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England and Wales High Court (Commercial Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Taylor v Giovani Developers Ltd [2015] EWHC 328 (Comm) (06 February 2015) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2015/328.html Cite as: [2015] EWHC 328 (Comm) |
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QUEEN'S BENCH DIVISION
COMMERCIAL
B e f o r e :
____________________
(1) CHRISTOPHER TAYLOR | ||
(2) JANET LILIAN BEVAN TAYLOR Claimants | ||
- and - | ||
(1) GIOVANI DEVELOPERS LTD | ||
(2) ANDREW PURCELL Defendants |
____________________
MR. B. HARDING (instructed by Gateley LLP) appeared on behalf of the First Defendant.
THE SECOND DEFENDANT did not appear and was not represented.
____________________
Crown Copyright ©
MR. JUSTICE POPPLEWELL:
"The Claimants claim against the First, Second and Third Defendants rescission and/or damages and/or declaratory relief and/or restitutionary relief and/or interest pursuant to section 35A of the Senior Courts Act 1981 for breach of contract, negligent misstatement, negligence and/or misrepresentation under the Misrepresentation Act 1967 and under common law in relation to the sale of property known as and situated at K105, Block K (Katherine), Aqua Residence, Pyla, Larnaca, Cyprus sold by the First Defendant through and on the advice of the Second and Third Defendants, who were the Claimants' financial advisers. Alternatively, the Claimants claim corresponding relief under Cypriot law and/or relief under the Laws of Cyprus Cap. 149.
The Claimants believe that the English Courts have jurisdiction in this matter on the basis that the Claimants are English domiciled consumers; alternatively that a co-defendant is domiciled in England; alternatively (with respect to the tort claims) that the harmful event occurred in England; alternatively (in respect of the contractual claims) that the obligation was to be performed in England, alternatively that the dispute arose out of the operation of an agency situated in England."
"A defendant who wishes to make such an application [to dispute the court's jurisdiction or argue that the court should not exercise its jurisdiction] must first file an acknowledgement of service in accordance with Part 10."
"Upon receipt of the Claim Form, I am instructed that the First Defendant noted that the facts and matters set out in the Claim Form were identical to those contained within an earlier Claim Form (Claim Number 2013 folio 978) served on 20 May 2014 and that the First Defendant was confused by this. Acting by its then solicitors, Protopapas Solicitors, it filed an Acknowledgment of Service in relation to the 2014 Claim Form on 13 August 2014."
"At paragraph 9 of my First Witness Statement I set out my then instructions that the Claim Form in Claim No. 2014-110 was served on the First Defendant on 7 August 2014. I now understand from Antonis Antoniou, Director of the First Defendant, following him checking his papers that the Claim Form in this matter was in fact served on 20 May 2014. However, the confusion appears to have arisen because of the fact that the correspondence under cover of which the proceedings were served referred to the Claim Number 2013 Folio 978, which is in fact the Claim Number relating to proceedings that appear to have been issued in 2013."
"Notwithstanding the passage of time the First Defendant is still unable to properly understand the claim made in the current proceedings. I am now instructed by Mr. Antonis Antoniou, Director of the First Defendant, that when the First Defendant received the Claim Form, it came very much 'out of the blue'. I am told that the directors were in a state of shock as they did not expect to receive Court papers from the English Court as they had understood that they could not be sued in the UK given the wording of the Contract of Sale. There is now shown and produced to me ... a copy of the Contract of Sale. The choice of law and jurisdiction clause is at Clause 25(b)."
"The present Agreement consists of ten pages plus all the appendixes and is drawn up in the English language. Furthermore this Agreement shall be governed by and construed in accordance with the laws of the Republic of Cyprus, and further 'The PURCHASER' and 'The VENDORS' declare that they have read and understood all the contents of this agreement."
[LATER]
"(1) The claimant may obtain judgment in default of an acknowledgment of service only if -
(a) the defendant has not filed an acknowledgment of service ... and
(b) the relevant time for doing so has expired."
which consists of claims for other remedies than those set out in Rule 12.4(1), which are essentially money sums, an amount of money to be decided by the court, or for delivery of goods. Secondly, under Rule 12.10(b), an application has been to be made where the judgment in default of acknowledgment of service is sought against a defendant who has been served with the claim out of the jurisdiction under Rule 6.32(1), i.e. under the Civil Jurisdiction and Judgements Act 1982, where permission is not required by that Act.
"(1) outside the jurisdiction without leave under the Civil Jurisdiction and Judgments Act 1982, or the Lugarno Convention or the Judgments Regulation ...
... the evidence must establish that:
(a) the claim is one that the court has power to hear and decide,
(b) no other court has exclusive jurisdiction under the Act or the Lugarno Convention or Judgments Regulation to hear and decide the claim, and
(c) the claim has been properly served in accordance with Article 20 of Schedule 1 to the Act, Article 26 of the Lugarno Convention, paragraph 15 of Schedule 4 to the Act, or Article 26 of the Judgments Regulation."
Paragraph 4.5 provides:
"Evidence in support of an application [of the kind referred to in para.4.3] must be by affidavit."
"Where the claimant makes an application for a default judgment, judgment shall be such judgment as it appears to the court that the claimant is entitled to on his statement of case."
"In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if:
(a) it is a contact for the sale of goods on instalment credit terms; or
(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or
(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities."
"... rescission and/or damages and/or declaratory relief and/or restitutionary relief and/or interest pursuant to section 35A of the Senior Courts Act 1981 for breach of contract, negligent misstatement, negligence and/or misrepresentation under the Misrepresentation Act 1967 and under common law in relation to the sale of the property ..."