Practice and Procedure


PUBLISHED November 5, 2003

It appropriate for the ninth defendant to be joined as a necessary and proper party under CPR 19.2(2) and to be served outside the jurisdiction under CPR 6.20(8)(a).Applications by: (i) the ninth defendant SDV Transami (Kenya) Ltd ('SDV') to set aside the order of Langley J made on 24 May 2002 by which he permitted the addition of SDV as a party to an action between the claimant ('CAI') and other defendants and service upon it outside the jurisdiction; (ii) a further application by SDV to stay the order; and (iii) an application by CAI to amend and serve its draft particulars of claim. CAI provided funding to the first defendant for the purchase of coffee in Kenya and claimed that it was owed $6.9 million under the terms of a finance facility agreement between it and the first defendant. It further claimed that whilst it had collateral in the form of warehouse undertakings, signed by the first defendant and SDV, confirming that coffee was stored to its order a fraud had been practised upon it. In October 2000 CAI discovered upon making a demand under the agreements that there was no coffee stored to its order. By an order made by Langley J on 24 May 2002 CAI joined SDV to the main claim and sought damages for breach of undertaking and for deceit. SDV then sought the above applications on the grounds that: (a) the first defendant was insolvent at the time the order was made and that it was unlikely that any judgment could be enforced against the other defendants; and (b) the order should be stayed as England was not the appropriate forum as SDV was domiciled in Kenya and the material witnesses and experts were Kenyan.HELD: (1) SDV was a necessary and proper party to be joined under CPR 19.2(2) as there was an issue involving SDV and CAI which was connected to the matters in dispute in the main proceedings. The requirements under CPR 6.20(8)(a) for service outside the jurisdiction were met as the damage complained of was sustained within the jurisdiction as the undertakings had been made in England. The principle in Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd (1983) 3 WLR 492 applied and it did not matter that CAI could not enforce any judgment against the other defendants. (2) The burden was on the defendant to show that England was not the most appropriate forum. On the facts in the present case England was the most appropriate forum as most of the evidence in the case took the form of documentation, there was no evidence that Kenyan witnesses were unwilling to travel to England and expert evidence was as readily available in England as in Kenya. (3) CIA had been given an general extension to serve its particulars of claim and it was appropriate that it be allowed to amend and serve them.Applications by SDV dismissed.

[2003] EWHC 2676 (Comm)