Toby Chandler Successful in Jurisdictional Challenge and Amendment Dispute
Toby Chandler acted pro-bono, under the auspices of Advocate, in striking out an international fraud claim as disclosing no realistic prospect of success.
The claimant claimed against his former business partner in relation to various investments made into Kindergarten – Grade 12 businesses in mainland China via various intermediaries in Hong Kong. The Claimant issued proceedings in England alleging a substantial fraud against the defendant for failing to apply the investment as the claimant had directed. The Defendant opposed jurisdiction on the basis that the claim had no proper connection with England. The Claimant applied to amend to plead reliance upon a jurisdiction clause contained within one of the contracts between the parties (the ‘2019 Consultancy Agreement’).
The Court dismissed the amendment application and struck out the claim on the basis that the 2019 Consultancy Agreement had been signed by a corporate entity ‘on behalf’ of the Defendant. The Court concluded that the manner in which an agreement has been signed is usually (and in this case) decisive as to the parties to the contract. HHJ Monty relied upon the view of Lord Shaw in Universal Steam Navigation Co Ltd v James McKelvie & Co that:
“But I desire to say that in my opinion the appending of the word ‘agents’ to the signature of a party to a mercantile contract is, in all cases, the dominating factor in the solution of the problem of principal or agent. A highly improbable and conjectural case (in which this dominating factor might be overcome by other parts of the contract) may by an effort of the imagination be figured, but, apart from that, the appending of the word ‘agent’ to the signature is a conclusive assertion of agency, and a conclusive rejection of the responsibility of a principal, and is and must be accepted in that twofold sense by the other contracting party”.
The difficulty in this case was that the alleged corporate counter-party was (so the Claimant alleged) struck off as a matter of BVI law, where it was domiciled. However, the Court concluded that, if that were right, the effect of that was simply to make the 2019 Consultancy Agreement a nullity: see Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2004] 1 A.C. 715 per Lord Millet at paragraphs 175 – 176.
The Court also found that the ‘only right order’ was to strike out the claim of its own volition as having no real prospect of success, rather than to refuse to exercise its jurisdiction.
Toby was also successful in obtaining pro-bono costs orders in this dispute in favour of the Access to Justice Foundation. More information about the work of the Access to Justice Foundation may be found here: https://atjf.org.uk/
Toby Chandler has a busy commercial practice and accepts instructions in all areas of commercial disputes. He was recently recognised by Advocate for fulfilling the 2023 ‘Pro-Bono Pledge’ and for his commitment to providing pro-bono legal services.
The Access to Justice Foundation has thanked Toby for his pro-bono work in their LinkedIn post here.
