Fern Computer Consultancy Ltd v Intergraph Cadworx & Analysis Solutions Inc

Fern Computer Consultancy Ltd v Intergraph Cadworx & Analysis Solutions Inc

Fern's claim under the Regulations cannot be brought within any of the currently proposed CPR 6B jurisdictional gateways because the contract is governed by Texas law and not English law, and the Regulations do not convert the contract into an English law contract. Claims under the Regulations are statutory, not contractual, and do not pass through the contract or breach of contract gateways. The English court is the appropriate forum for a claim under the Regulations, but permission to serve out cannot be granted on the current pleadings. The unpaid commission claim is contractual and must be brought in Texas. Fern may seek to amend to rely on the tort gateway, and the matter is...

Parties
Claimant: Fern Computer Consultancy Ltd; Defendant: Intergraph Cadworx & Analysis Solutions Inc
Jurisdiction
England and Wales
Judgment Date
29 August 2014
Procedural Posture
Commercial Agency/jurisdictional Challenge / Application to Set Aside Order Granting Permission to Serve Out of Jurisdiction
Outcome
Order set aside in part; claim for unpaid commission struck out for lack of jurisdiction; claim under the Regulations adjourned for further submissions on alternative gateways (tort and gateway 20).
Legal Topics
Jurisdiction, Service Out of Jurisdiction, Commercial Agents Regulations, Choice of Law, Contract Interpretation
Commercial Law Conflict of Laws Civil Procedure Jurisdiction Service Out of Jurisdiction Commercial Agents Regulations Choice of Law Contract Interpretation

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Parties

Fern Computer Consultancy Ltd

Claimant

Intergraph Cadworx & Analysis Solutions Inc

Defendant

Procedural Posture

Commercial Agency/jurisdictional Challenge / Application to Set Aside Order Granting Permission to Serve Out of Jurisdiction

Legal Issues

  1. 1 Whether a claim under the Commercial Agents (Council Directive) Regulations 1993 can be brought within the English court's jurisdictional gateways where the contract is governed by Texas law and subject to a Texas jurisdiction clause
  2. 2 Whether the supply of software and associated hardware constitutes a sale of goods under the Regulations
  3. 3 Whether Fern's activities were 'secondary' and thus excluded from the Regulations

Ratio Decidendi

Fern's claim under the Regulations cannot be brought within any of the currently proposed CPR 6B jurisdictional gateways because the contract is governed by Texas law and not English law, and the Regulations do not convert the contract into an English law contract. Claims under the Regulations are statutory, not contractual, and do not pass through the contract or breach of contract gateways. The English court is the appropriate forum for a claim under the Regulations, but permission to serve out cannot be granted on the current pleadings. The unpaid commission claim is contractual and must be brought in Texas. Fern may seek to amend to rely on the tort gateway, and the matter is...

Court Disposition

Order set aside in part; claim for unpaid commission struck out for lack of jurisdiction; claim under the Regulations adjourned for further submissions on alternative gateways (tort and gateway 20).

Orders

  • Order granting permission to serve out of jurisdiction set aside for unpaid commission claim.
  • Fern given opportunity to apply to amend to rely on tort gateway and/or gateway 20 for the Regulations claim; matter adjourned for further submissions.