive jurisdiction clause for service out of jurisdiction without court permission, as assignment was not sufficiently established. Fihag did not bring an alternative claim but only acted as assignor.

Citation
[2021] EWHC 1415 (Comm)
Parties
Claimant: Formal Holdings Limited; Claimant: Fihag Finanz und Handels Aktiengesellschaft; Defendant: Frankland Assets Inc; Defendant: Lena Holdings Corporation; Defendant: Freeland Investment Corporation; Defendant: Dorset Investment Corporation; Defendant: Gemona Investment Corporation; Defendant: Lexington Corporation; Defendant: Maryland Investment Corporation; Defendant: Myron Investment Corporation; Defendant: Napier Investment Corporation; Defendant: Nyra Investment Corporation; Defendant: Primrose Investment Corporation; Defendant: Wellside Investment Corporation; Defendant: Bailor Invest and Finance Corporation
Jurisdiction
England and Wales
Judgment Date
02 June 2021
Procedural Posture
Commercial Debt Claim / Application to Set Aside Extension of Claim Form Validity and Service Out of Jurisdiction
Outcome
Application granted; September order discharged; service set aside.
Legal Topics
Extension of Claim Form Validity, Service Out of Jurisdiction, Exclusive Jurisdiction Clause, Assignment of Contractual Rights, Fair Presentation Obligation, Without Notice Applications
Civil Procedure Commercial Law Extension of Claim Form Validity Service Out of Jurisdiction Exclusive Jurisdiction Clause Assignment of Contractual Rights Fair Presentation Obligation Without Notice Applications

Case Brief

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Parties

Formal Holdings Limited

Claimant

Fihag Finanz und Handels Aktiengesellschaft

Claimant

Frankland Assets Inc

Defendant

Lena Holdings Corporation

Defendant

Freeland Investment Corporation

Defendant

Dorset Investment Corporation

Defendant

Gemona Investment Corporation

Defendant

Lexington Corporation

Defendant

Maryland Investment Corporation

Defendant

Myron Investment Corporation

Defendant

Napier Investment Corporation

Defendant

Nyra Investment Corporation

Defendant

Primrose Investment Corporation

Defendant

Wellside Investment Corporation

Defendant

Bailor Invest and Finance Corporation

Defendant

Procedural Posture

Commercial Debt Claim / Application to Set Aside Extension of Claim Form Validity and Service Out of Jurisdiction

Legal Issues

  1. 1 Did the Claimants fail to fairly present the Extension Application at the September hearing?
  2. 2 Should the September order be discharged as a matter of discretion if there was unfair presentation?
  3. 3 Was Formal entitled to rely on the exclusive jurisdiction clause for service out of jurisdiction without court permission?

Ratio Decidendi

The Claimants failed to fairly present the Extension Application at the September hearing by omitting material facts including Mr King's control of both Claimants and Defendants, ongoing BVI proceedings, and the prejudice to Defendants. The September order extending the validity of the claim form is discharged as a matter of discretion due to material non-disclosure. Formal was not entitled to rely on the exclusive jurisdiction clause for service out of jurisdiction without court permission, as assignment was not sufficiently established. Fihag did not bring an alternative claim but only acted as assignor.

Court Disposition

Application granted; September order discharged; service set aside.

Orders

  • September order extending claim form validity is discharged.
  • Service of claim form in Liberia and BVI set aside.