Fern Computer Consultancy Ltd. v. Intergraph Cadworx & Analysis Solutions Inc.  EWHC 2908 (Ch)
On 29 August 2014, Mr. Justice Mann handed down judgment on the defendant’s (“Intergraph”) application to set aside an order giving permission to the claimant (“Fern”) to serve proceedings on Intergraph out of the jurisdiction.
Since 1993 Fern acted as Intergraph’s agent for selling certain software products throughout Europe pursuant to an agreement dated 21 December 2007. The agreement provided that Texas law was the governing law of the agreement and the courts of Texas had exclusive jurisdiction to determine any claim arising out of the agreement.
Fern commenced a claim in England for compensation under The Commercial Agents (Council Directive) Regulations 1993 (“Regulations”) and for unpaid commission under the agreement. Fern obtained permission to serve the claim form on Intergraph in Texas on the basis that the claim satisfied two jurisdictional gateways contained in the Practice Direction to C.P.R. 6: the claim was made in respect of (1) a contract where the contract was governed by English law; and (2) a breach of contract committed within the jurisdiction.
The Judge held that the claim made under the Regulations did not satisfy either of the gateways relied upon by Fern essentially because the rights under the Regulations were not contractual, but were statutory in nature. Therefore, although the claim under the Regulations was governed by English law, the contract relied upon by Fern was governed by Texas law and the claim under the Regulations was not a claim made in respect of any breach of contract. In so holding, the Judge accepted Intergraph’s submission that the decision of Tugendhat J in Accenture Ltd. v. Asigra Inc.  2 All E.R.738, was wrongly decided on these points and should not be followed. The Judge also rejected Fern’s argument that permission to serve out was not required pursuant to C.P.R. 6.33(3) because the English court had jurisdiction under the Regulations themselves. However, the Judge reserved for further argument as to whether the claim under the Regulations could satisfy the tort jurisdictional gateway in C.P.R. 6.
As to Fern’s claim for unpaid commission, the Judge held that Fern could not establish that England was the appropriate forum in which to bring this claim because it was a claim under the agency agreement and, hence, fell squarely within the exclusive jurisdiction clause in favour of the Texas courts.
The judgment is here.
Jasbir Dhillon QC represented Intergraph, instructed by Olswang LLP.