The claimant brought claims against the third defendant, a Monegasque lawyer, alleging that he had committed the torts of unlawful means conspiracy, intentionally causing damage by unlawful means and intentionally and knowingly inducing a violation of rights in judgment. The claimant alleged that the third defendant had helped the first and second defendants to dissipate assets in Monaco in breach of an English worldwide freezing order in the context of substantial English judgments against the first defendant. The third defendant applied to set aside service of the claim form against him, contending, inter alia, that (1) there was no good arguable case that the “tort” jurisdictional gateway in CPR PD 6B, para 3.1(9) on which the claimant relied to obtain permission to serve out was satisfied because damage was not “sustained … within the jurisdiction”; (2) the unlawful conspiracy claim did not give rise to a serious issue to be tried on the merits because the claimant could not establish that the third defendant intended to harm it; and (3) Monaco was clearly and distinctly a more appropriate forum than England for the trial of the claims.
On the third defendant’s application—
Held, application refused. The word “damage” in para 3.1(9) of CPR PD 6B had a wide meaning and extended to indirect and consequential damage, including the physical and financial damage caused by the wrongdoing. Given existing authority supporting a proposition that English judgments were payable in England and previous decisions involving the present parties to the effect that damage had been sustained within the jurisdiction, the claimant had a good arguable case that it suffered damage within the jurisdiction as a result of the dissipation of assets in Monaco causing a reduction in value of the judgment debts in circumstances where it had the better of the argument that English judgments were payable in England. Accordingly, the claimant had established a good arguable case that damage was sustained within the jurisdiction for the purpose of the “tort” gateway. In relation to intention, the question of the third defendant’s state of mind would be a matter for trial, but given existing authority and the facts of the present case, there was clearly a serious issue to be tried in relation to the unlawful conspiracy claim, which sufficed on a jurisdictional challenge. Finally, on the facts, England was undoubtedly the most appropriate forum for the trial of the claims (paras 61–73, 112–118, 126, 177–184, 185).
S J Phillips KC and James Goudkamp (instructed by Hill Dickinson LLP) for the claimant.
Edward Ho (instructed by Mishcon de Reya LLP) for the third defendant.