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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Pearson Education Ltd v Prentice Hall of India Private Ltd [2005] EWHC 655 (QB) (22 April 2005) URL: http://www.bailii.org/ew/cases/EWHC/QB/2005/655.html Cite as: [2005] EWHC 655 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Pearson Education Limited |
Claimant |
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- and - |
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Prentice Hall of India Private Limited |
Defendant |
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Daniel Gerrans Esq (instructed by Messrs Henmans) for the Defendant
Hearing dates: 14th/15th March 2005
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Crown Copyright ©
Mrs Justice Gloster, DBE:
Background
Relevant principles relating to jurisdiction
"38. CPR 6.21(2A) provides that the court will not give permission for service out of the jurisdiction unless it is satisfied that England is the proper place to bring the claim. The claimant has to satisfy the court of three matters: first, that it has a cause of action against the defendant 'with a reasonable prospect of success' (CPR 6.21(1)(b)); second, that the case falls within one of the heads of CPR 6.20; and third, that England is the appropriate forum.
39. On the first question, it was held under RSC Order 11, the predecessor of CPR 6.20, that the standard of proof which the claimant had to satisfy in showing that it had a cause of action was whether, on the written evidence, there was a serious question to be tried, i.e., a substantial question of fact or law, or both, which the claimant bona fide desires to have tried: Seaconsar Far East Ltd v Bank Markazi Iran [1994] 1 AC 438. It is not likely that the test under CPR 6.21(1)(b) of a 'reasonable prospect of success' is any different.
40. On the second question, the standard to be applied when deciding whether the jurisdiction of the court had been sufficiently established under one or more of the heads of what is now Rule 6.20 is that of good arguable case, which is a concept with some degree of flexibility depending upon the issue: Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547, at 558, per Waller LJ, approved [2002] 1 AC 1, at 10, per Lord Steyn.
41. On the third question, which goes to the discretion of the court, the claimant must show good reason why service on a foreign defendant should be permitted: see Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50; Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460.
42. In Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 478 et seq, Lord Goff of Chieveley confirmed that in service out of the jurisdiction cases the burden of proof was on the claimant, whereas in stay cases the burden was on the defendant. In the case of service out of the jurisdiction the claimant is seeking to persuade the court to exercise its discretionary power to permit service on the defendant outside the jurisdiction:
'The effect is, not merely that the burden of proof rests on the plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so. In other words the burden is, quite simply, the obverse of that applicable where a stay is sought of proceedings started in this country as a right.'"
Cause of action 'with a reasonable prospect of success'
Most appropriate forum
Non-disclosure in initial application
Conclusion