(1) To set aside service of the claim form;
(2) To stay the proceedings under s.9 of the Arbitration Act 1996 in favour of arbitration;
(3) To stay the proceedings on the basis that Indonesia is allegedly clearly or distinctly the most appropriate forum to hear this dispute.
(1) D’s email of 21 April 2020 to C stated that:
"We understand that we still have some outstanding payment to Goshawk,4 however it is not our intention to not paying you. We are of course remain committed to meet our obligations, we only need some relaxation as things are getting worse right now... we require your support for lease rent deferral with a lengthier repayment period."
(2) This followed an email to C of 16 April 2020 in which D stated that it could not then confirm a payment plan to meet the arrears as it was "still finalizing the process of obtaining the financial support from our government".
(3) D subsequently put forward a payment plan by email dated 15 July 2020, which included the proposal that "The overdue payments will start to be paid in January 2021 and spread until the end of the lease term".5 That was not acceptable to C.
(1) First, D contends that service of the claim form was not valid, not being served in accordance with rule 6.3 of the CPR. It then also seeks to resist C’s counter-application issued on 15 October 2020 for retrospective permission to serve the claim form at an alternative place or to extend time to serve the claim form or to dispense with service. These objections to the validity of service, or to any attempt to remedy any defect in service, are all despite the fact that D accepts that "it is open to C to issue and serve fresh proceedings against D" (Allen-2 at .
(2) Second, D alleges that the proceedings have been brought in breach of the parties’ arbitration agreement, and should therefore be stayed for arbitration, pursuant to the arbitration clause set out at cl.15.2 of the Lease.
(3) Third, D makes a forum non conveniens challenge, alleging that the most appropriate forum for the resolution of the proceedings is Indonesia.
(1) The Form OS CH01 (Return by a UK establishment of an overseas company for change of details) dated 1 July 2019 filed and signed on behalf of D (the "Hammersmith Filing") and published on the Companies House website gave D’s address for its UK establishment as the Hammersmith Address.
(2) The UK establishment office address stated on another page of the Companies House website7 reflected that filing by stating the same address.
(1) It is the company which is seeking to change its address whose publicly available statements as to the address of its establishment are being relied upon. It can see that its address remains its published address on the Companies House website.
(2) The company seeking to change its address could and should take simple steps to ensure any post is forwarded during the interim period after filing its change of address but before it is published. It could also record this fact on any email traffic that it sends.
(3) If it were not possible to rely upon the published information on the Companies House website, in practical terms that would mean that such information could never be relied upon, since it might always be subject to an unpublished contrary filing. This would wholly undermine certainty and require potential litigants to seek to engage in a factual enquiry as to whether an unpublished change of address might have been filed.
"13.—(1) If an alteration is made in any of the particulars delivered under—... (b) regulation 7 (particulars of the establishment), the company must deliver to the registrar a return containing details of the alteration.....
(4) The details required of the alteration are—
(a) the particular that has been altered,
(b) details of the particular as altered, and
(c) the date on which the alteration was made.
(6) The period allowed for delivery of the return is—
.... (b) in the case of an alteration of any of the particulars specified in regulation 7 (particulars of the establishment), 21 days after the alteration is made."
"STX should not be allowed to go behind the statement which it made as a matter of public record that it has opened a UK establishment where it is carrying on business."
(1) CPR r.6.15(1) enables the court to make an order permitting service at an alternative place "Where it appears to the court that there is a good reason to authorise service at a place not otherwise permitted by this Part".
(2) CPR r.6.15(2) provides that on an application under CPR r.6.15, "the court may order that steps already taken to bring the claim form to the attention of D. at an alternative place is good service". C seeks such an order (i.e. an order that service at the Hammersmith Address was good service).
1. "the court should simply ask itself whether, in all the circumstances of the particular case, there is a good reason to make the order sought" ;
2. "whether there is a good reason is essentially a matter of fact" ; CPR r.6.15(1)-(2) only require "good reason", rather than (as per CPR r.6.16 in relations to applications to dispense with service) "exceptional circumstances" ;
3. "It should not be necessary for the court to spend undue time analysing decisions of judges in previous cases which have depended on their own facts" ;
4. "The mere fact that D learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under rule 6.15(2). On the other hand, the wording of the rule shows that it is a criticalfactor" .
5. In this context, "Service has a number of purposes but the most important is to my mind to ensure that the contents of the document served, here the claim form, is communicated to D" .
(1) The claim form was brought to D’s attention and received by D notwithstanding its change of address, as D filed the required acknowledgement of service within 14 days (on 3 August 2020) and exhibited C’s cover letter enclosing the claim form to Allen-1 in support of D’s application issued on 31 August 2020.
(2) In serving at the Hammersmith Address, C relied on D’s published statements as a matter of public record that the Hammersmith Address was C’s place of business in the UK.
(3) Service would not have been effected at that address had D complied with its obligations to file a change in particulars in February 2020.
(4) D chose to refrain from informing C that its address had changed or that it objected to service at the Hammersmith Address until after the period for validity of the claim form had expired on 16 August 2020, almost a month after service at the Hammersmith Address on 20 July 2020. As Lord Clarke agreed in Abela at , service is "not about playing technical games".
(5) There is no prejudice to the Defendant if service is treated as effective in circumstances where the Defendant has received the claim form and filed both its Acknowledgment of Service and its jurisdiction application within the required timeframe.
(6) The limitation period has not expired and will not begin to expire until at least 2026, given that the contractual defaults commenced in January 2020.
(7) Service at the Hammersmith Address was such as could reasonably be expected to bring the proceedings to D’s attention. That was the address published on the Companies House website at the time of service. Further, even if the question were to be asked in light of the matters now known (rather than known by C at the time), one would expect D to have had forwarding arrangements in place. This is particularly given that D only filed a change of particulars at Companies House on 2 July 2020. The fact that one would expect D to have had forwarding arrangements in place was a point made by C at Mack-1 [27(b)]. Notably, D did not state that it did not have forwarding arrangements in place in its reply evidence, nor did it state that it did not receive the copy of the claim form served at the Hammersmith Address11: see Allen-2 .
"b. C has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
c. C has acted promptly in making the application."
(1) C served at the address for D set out in its publicly available statements on the Companies House website. It did so after checking the Companies House website twice, once on 15 July 2020 and once again on 16 July 2020 before posting the claim form that day.
(2) As the Supreme Court stated in Abela, the most important function of service is to ensure that the contents of the claim form are communicated to D. D acknowledged service of the claim form on 3 August 2020, within the required 14 days after deemed service of the claim form on 20 July 2020. D did not say anything in correspondence or otherwise to indicate that the claim form had not been validly served. This is despite the fact that D also emailed C the claim form on 22 July 2020, referring to the "claim form served on your English branch late last week".
(3) The 4 month period for service of the claim form expired on 16 August 2020, before D’s change of address to the Hounslow Address set out in the Hounslow Filing was published on the Companies House website on 18 August 2020.
(4) D chose not to raise any issue regarding the address for service until after the 16 August 2020 deadline for service had elapsed. It raised the issue for the first time when it filed its application on 31 August 2020 (which it subsequently served on C’s solicitors through the DX on 3 September 2020).13 This was some 6 weeks after it had been served. Had D raised the point within the 4 weeks before expiry of the claim form, C would have re-served at the Hounslow Address within the 4 month period.14
(5) Accordingly, it was not apparent from the published information or from any correspondence from D that it was necessary to re-serve at the Hounslow Address until after the 4 month deadline for service had elapsed.
(1) First, D complains that C waited three months before effecting service. However, as is apparent from the inter-partes correspondence at the time, the parties were engaged in discussions as to a payment plan for repayment of the outstanding liabilities. Further, this is not a case where C left it to the last moment: far from it, the claim form was posted to an address within the jurisdiction a month before its expiry. This was sufficient time to allow for an acknowledgement of service (which was filed) and for any issues D had in relation to service reasonably to be expected to be brought to C’s attention. D did not raise any issue about service until after the expiry of the claim form.
(2) Second, D complains that C relied upon a single source of information to ascertain D’s business address, namely the Companies House website which contains disclaimers. However, as to this, the source relied upon was a statement as to D’s address filed by D itself at Companies House as a matter of public record. In the circumstances, there was nothing inappropriate in relying upon it: indeed, part of the purpose of the relevant statements is that they can be relied upon for service.
(3) Third, D complains that C used a method of service (first class post) that did not provide for confirmation of successful delivery. But this is a method permitted under the CPR and in any event D acknowledged service and did not raise any issue in relation to service for over a month afterwards.
"First, it requires an exceptional case before the court will exercise its power to dispense with service under r 6.9, where the time limit for service of a claim form in r 7.5(2) has expired before service was effected in accordance with CPR Part 6. Secondly, and separately, the power is unlikely to be exercised save where C has either made an ineffective attempt in time to serve by one of the methods permitted by r 6.2, or has served in time in a manner which involved a minor departure from one of those permitted methods of service. Thirdly, however, it is not possible to give an exhaustive guide to the circumstances in which it would be right to dispense with service of a claim form"
"(1) A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter....
(4) On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed." (emphasis added)
(a) "Each of Lessor and Lessee hereby agrees that any dispute arising out of or in connection with this Lease Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration (the "LCIA Rules"), which rules are deemed to be incorporated by reference into this clause.
(b) The number of arbitrators shall be three and the seat or legal place of arbitration shall be London, England. The English language shall be the language used in the arbitral proceedings and in any award. The arbitration shall be conducted in accordance with the LCIA rules and the arbitration law of the place of the seat of the arbitration.
(c) The award of the arbitrators shall be final, binding and incontestable, and may be used as a basis for enforcement in the republic of Indonesia or elsewhere. The parties waive their respective rights to appeal against such final arbitration award under the laws of or other policies that have the force of law in the Republic of Indonesia or any other jurisdiction to the fullest extent permitted under applicable law."
"If an Event of Default occurs, and for as long as it shall continue, Lessor may at its option (and without prejudice to any of its other rights under this Lease Agreement or that may arise by operation of Applicable Law), at any time thereafter:
(b) proceed by appropriate court action or actions to enforce performance of this Lease Agreement or to recover damages for the breach of this Lease Agreement;" (emphasis added)
" Each of the following events will constitute an Event of Default and a repudiation of this lease agreement by lessee:
"(a) Non payment. "Lessee (i) fails to pay the agreed value and all other amounts required under section 11.2 on the settlement date; (ii) [and this is relevant here] fails to make any payment of Basic Rent or Additional Rent within two business days after the date on which such payment is due, or (iii) fails to pay any other amount payable under this lease agreement within five business days after written notice from lessor that such amounts are due."
(1) Clause 13.2 is granting the lessor rights and it is implicit in that the rights are additional rights that are being granted under this clause because they are without prejudice to its other rights under the lease or at law.
(2) Secondly, 13.2(b) then allows C to proceed by appropriate court action or actions. C emphasises the word court. It is permitting C to proceed by way of court litigation not arbitration.
(3) Third, it is allowing a claimant to proceed by way of court action or actions. The reference to "action" is indicative of the court process, not the arbitral process. In the context of arbitration, one much more naturally uses the word "arbitral proceedings" rather than "action". Further, the fact that the clause envisages the potential for more than one court action is, again, indicative of the court process. If it was referring to an arbitration, one would expect only one set of arbitral proceedings. It is quite common in lease enforcement claims to bring more than one court action because one set of proceedings may be brought in the jurisdiction in which the aircraft is physically located, for example, if it is necessary to ground or arrest the aircraft. In another set of proceedings, the substantive proceedings are brought in another jurisdiction, such as England, for the substantive claim for damages and other relief.
(4) Fourth, the clause then sets out the permitted purposes of the court action or actions, which are either to enforce performance of the lease or to recover damages. Again, this is widely drafted by reference to the types of claim which the lessor would most likely pursue on an event of default.
"whether there is a dispute within the meaning of the arbitration clause when the charterers refuse to admit and refuse to pay the amount claimed."
"Mr. Hamblen [for the Claimant owners] submitted that the critical question is what is meant by "dispute," which, as here, and as in most arbitration clauses, is under section 9 the "matter which under the agreement is to be referred to arbitration." Relying on the decision of the House of Lords in Nova (Jersey) Knit Ltd. v. Kammgarn Spinnerei G.m.b.H.  1 W.L.R. 713, and on a number of subsequent Court of Appeal decisions, he submitted that it is settled by well established and binding authority that "dispute" means a genuine or real dispute, and that a claim which is indisputable because there is no arguable defence does not create a dispute at all. It follows, he submitted, that claims to which there is no arguable defence are outwith the scope of section 9, and are therefore properly the subject matter of court proceedings under Order 14, notwithstanding the omission from section 9 of the 1975 qualification.
Mr. Waller on the other hand [for the Defendant charterers] submitted that "dispute" means any disputed claim, and therefore covers any claim which is not admitted as due and payable, thus leaving no scope whatsoever for court proceedings under Order 14 save where the defendant has made a positive admission. He relied primarily on a decision of Saville J. in Hayter v. Nelson  2 Lloyd’s Rep. 265, which he portrayed as a landmark decision; in that case it was held that the word "dispute" in an arbitration clause should be given its ordinary meaning, and was not confined to cases where it could not then and there be determined whether one party or the other was in the right, so that the fact that a person has no arguable grounds for disputing something does not mean in ordinary language that he is not disputing it."
"Again by the light of nature, it seems to me that section 1(1) is not limited either in content or in subject matter; that if letters are written by the plaintiff making some request or some demand and the defendant does not reply, then there is a dispute. It is not necessary, for a dispute to arise, that the defendant should write back and say 'I don't agree.'Iff, on analysis, what the plaintiff is asking or demanding involves a matter on which agreement has not been reached and which falls fairly and squarely within the terms of the arbitration agreement, then the applicant is entitled to insist on arbitration instead of litigation"
"Where an arbitration clause contains a time limit barring all claims unless an arbitrator is appointed within the limited time, it seems to be that the time limit can only be ignored on the ground that there is no dispute between the parties if the claim has been admitted to be due and payable. Such an admission would, in effect, amount to an agreement to pay the claim, and there would then clearly be no further basis for referring it to arbitration or treating it as time-barred if no arbitrator is appointed. But if, as here, a claim is made and is neither admitted nor disputed, but simply ignored, then I think that the time limit clearly applies and that the claimant is obliged (subject to any possible extension of time) to appoint an arbitrator within the limited time."
"A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter."
"In Ellerine Bros. (Pty.) Ltd. v. Klinger the Court of Appeal was also considering a question of construction of an arbitration agreement, in which it was agreed that all disputes or differences whatsoever should be referred to arbitration. The plaintiffs claimed an account. The defendants had simply done nothing. The Court of Appeal expressly followed the decision in [Tradax Internacional S.A. v. Cerrahogullari T.A.S.  3 All E.R. 344] and held that silence did not mean consent and that, as Kerr J. said, until the defendant admits that a sum is due and payable there is a dispute within the meaning of the arbitration clause. Even in such a case I can see an argument for saying that a claimant would be entitled to an award if the respondent then refused to pay. But, however that might be, the Ellerine Bros. case is authority for the proposition that where a party simply does nothing there is a dispute which the claimant is both entitled and bound to refer to arbitration. It follows that there is binding Court of Appeal authority in favour of the defendant’s case on construction of the clause."
"The Charterers’ submission is, and was, that there was no dispute because they had admitted their liability, and the amount of the claim, and the due date for payment and the fact that payment had not been made. All they had not done, of course, was pay."
"In The Halki, at first instance,  1 Lloyd’s Rep 49, Clarke J, referring to it making no commercial sense to conclude that arbitrators only had jurisdiction over those parts of a claim which were defendable, decided that it made more sense to hold that the arbitration clause there (materially the same as the present clause) was intended to give the arbitrators jurisdiction over all claims which either party had refused to pay. Henry LJ, in the Court of Appeal (atpage 478) quoted that passage with approval. So too did Swinton Thomas LJ (at page 484). Mr Mocatta relied upon it. The Halki was a case of refusal to admit and refusal to pay. Mr Aswani, on behalf of Charterers, sought to distinguish the case on that basis. But I see no good reason why the one should not be characterised as a dispute as much as the other. It would be remarkable if parties had chosen to address the issue of jurisdiction by reference to whether non-payment was due to a failure to admit a valid claim rather than a failure to pay it."
(1) "[T]he burden resting on D is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum": Spiliada v. Cansulex  AC 460 at 477.
(2) The appropriate forum is where the case may be tried more suitably for the interests of all the parties and the ends of justice (ibid at 476C).
(3) The highest D puts its case is that "[s]everal factors link the present case to Indonesia". The existence of mere links is not sufficient to establish that Indonesia is clearly a more appropriate forum than England.
(4) It is also incumbent upon a defendant seeking to stay proceedings on forum non conveniens grounds to "identify the issues concerned and to state as clearly as possible how they arise or may arise in the proceedings": Limit v PDV  EWCA Civ 383 at  per Clarke LJ.16 Thus, as Mr. Cutress QC submits, to make good the case for a stay on this ground, the issues must be identified and then the appropriateness of the competing fora for the trial of those issues considered.17
(5) The court will have regard to factors including convenience or expense (such as availability of witnesses), but also to other factors such as the law governing the relevant transaction and the places where the parties reside or carry on business (ibid at 478A-B).
(1) D has a place of business in the UK (namely, at the Hounslow Address), despite the fact that D is incorporated in Indonesia. In contrast, C does not have any place of business in Indonesia.19
(2) The Lease is governed by English law.20 No other law has been shown to be relevant.
(3) The Lease and other Operative Documents are all in English.21
(4) The correspondence between the parties is all (or almost all) in English: see, for example, the correspondence in which D acknowledged the payments then overdue and proposed a payment plan.22
(5) The correspondence shows D’s representatives corresponding in English. In contrast, no one representing C can speak in Bahasa.23
(6) The English courts are now used to resolving and regularly resolve disputes remotely, with the result that any dispute can be determined notwithstanding any further lockdowns here or in Indonesia or any difficulty in travel. D has not adduced any evidence as to the operation of the Indonesian courts during the pandemic.
(7) Whilst C is a French SPV, C’s documents and potential witnesses are based predominantly in Ireland. It is more practically convenient for C for the case to be heard in England than Indonesia.24
(8) It is notable that despite the burden on it of showing that Indonesia is clearly or distinctly more appropriate, even D does not assert that practical matters make Indonesia a more appropriate forum. Rather, at Allen-2 [39(a)] it asserts (emphasis added):
"The first category is practical matters (translation of documents, interpreters, location of documents). These issues are neutral as to jurisdiction; whilst it may be more practically convenient for C (a French entity) if the claim were to be heard in England, it would be more practically convenient for D (an Indonesian entity) for it to be heard in Indonesia."
(1) The Aircraft’s state of registration and habitual base is Indonesia. However, these matters are irrelevant: D has not shown that any of these matters are relevant to any issue that arises in relation to the proceedings.
(2) The Aircraft is currently located in Indonesia and subject to Indonesian law regarding tax/customs and airworthiness. However, no issue regarding the tax/customs and airworthiness (still less Indonesian law in relation to such matters) or the Aircraft’s location is said to arise, so even if this point is correct, it is irrelevant. The best D is able to say in its skeleton is to speculate (for the first time) that such matters "may" be relevant to C’s claim for an indemnity. However, there is no evidence whatsoever to establish that any such issues do arise in relation to the indemnity (or if so, what precisely those issues are).
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