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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> E D & F Man Capital Markets Ltd v Straits (Singapore) PTE Ltd  EWCA Civ 2073 (26 November 2019)
Cite as:  EWCA Civ 2073,  2 Lloyd's Rep 14,  2 All ER (Comm) 551
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
QUEEN'S BENCH DIVISION
MR DANIEL TOLEDANO QC (Sitting as a Deputy Judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE FLAUX
LADY JUSTICE ROSE
| E D & F MAN CAPITAL MARKETS LTD
|- and -
|STRAITS (SINGAPORE) PTE LIMITED
for the Appellant
Mr Huw Davies QC & Mr John Robb (instructed by Clyde & Co. LLP)
for the Respondent
Hearing date: Tuesday 5 November 2019
Crown Copyright ©
Lord Justice Flaux:
Procedural history in Singapore and England
"5. As for the Anti-suit injunction, I was not persuaded that Singapore was the clearly more appropriate forum. There were factors, relied on by [Straits], which pointed to Singapore; but just as much there were factors pointing instead to England. It suffices to note that given this close balance, the Defendant did not make out the first requirement for the issuing of an ASI.
6. Additionally, I would note that none of the factors relied on by the Defendant were to my mind sufficient in any event to establish vexation and oppression of the degree that would justify the issuing of an anti-suit injunction. The mischief or conduct raised could be better and specifically targeted by the injunction against use of documents."
"As Lord Briggs pointed out -, one factor, albeit a very important one, was the desire to avoid multiplicity of proceedings and the risk of inconsistent judgments. In cases where the claimants will in any event continue against the anchor defendant in England, this has frequently been found to be decisive in favour of England as the proper place, even in cases where all the other connecting factors appeared to favour a foreign jurisdiction."
"Taking into account all of the factors I have addressed above and giving due prominence and weight to the desire to avoid multiplicity of actions and the risk of inconsistent judgments, I have reached the conclusion that MCM has demonstrated that England is clearly the proper place in which to bring its claim against Straits. I would have reached the same conclusion even if I had concluded that some or even all of the claims against Straits were governed by Singapore law (or Malaysian or Korean law)."
Grounds of appeal
(1) The judge erred in concluding that it was unnecessary for MCM to apply for and obtain permission to amend before it could rely on the draft amended pleading at the hearing of the CPR Part 11 application.
(2) The judge erred in ratifying the order granting permission to serve out where that order permitted service out of documents which had since been withdrawn or substantially redacted.
(3) The judge erred in principle in disregarding the need for caution where the necessary or proper party gateway was the only one relied upon.
(4) The judge erred in principle in concluding that MCM could rely upon avoidance of multiplicity of proceedings as an overwhelming factor where multiplicity was previously its chosen course, disregarding the step-change in the law set out in Vedanta.
(5) The judge erred in holding that the direct damage arising from a fraudulent sale of goods contract for the purposes of Article 4 of Rome II is suffered where the claimant initiates payment and receives fraudulent paperwork. The correct analysis is that direct damage is suffered where a claimant fails to obtain title in and/or delivery of the goods.
(6) Pursuant to the errors of principle in grounds 3 to 5, the judge erred in holding that MCM had established that England was clearly the proper place for its claim against Straits.
(7) The judge failed to address whether MCM's conduct, particularly commencing proceedings on the basis of material deployed in breach of an undertaking to a foreign court provided a good reason for declining jurisdiction as part of the Court's general discretion.
Summary of the parties' submissions
"There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.
To apply that general doctrine to the present case is, I accept, a novel extension. But, in my judgment, the principle is one of general application and if, as I think, justice so requires, there is no reason why it should not be applied in the present case."
"I therefore have come to the conclusion that the doctrine of approbation and reprobation has now become an established feature of English law (and it would seem Scots law) for the wider principle described in Express Newspapers."
"It is unnecessary to decide the issue for the purpose of disposing of the appeal. In general, it is unwise to deliver judgments on points that do not have to be decided. There is no point in cluttering up the law reports with obiter dicta, which could, in some cases, embarrass a court having to decide the issue later on."
(1) The unspoken assumption behind the search for a single jurisdiction in multi-defendant litigation is the risk of irreconcilable judgments but the case law showed that that risk was only one factor albeit a very important one:  of Vedanta;
(2) Prior decisions holding that where the claim will continue against the anchor defendant in England the avoidance of irreconcilable judgments was decisive in favour of England as the proper place even where all the connecting factors pointed to a foreign jurisdiction (specifically Parline) were wrong:  and - of Vedanta;
(3) The risk of irreconcilable judgments to the prejudice of the claimant should not be a decisive factor or "trump card" when it is a factor which the claimants, having a choice, have brought on themselves:  and - of Vedanta.
Analysis and conclusions
"An unspoken assumption behind that formulation of the concept of forum conveniens or proper place, may have been (prior to Owusu v Jackson) that a jurisdiction in which the claim simply could not be tried against some of the multiple defendants could not qualify as the proper place, because the consequence of trial there against only some of the defendants would risk multiplicity of proceedings about the same issues, and inconsistent judgments. But the cases in which this risk has been expressly addressed tend to show that it is only one factor, albeit a very important factor indeed, in the evaluative task of identifying the proper place. For example, in Société Commerciale de Réassurance v Eras International Ltd (The Eras Eil Actions)  1 Lloyd's Rep 570, 591 Mustill LJ said: "in practice the factors which make the party served a necessary or proper party … will also weigh heavily in favour of granting leave to make the foreigner a party, although they will not be conclusive."
"In conclusion, it is sensible to stand back and look at the matter in the round. This case seeks compensation for a large number of extremely poor Zambian residents for negligence or breach of Zambian statutory duty in connection with the escape within Zambia of noxious substances arising in connection with the operation of a Zambian mine. If substantial justice was available to the parties in Zambia as it is in England, it would offend the common sense of all reasonable observers to think that the proper place for this litigation to be conducted was England, if the risk of irreconcilable judgments arose purely from the claimants' choice to proceed against one of the defendants in England rather than, as is available to them, against both of them in Zambia. For those reasons I would have concluded that the claimants had failed to demonstrate that England is the proper place for the trial of their claims against these defendants, having regard to the interests of the parties and the ends of justice."
Lady Justice Rose
Sir Geoffrey Vos C