SSL International Plc & Anor v TTK LIG Ltd & Ors (Rev 1)

In these proceedings, the Claimant Appellants (“SSL” and “LRC”, to whom I shall refer collectively as “the Claimants”) seek injunctions and damages against the Defendant Respondents (“the Defendants”) arising from the breakdown of the relationship between the Claimants and, principally, the Third, Fourth, Fifth and Sixth Defendants in relation to the First Defendant (TTK”), which is an Indian joint venture company in which SSL, through a subsidiary, on the one part and those Defendants on the other part are respectively equal shareholders. The business of TTK is the manufacture of condoms, and it was the principal supplier of condoms for the Claimants.

These are appeals by the Claimants against orders made by Mann J and Peter Smith J. Before Mann J the Claimants sought, on an application made without notice, urgent injunctive relief requiring TTK, among other things, to make deliveries of condoms to SSL. Mann J refused to make that order. Before Peter Smith J, the Claimants sought judgment against TTK in default of its filing an acknowledgment of service for similar injunctive relief. Peter Smith J refused to grant that relief.

None of the Defendants has filed an acknowledgment of service. In the case of TTK, if the claim form was validly served on it, as the Claimants contend, it was in default when the Claimants made their application to Peter Smith J. None of the Defendants has appeared or been represented below or before us, although solicitors acting for them have made it clear that they dispute the jurisdiction of the Court.

Following the resumed hearing on 12 August 2011, we announced our decision to dismiss these appeals. We said we would give our reasons in writing. These are my reasons for dismissing the appeals.

I can take most of the facts from the judgment of Mann J. I shall also refer to the Particulars of Claim, since it is contended by the Claimants that they are entitled to judgment on the basis that the facts alleged in their pleading have been proved. The Defendants have not put in any evidence, so the account of the facts is necessarily one-sided and provisional at this stage.

The two claimants are members of the Reckitt Benckiser Group. That group has recently taken over the business formerly run by London International of the manufacture and sale of condoms, particularly under the Durex brand. It is a very large business.

SSL markets and manufactures condoms, particularly, but not exclusively, under the Durex brand. LRC is the member of the group which owns the various trade marks and perhaps other intellectual property. It is also the company that is used for transfer pricing, i.e., it is invoiced by and pays TTK for the supply of condoms that it manufactures. However, the Claimants’ case is that it is SSL which is the contracting entity for the purchases from TTK.

TTK is an Indian company, that is to say, incorporated in India. It was formed as a joint venture company for the manufacture in India of Durex condoms and for distribution of those condoms, and of condoms under other names in India. Its manufacturing plants are in India.

The joint venture was originally between London International, on the one hand, and various individuals in India on the other. Part of its function, and a major part of its function, was to manufacture and supply condoms to the then London International Group. For practical purposes, the joint venture can be treated as being a fifty-fifty one, that is to say, London International had almost exactly 50 per cent of the shares and the voting.

On the Indian side, the joint venture involved a group of Indian investors known collectively as the TTK Group. It was set up originally in 1963, when the Durex brand was owned by London International Group Limited. When the Reckitt Benckiser Group acquired the London International Durex business, it effectively succeeded to the joint venture arrangement on the European side and it succeeded to the various agreements constituting the joint venture. TTK continued its function as the manufacturer of condoms for the Reckitt Group.

The joint venture agreements provide that the joint venture is governed by Indian law.

The current vehicle through which the Reckitt Group holds the interests in the joint venture is New Bridge Holdings BV: it holds almost 50 per cent of the shares in the first defendant company.

TTK supplies 50 per cent of the worldwide supply of condoms sold by SSL. In the UK SSL has 83.4% of the market. There are two other manufacturing facilities, one in China and one in Thailand. They are working almost to capacity.

The Defendants other than TTK are officers and/or shareholders in TTK. The Third to Sixth Defendants are the principal shareholders, and they are the most significant, but not quite all, of the individual Indian participants in the joint venture.

Under the terms of the joint venture, each side has the right to appoint four nominee directors to the board of TTK. There are controls as to the sort of decisions that can and cannot be taken without the consent of the joint venture participants. Major decisions require the consent of both sides of the joint venture.

TTK sells some of the condoms it manufactures within India, under various names including Durex and Koh i Noor, and it also sells some on a not-for-profit basis to the Indian government. It does so pursuant to licences granted by LRC or its predecessor owners of the relevant marks. It is obliged to sell the rest of its output into what is now the SSL Group, formerly the London International Group. It cannot sell its condoms elsewhere.

80 per cent of TTK’s operating profit comes from manufacturing for the Reckitt Group. The remaining 20 per cent comes from its own trade in India, to which I have already referred.

The manufacture and packaging of condoms is jurisdiction sensitive: the nature of the goods supplied, the quality of the product and the packaging and accompanying leaflets vary from market to market, the market for these purposes being individual countries. Thus, for Australia, the packaging and requirements are or may be different to those for, for example, New Zealand, the United Kingdom, or the United States. Thus packaged condoms are not generic goods which can be sold in any country. Once manufactured and packaged for a given country, it is difficult, if not impossible, to sell them elsewhere. Once condoms had been manufactured and packaged, they were then shipped directly from India to required destinations around the world.

Until the present dispute arose, the terms of the manufacture and supply by TTK to the Claimants incorporated a pricing based on what was called fully absorbed manufacturing costs (FAMC). The price to which TTK was entitled was FAMC plus 15 per cent.

TTK distributes condoms in India under a distribution agreement which came to an end on 30 June 2011. It is apparently the re-negotiation of that agreement which is an important part of the background to the dispute which has arisen.

Reckitt have recently been looking at their arrangements with TTK and made new proposals, not apparently to the liking of their Indian partners. Amongst the proposals is the non-renewal of the distribution agreement and its substitution by different arrangements. Some board meetings of TTK, which involved directors from each side, have historically taken place in the UK. However, at some point in April 2011, the Indian directors called one in India to take place on 2 May.

For various reasons, that was not wholly convenient to two of the nominated directors of the claimant. For that and other reasons, the Claimants proposed that two of the directors who could not attend would cease to be directors and would be substituted by two others nominated by them. The Reckitt group therefore submitted resignation documents for the two outgoing directors, and expected the two new directors to be appointed under the joint venture arrangements.

Unfortunately, the resignations were accepted, but the two new nominees were not voted in. Instead, the Indian side of the joint venture voted in two new directors who were not in the Claimant’s camp but were in the Defendants’ camp. That is apparently a breach of the joint venture agreement, but was effective under Indian company law. Thus the Indian side of the joint venture gained control of TTK. They immediately set about requiring different terms for their relationship with the Claimants. In particular, they required a new five-year agreement between the Claimants and TTK, pursuant to which the TTK would continue to supply. They proposed to increase the margin available to the first defendant from FAMC plus 15 per cent to FAMC plus 50 per cent. They also required a guaranteed minimum purchase of condoms on a yearly basis, that minimum being 800 million condoms or 50 per cent of the global sales of Durex, whichever was less. In order to strengthen their bargaining position, they stopped delivering condoms to the Claimants.

SSL thought that the proposed arrangements were quite wrong, but their strategy rapidly became to go along with them but to challenge them in due course, or to challenge the imposition of the new arrangement in due course, on the ground of economic duress. That led to an offer on 6 May which essentially accepted the terms demanded by the Defendants, with an immediate resumption of supplies.

Despite the fact that TTK had basically had an acceptance of their proposals, it did not resume supplies. There have therefore been no supplies since the beginning of May.

Shortly thereafter proceedings were commenced in India, in what is known as the Company Law Board (“the CLB”) in Chennai. Those proceedings were brought by New Bridge. The CLB, is a body which in essence hears and deals with shareholder disputes. In terms of an English analogy, it looks as though it would deal with the sort of points which would arise in England under a petition under section 994 of the Companies Act. However, it does not deal with commercial disputes, such as alleged breaches of contracts for the sale of goods and economic torts, and it therefore could not deal with proceedings for breach of the supply arrangements, sounding in damages, which the Claimants seek to bring against the Defendants.

Interim orders have been made in the CLB proceedings. It made an interim order that there be a resumption of supply of condoms by TTK to the Claimants on the financial terms proposed originally by TTK and subsequently by the Claimants. The Claimants indicated that they would go along with that and would pay for resumed supplies on that basis; in other words they would pay an uplift on the original mark-up that was originally paid. A similar order was made on 1st June. In addition, New Bridge, which is the claimant in those CLB proceedings, has given an undertaking as to minimum volumes for a period of three months. However, TTK has not complied with those orders.

Thus TTK has not been supplying product to the Claimants since the beginning of May. That has caused serious disruption to the supply of the Claimants. They have already run out of some stocks in relation to some of their products. They are rapidly running out of others. They have been carrying out adjustments as to supplies and packaging where appropriate, but TTK’s failure to supply them has left a large hole in the supply of condoms. That will have a serious effect on their business and may lead to a significant failure of supply of condoms worldwide until replacement manufacturing capacity can be secured. In the short term the Claimants cannot replace the TTK supply. Their two existing factories are already working at almost 100 per cent capacity and cannot fill the gap left by TTK. Other suppliers cannot readily and speedily be found. There have to be various processes of approval and supply of intellectual property before any supplies can be commenced. It will take some months for any alternative supply arrangements to any significant extent to be put in place. If a new factory has to be built to replace the first defendants’ factory, it cannot be on stream before 2013.

On the Indian side of the operation, the evidence is that condoms have continued to be manufactured but at a lower level of activity than would otherwise have been the case. Condoms have been made and packaged and are ready to go but in uncertain quantities. As I have indicated, such condoms as have been made and packaged in accordance with the arrangements, and particularly those which are branded with the Durex brand, cannot be supplied to anyone other than the Reckitt Group and cannot be sold in markets other than the markets for which the specifically manufactured goods are intended. So, the position is that the stock is actually no good to the first defendant unless it can be used as a lever to negotiate terms that the Indian side of the venture wants.

The present proceedings seek injunctive relief against TTK based on breach of contract, that relief being effectively specific performance of what the Claimants says are outstanding supply contracts. They also claim damages for breach of contract against TTK and damages against all the defendants for a range of economic torts, in particular procuring a breach of contract and conspiracy.

The claim form was issued on 17 June 2011. On the same day, the Claimants issued an application for urgent injunctive relief, including an order requiring TTK to make deliveries to SSL. The application sought permission to serve all of the Defendants, including TTK, out of the jurisdiction. However, on 20 June 2011 the Claimants served the claim form personally on Mr Fasano, one of the remaining directors nominated by the Claimants, at the Claimants’ offices, purportedly pursuant to CPR Part 6.5(3)(b). The application came before Mann J on 29 June 2011. He refused injunctive relief and refused permission to serve the Defendants other than TTK out of the jurisdiction.

Once TTK’s time for filing its acknowledgment of service had expired (on the basis that the service on Mr Fasano had been effective), and it had not filed its acknowledgment, the Claimants issued an application for judgment in default. Their application came before Peter Smith J on 21 July 2011. Following Mann J, he dismissed the application.

Mann J was reluctant to accept that TTK had been duly served. Before him, the Claimants did not suggest that it carried on business or had any premises within the jurisdiction. The Claimants had purported to serve it by personal service on one of their own nominated directors of TTK, at the Claimants’ own offices. It was almost as if the Claimants had served themselves. However, he felt bound by authority to accept that there had been good service. Nonetheless, he refused to grant injunctive relief on the basis that there was no good evidence before him that the supply contracts were governed by English Law or included an English jurisdiction clause, but also, and mainly, because he took “the view that the lack of connection with this jurisdiction and the potential difficulties of enforcement make it inappropriate to do so”. He refused to grant permission to serve the Defendants other than TTK out of the jurisdiction on the ground that India was the natural and proper place to resolve the claim.

Peter Smith J did not decide whether or not injunctive relief, effectively specific performance of the contracts for the purchase of condoms, could be granted. He considered that he was being asked to review, effectively to sit as on an appeal, on the judgment of Mann J, and that it would be wrong for him to do so. Accordingly, he dismissed the application.

Understandably, the Claimants’ primary appeal is against the order of Peter Smith J. In order to succeed, they must show that TTK was duly served within the jurisdiction. On Friday 5 August, they were alerted by the Court to the judgment of Brandon J, as he then was, in The Theodohos [1977] 2 Lloyd’s Rep 428, in which he held that the equivalent in the Rules of the Supreme Court of CPR Part 6.5(3)(b) was not applicable to a company that was not carrying on business within the jurisdiction. If that decision, which followed earlier decisions to the like effect, was applicable to the CPR, on the basis of the facts as presented to Mann J, there had not been good service and the Claimants were not entitled to judgment in default.

As a result of the Court’s communication, the Claimants filed a supplemental skeleton argument in which they contended that the principle recognised in The Theodohos was inapplicable to the CPR. In addition, they filed a further witness statement which set out facts on the basis of which it was contended that TTK did carry on business within the jurisdiction.

On this basis, the Claimants contended that on the basis of the facts pleaded in their Particulars of Claim, which TTK is taken to have admitted, the Court should grant the injunctive relief they sought.

The principal issues on the appeal against the order made by Peter Smith J are the following:

Issue (4) involves consideration of section 52 of the Sale of Goods Act 1979 and the question whether the injunction is for the delivery of specific or ascertained goods, and if so whether this is an appropriate case for specific performance.

If the above issues are decided in favour of the Claimants, it seems to me that the appeal against the order of Mann J will fall away, as being unnecessary. Conversely, if they are decided against the Claimants, I do not think that the appeal against Mann J’s order raises any different issues such as could entitle the Claimants to injunctive relief. However, the appeal against Mann J’s refusal of permission to serve the Defendants other than TTK out of the jurisdiction raises somewhat different issues. The principal issues are:

Does CPR Part 6.5(3)(b) permit service on “a person holding a senior position within [a] company or corporation” if the company or corporation does not carry on business and is not present within the jurisdiction?

In Okura & Co., Limited v Forsbacka Jernverks Aktiebolag [1914] 1 KB 715, Phillimore LJ said, at 721:

“When a human being is about to be sued, it is necessary that there should be a personal service of the writ upon him. In the case of a corporation that cannot be done, and Order IX., r. 8, provides that service shall be sufficient if it is made upon the head officer or secretary of the corporation. The defendants in this case are a corporation incorporated under the laws of Sweden. It may be that there is some person in this country connected with the defendants in such a way that the writ might properly be served upon him as an officer of the corporation. But that of itself is not sufficient. In order that an officer of a foreign corporation may be served in this country it is necessary that the foreign corporation must be one which can in some sense be said to be locally in this country. I take it that every corporation is prima facie locally situated in the territory of the sovereign power from which it derives its origin; apart from that a corporation has physically no place or attributes of locality, though it may for the purpose of its business occupy a place outside the country of its origin. The question, therefore, is whether the foreign corporation can be said to be “here,” to use the expressive phrase employed by Mr. Joseph Walton in arguing La Bourgogne [1899] A. C. 431, and adopted by the Lord Chancellor when giving his opinion in that case. If a foreign corporation can be said to be “here,” its officer can be served with a writ. But a foreign corporation may be both “here” and “there,” and in this connection Lord St. Leonards in Carron Iron Co. v. Maclaren (1855) 5 H. L. C. 416, 459 spoke of the possibility of a corporation having two domicils, and in other cases judges have spoken of corporations having two residences; both of which expressions have been criticized. The criticisms appear to me to be somewhat captious, for though the expressions “domicil” and “residence” when used with reference to a corporation may not be quite accurate, they are useful metaphors as indicating what is intended, and there is no doubt that a corporation can in a sense be said to be in two places at once though an individual cannot. But a foreign corporation cannot be said to be “here” unless there are facts from which it can be inferred that, like an individual, it is residing here, and in the case of a trading corporation residence means the carrying on of its business. In determining this question the Court ought in my opinion, as Lord Coleridge C.J. said in Grant v. Anderson [1892] 1 Q. B. at p. 112, to have regard to the broad principles of international comity which in questions of jurisdiction must always be assumed to underlie the rules of Court or the enactments of Parliament.”

In The Theodohos [1977] 2 Lloyd’s Rep 428, Brandon J, as he then was, considered whether there could be good service on a Panamanian company that did not carry on business within the jurisdiction under the then RSC Order 65 rule 3, which provided:

Personal service of a document on a body corporate, may in cases in which provision is not otherwise made by any enactment, be effected by serving it … on the … president of the body … or other similar officer …

The writ had been served on the person named in the Panamanian register of companies as the president and director of the company. Having reviewed the authorities on service under that provision, including Okura & Co., Limited v Forsbacka Jernverks Aktiebolag, he concluded:

In my view the authorities to which I have been referred compel me to reject Mr Longmore’s submission, and to hold that, unless a foreign company is carrying on business at a place within the jurisdiction, it cannot be served with process within the jurisdiction, either by the method employed in the present case or at all.

In The Vrontados [1982] 2 Lloyd’s Rep 241 it was common ground, and accepted by the Court of Appeal, that what Brandon J had said in The Theodohos correctly stated the law: see the judgment of Lord Denning MR at 244:

… this Panamanian company never did establish a place of business here. Nor did it ever carry on business here. So it could not be served here by a writ for service within the jurisdiction. Not even by service on the president of the company if he was resident here, see The Theodohos.

As a result, service of the writ on the defendant was set aside, even though three of the directors of the company lived in this country.

The Okura case was referred to, and Brandon J’s statement of the law in The Theodohos endorsed, in the impressive judgment of the Court of Appeal in Adams v Cape Industries [1990] 1 Ch 433, 523:

… Salter J. in the Littauer case and Ashworth J. in the Vogel case clearly attached great weight to a long line of cases where the English court has considered whether it should allow process to issue to foreign companies as being amenable to its jurisdiction. We will call this line “the Okura line of cases,” because a leading example is the decision of this court in Okura & Co. Ltd. v. Forsbacka Jernverks Aktiebolag [1914] 1 K.B. 715.

The origin of this line requires some brief explanation. After it had been decided in Newby v. Von Oppen & Colt’s Patent Firearms Manufacturing Co. (1872) L.R. 7 Q.B. 293 that in appropriate circumstances a foreign corporation was capable of being sued in this country, our courts in a number of cases had to consider (a) whether on the facts the foreign corporate defendant was amenable to the jurisdiction of the English court, and if so (b) whether it had been properly served with the process. Most of these cases were concerned with the old Ord. 9, r. 8 of the Rules of the Supreme Court 1883, which provided:

“In the absence of any statutory provision regulating service of process, every writ of summons issued against a corporation aggregate may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer or secretary of such corporation . . .”

The rule contained no such expressions as “reside” or “carry on business.” However, as Ackner L.J. pointed out in South India Shipping Corporation Ltd. v. Export-Import Bank of Korea [1985] 1 W.L.R. 585 , 589:

“Those expressions were used as convenient tests, to ascertain whether the corporation had a sufficient ‘presence’ within the jurisdiction, since ‘generally,’ courts exercised jurisdiction only over persons who ‘are within the territorial limits of their jurisdiction.’ Apart from statute ‘a court has no power to exercise jurisdiction over anyone beyond its limits,’ per Cotton L.J. in In re Busfield (1886) 32 Ch.D. 123 , 131, quoted by Lord Scarman in Bethlehem Steel Corporation v. Universal Gas (unreported), 17 July 1978, House of Lords.”

…

It is clear that (special statutory provision apart) a minimum requirement which must be satisfied if a foreign trading corporation is to be amenable at common law to service within the jurisdiction is that it must carry on business at a place within the jurisdiction: see The Theodohos [1977] 2 Lloyd’s Rep. 428 , 430, per Brandon J.

Like Part 6.5(3)(b) of the CPR, the old Order 9, rule 8 of the Rules of the Supreme Court 1883 was in unqualified terms. It related expressly and only to writs of summons. Nonetheless, it, and subsequent versions of that rule, were held to apply only to corporations that were within the jurisdiction. In other words, the rule was construed as restricted to such corporations.

Mann J was not referred to this line of authority. He said:

46.

I have wondered whether the proper analysis is that CPR 6.5(3)(b) allows one to serve a corporate representative in this jurisdiction when that corporation could itself be served here because it was, for example, an overseas company within the various service rules, or some other company which could be validly served here anyway. That, however, does not seem in any way to be part of the reasoning of Lord Goff in Kuwait Airways.

47.

In the circumstances, it seems to me that I am bound to find that, odd though it still seems to me, service on the director is valid service on the Indian company for the purposes of effecting service of a claim form in this jurisdiction.

However, in Kuwait Airways Corporation v Iraqi Airways Co. and Another [1995] 1 WLR 1147 the defendant did carry on business within the jurisdiction, and so the principle in The Theodohos had no application. It does not cast doubt on the principle in that case.

Mr de la Mare accepted that The Theodohos correctly stated the law under the Rules of the Supreme Court (“the RSC”), but he submitted that the principle that they established does not apply to what is the equivalent provision in the CPR. The rule is clear and unqualified, and should not be read down in the way that the RSC rule was read down. Now, provided a senior officer of a foreign company can be found and personally served within the jurisdiction, the company is validly served, and judgment in default may be entered if it does not file an acknowledgement of service. One of the reasons he suggested that there might have been for this change is that it is easier for a foreign defendant to obtain a stay of proceedings on the ground of forum non conveniens.

In my judgment, no good reason has been shown for the principle enunciated in The Theodohos, which represents a fundamental rule of the common law, to have been excluded from the application of the materially identical provision in the CPR. True it is that since The Atlantic Star [1974] AC 436 there has been a more flexible and liberal approach to applications to stay proceedings on the ground of forum non conveniens, but that decision did not lead to any change in the RSC or the application of the Theodohos principle in the ensuing 25 years before the CPR was introduced. Moreover, for our courts to exercise jurisdiction on a person or company that owes no allegiance to this country and is not present in it in any meaningful sense is not to be lightly assumed: a company served under CPR Part 6.5(3)(b) must, if it is to avoid a default judgment, incur the burden of coming to this country to apply for the proceedings to be stayed, even if the claim has no connection with this country at all.

As Mr de la Mare accepted, if his submission is correct, a foreign company may be personally served here if a director is passing through the country on holiday. Even more curiously, if the mayor of a foreign local authority that is a corporation is visiting this country, that local authority may be served by service on him. I do not think that these consequences can have been intended.

What I find more difficult is the fact that CPR Part 6.5(3)(b) is in terms unqualified, and if it is subject to the Theodohos qualification it is liable to mislead. As appears from the above citation, the rule considered in the Theodohos applied to “Personal service of a document”, and it was perhaps possible to read that rule as inapplicable to a writ of summons. But, as we have seen, that explanation is inapplicable to the original provision of the RSC.

In Rolph v Zolan [1993] 1 WLR 1305, the Court of Appeal held that there had been good service under the County Court Rules by sending the summons to the last known address of the defendant, who in fact had emigrated to Spain. It was held that there had been good service. Dillon LJ said, at 1312:

I find it impossible by any process of mere construction to limit the scope of the present Ord. 7, rr 1 and 10 to service only on a defendant “within the jurisdiction,” by analogy to R.S.C., Ord 10, r. 1.

The facts of Rolph v Zolan were extraordinary. The claim was for the price of building work that had been completed in 1985. In 1991, few days before the expiration of the 6-year limitation period, the plaintiff issued proceedings in the county court, and they were served at the address in this country that was the defendant’s last known address in England. Unknown to the plaintiff, the defendant had left England in 1986, when he emigrated to live in Spain. He retained ownership of the property in this country, and a friend forwarded the summons to him in Spain, and he received it during the period of 4 months when the summons was valid for service. However, those facts were, on the Court’s interpretation of the County Court Rules, irrelevant. There would have been good service even if the defendant had no property within the jurisdiction and had never received the summons, and presumably even if he had emigrated much more than the 5 years that had elapsed in that case before service was effected. It was held that service was good service. No issue seems to have been raised as to whether the plaintiff had made any enquiries as to whether the defendant still lived at the address he had left 5 years previously. The appeal could have been decided on the simple basis that the court will normally set aside a default judgment, whether regularly obtained or not, if the defendant shows that he has a good defence and there was a good reason for his default. This was the law before the introduction of the CPR (see A/S Cathrineholm v Norequipment Trading [1972] 2 QB 314, disapproving Thomas Bishop Ltd v Helmville Ltd [1972 1 QB 464) and it is reflected in CPR Part 13.2 and 13.3. Be that as it may, the case differs from the present in that the defendant had resided in this country and we must assume that the plaintiff believed that he still did so.

In City & Country Properties Ltd v Kamali [2006] EWCA Civ 1879 [2007] 1 WLR 1219 the Court of Appeal rejected the contention of a defendant that he had not been duly served under CPR r 6.5 because he had been temporarily out of the jurisdiction when service was purportedly effected by leaving the claim form at his place of business. The Court disapproved the dictum of Lawrence Collins J (as he then was) in Chellaram v Chellaram (No 2) [2002] 3 All ER 17 at paragraph 47 that “it has always been, and remains, a fundamental rule of English procedure and jurisdiction that a defendant may be served with originating process within the jurisdiction only if he is present in the jurisdiction at the time of service, or deemed service”. Lord Neuberger MR said:

19.

It seems to me that the principle relied on by Lawrence Collins J in Chellaram v Chellaram (No 2) [2002] 3 All ER 17 and by Evans-Lombe J in Fairmays v Palmer [2006] EWHC 96 (Ch) deserves respect and serious consideration, not least because Lawrence Collins J is the senior editor of Dicey, Morris & Collins on Conflict of Laws, 14th ed (2006).

20.

The reasons why I have come to the conclusion that this appeal must be dismissed are as follows. First, the words of the relevant provisions of the CPR, in particular rules 6.2 to 6.5 inclusive, do not appear to me to exclude service in accordance with their terms simply because the defendant is out of the jurisdiction. Contrary to the contention put forward by Mr Wolman, I do not consider that rule 6.5(1) calls that proposition into question. It merely excludes service out of the jurisdiction, save in accordance with the provisions of Section III of CPR Pt 6. In this case, if service was validly effected, it was done so within the jurisdiction and appears to have been in accordance with the requirements of rule 6.5. In those circumstances, it seems to me wrong in principle to imply an exception into rules 6.2 to 6.5, unless it is either obvious that such an exception should be implied, or the provisions as to service in CPR Pt 6 simply do not work in some respect unless such an exception is implied. I do not consider that either possibility applies.

21.

Secondly, there is the reasoning and decision of this court on a very similar point under the former County Court Rules in Rolph v Zolan [1993] 1 WLR 1305, to which May LJ has referred. Consistently with the approach in that case, it seems to me to be inappropriate to imply the common law principle identified in the Chellaram case [2002] 3 All ER 17 into rules 6.2 to 6.5. The decision in the Rolph case [1993] 1 WLR 1305 is also important here because it answers Mr Wolman_s point that one should not lightly assume that a common law principle has been reversed, as it were sub silentio, by a change in rules of procedure. If the County Court Rules already had the effect determined in the Rolph case, the common law principle had already been reversed, albeit only in the county court. In effect, the effect of our conclusion is that, in the present connection, we are holding that the Civil Procedure Rules followed the County Court Rules, as interpreted in the Rolph case, rather than the Rules of the Supreme Court.

22.

Thirdly, rule 6.15(1), which does not fall within Section III of CPR Pt 6 and which provides that where a contractual claim is brought the claim form may be served by a contractually agreed method, suggests that the provisions outside Section III of CPR Pt 6 were intended to be capable of applying even where the defendant was out of the jurisdiction, a proposition supported by the way in which rule 6.15(2) is expressed.

23 Fourthly, nothing in Section III of CPR Pt 6 (“Special Provisions about Service out of the Jurisdiction”) appears to me to preclude service on a defendant out of the jurisdiction being effected in accordance with rules 6.2 to 6.5 within the jurisdiction, where it is appropriate. The terms of rule 6.5 appear to be mandatory whereas the provisions of rule 6.20 appear to be expressed permissively. …

Wilson LJ agreed with the judgments of May LJ and Lord Neuberger MR. He said:

35.

…. I concur without hesitation in the dismissal of this appeal for the reasons given by May LJ; for the additional reasons given by Neuberger LJ; and particularly because of my disinclination to accept, without express mandate in the new procedural code, that inquiry into the validity of service of the claim form should depend upon where the defendant turns out to have happened to be present on the day of deemed service and, indeed, my concern that the inquiry would thus often degenerate into a difficult assessment of the truth of his assertion in such regard.

I respectfully entirely agree with the decision in City & Country Properties Ltd v Kamali. In that case, the defendant carried on business, and presumably resided, in this country (indeed, the claim was for unpaid rent due under the lease of his business premises), and relied on his temporary absence from the jurisdiction as a reason why the claim form had not been validly served. He was, by reason of his business if not his residence, subject to the jurisdiction. It is a very different thing to hold that, in effect, a company which has never had and has no presence within the jurisdiction may be validly served in this country, not by way of substituted service, but as of right if a director happens to be in this country. The artificiality in the present case of the Claimants serving TTK by personal service on their own employee accentuates the unreasonableness of the position if the Claimants are correct.

It is a general principle of the common law that absent specific provision (as in the rules for service out of the jurisdiction) the courts only exercise jurisdiction against those subject to, i.e. within, the jurisdiction. Temporary absence, for instance on holiday, does not result in a person not being subject to the jurisdiction. In my judgment, Lawrence Collins J’s statement of principle in Chellaram No. 2 was correct if read with that qualification, and was not inconsistent with the decision in City & Country Properties Ltd v Kamali.

Furthermore, I do not think that it is any answer that an individual who has no connection with this jurisdiction may be personally served if he is here temporarily. If he is here, to state the obvious, he is here. If a director of a foreign company which does not carry on business here is passing through this country, the company is not here.

If a claim has any real connection with this jurisdiction, permission to serve out of the jurisdiction may be sought and will be granted. I therefore fail to see the need or the rationale for CPR Part 6.5(3)(b) to apply to foreign companies that have no presence within the jurisdiction. It is significant that the thorough researches of Mr de la Mare and Mr Segan have not revealed any reported case in which there has been service under CPR Part 6.5(3)(b) on a foreign company that does not carry on business here.

I note that the current edition of Dicey, Morris & Collins on Conflict of Laws, at paragraph 11-128, summarises the facts of The Theodohos as illustration 9, with the statement: “The Court has no jurisdiction.”

I appreciate that in general we should not look at pre-CPR authorities in order to construe its provisions. However, I have looked at those authorities because they state and apply a general principle of the common law, against which the CPR is to be construed, and with a view to arriving at a sensible and reasonable interpretation. I find it curious that a company with no presence here should be liable to be served here personally, when it cannot be served otherwise than personally under CPR Part 6.9 entry 7, which permits service on a company other than one registered in England and Wales at “Any place within the jurisdiction where the company carries on its activities; or any place of business of the company within the jurisdiction”. TTK has no such place. One would think that service under Part 6.9 would always be available if personal service is available. I think that the requirements of Part 6.9 suggest that Part 6.5(3)(b) is similarly limited in its application.

The incongruity of the Claimants’ case on service is emphasised by the fact that, if they are right, the injunction they seek could be served on Mr Fasano in this country, and a failure by the company in India to comply with the injunction would be a contempt of court.

For all these reasons, I think it implicit in Part 6.5(3)(b) that it applies to companies within the jurisdiction, that is carrying on business within the jurisdiction. I would hold that “a company or corporation” in CPR Part 6.5(3)(b) means a company or corporation within the jurisdiction. It is inapplicable to a company that is not carrying on business within the jurisdiction.

Was TTK carrying on business within the jurisdiction?

On this issue, the Claimants rely on evidence that board meetings of TTK were held in England, and that approvals of business decisions of TTK were sought by email from India of executives of the Claimants (or of the Reckitt group) in London, and given by those executives in London.

Perhaps the leading authority on this issue is the judgment of the Court of Appeal in Adams v Cape Industries, to which I have already referred. The Court said:

Phrases referring to residence or presence within the jurisdiction, or equivalent phrases, have been used by way of shorthand reference to the condition (or one of the conditions) which a foreign corporation has to satisfy if it is to be amenable to the jurisdiction of the English court. and indeed they have been used more or less interchangeably by the courts. One typical example is the phraseology used by the Earl of Halsbury L.C. in La Compagnie Générale Transatlantique v. Thomas Law & Co., La Bourgogne [1899] A.C. 431, who said, at p. 433:

“It appears to me that as a consequence of these facts the appellants are resident here in the only sense in which a corporation can be resident - to use the phrase which Mr. Joseph Walton has so constantly referred to, they are ‘here;’ and, if they are here, they may be served.”

Perhaps the most helpful guidance in determining whether a foreign corporation is “here” so as to be amenable to the jurisdiction of our courts is the following passage from the judgment of Buckley L.J. in the Okura case [1914] 1 K.B. 715, 718-719:

“The point to be considered is, do the facts show that this corporation is carrying on its business in this country? In determining that question, three matters have to be considered. First, the acts relied on as showing that the corporation is carrying on business in this country must have continued for a sufficiently substantial period of time. That is the case here. Next, it is essential that these acts should have been done at some fixed place of business. If the acts relied on in this case amount to a carrying on of a business, there is no doubt that those acts were done at a fixed place of business. The third essential, and one which it is always more difficult to satisfy, is that the corporation must be ‘here’ by a person who carries on business for the corporation in this country. It is not enough to show that the corporation has an agent here; he must be an agent who does the corporation’s business for the corporation in this country. This involves the still more difficult question, what is meant exactly by the expression ‘doing business?’”

I do not consider that the holding of occasional board meetings in this country can satisfy this requirement. In any event, the joint venture had broken down before the claim form was served, and it is obvious that there is no present prospect of future board meetings here. This is emphasised by the fact that the Claimants allege that TTK is liable to them in damages as a co-conspirator of the other Defendants. The fact that approvals were given here for expenditure to be incurred by TTK in India is not the carrying on of business in this country. I add that, if it were, most holding companies would be held to be carrying on business in every country in which they had established a subsidiary.

I am fortified in this conclusion by the facts that when these proceedings were begun, the Claimants sought permission to serve TTK, as well as the other Defendants, out of the jurisdiction. The draft order for the injunction they sought included the grant of that permission. Mr de la Mare suggested that this was because the claim had been commenced in great haste, and the question whether TTK was carrying on business within the jurisdiction was overlooked. The Claimants are represented by competent solicitors and counsel, and if it were obvious that TTK was carrying on business within the jurisdiction I do not think the point would have been missed.

I would hold that the Claimants have not established even a good arguable case that TTK was carrying on business within the jurisdiction when it was purportedly served. It follows that I would hold that TTK was not duly served within the jurisdiction.

Waiver

I confess that I find it difficult to understand the basis of this contention. Mr de la Mare relies on the fact that the solicitors for the Defendants, while asserting that their clients were not subject to the jurisdiction, stated that they would file evidence in support of their protest to the jurisdiction. They did not do so. He also relies on the fact that the Defendants knew that Mann J had held that there had been good service on TTK, and on the framework of the CPR, which enables a defendant who disputes valid service to apply to set aside service and to object to the jurisdiction without submitting to the jurisdiction. But if TTK was not within the jurisdiction, and had not been validly served, it was not required to acknowledge service. It cannot be treated as if it had been validly served.

In my judgment there is no basis for holding that TTK has waived any right to assert that it has not been validly served.

It follows that the Claimants were not entitled to judgment against TTK in default of its filing an acknowledgment of service. In these circumstances, Issue (4) did not arise. It also followed that their appeal against the order of Peter Smith J had to be dismissed.

The incorporation of SSL’s standard terms in the contracts of sale

Condition 13.9 of SSL’s standard Terms and Conditions of Purchase is as follows:

The Contract shall be construed in accordance with and governed in all aspects by English law and the Supplier submits to the exclusive jurisdiction of the English Courts.

Other conditions refer to “the Company” as the entity contracting with the Supplier, and “the Company” is defined as “a company within the SSL International group of companies as indicated to the Supplier and its successors and assigns”. Whether TTK is within this definition was not explored before us, but the definition shows that these conditions were intended to operate as between Group companies and non-Group companies. However, I do not think it necessary to decide whether these standard terms were apt to apply to an intra-group contract.

Mann J referred to the documents by which the contracts of sale by TTK were made in paragraphs 56 to 62 of his judgment. We have been taken through a sample of such documents, and it is not suggested that his account is in any respect inaccurate, and I therefore set it out.

56.

The starting point for any given supply in any month is something which is called a "Category Planning Template" (or "CPT"). What effectively happens is that, on a month by month basis, the English company sends a spreadsheet to the Indian company specifying its requirements for that month, with a number of columns. Some of those columns contain the requirements of the English company and other columns are left for the Indian company to fill in. One of the most crucial columns is a column in which the Indian company indicates whether it will be supplying the relevant products within that month and, if so, by what date, or whether if it is going to be supplying at a later date, or there is to be a re-negotiation.

57.

In due course, any further negotiations will take place as to the finer points of any matters left outstanding in that spreadsheet but, eventually, the English companies indicate an acceptance of the state of affairs specified by the Indian company by telling the Indian company the purchase order which applies on a jurisdiction by jurisdiction basis to the various products (and there will be many of them) specified in the spreadsheet.

58.

In terms of offer and acceptance, the analysis seems to me reasonably clearly to be that the first English spreadsheet amounts to an offer, or perhaps an invitation to tender. The Indian response, when it fills in the various empty columns in the spreadsheet, amounts to a counter-offer, or conceivably the first offer, and that the communication of the purchase order number by the English companies is, so far as it corresponds to matters within the Indian spreadsheet, an acceptance which forms a contract. Whether there is one contract or a series of contracts each month does not matter for these purposes.

59.

The result is a contract, or contracts, arising every month for the supply of condoms for delivery, by and large, in the following month, sometimes in the month after that. The final step, therefore, in the formation of the contract is, therefore, the purchase order, or the communication of purchase order number.

60.

This is an odd procedure. The purchase order, on the evidence that I have seen, is not actually sent to India. The Indian company, therefore, never sees the purchase order and, on all the evidence that I have, has never seen a purchase order in all the years for which this procedure has been operating, but it knows that it is to supply because it has got the purchase order number and is told to which goods it relates. The purchase order itself, which is a one or two sheet document, stays in England and is not communicated, despite the fact it seems to be addressed to the Indian company.

61.

That purchase order has a reference to the claimant's standard terms of supply on the bottom of it. However, not being a document which is ever communicated to the other side it is not a manner in which the defendant can ever have been alerted to the existence of the terms or invited to subscribe to them.

62.

The reference on the bottom of these untransmitted purchase orders is the only relevant reference to the supply conditions. I am told there is a reference to them on the website but I do not see how that can be the basis of an acceptance of their incorporation by the Indian company.

The judge concluded that there was no evidence, in this exchange of documents, of the incorporation of the SSL Terms and Conditions in the contracts for the sale of condoms by TTK. I agree. The fact that there is a purchase order number does not alert the supplier to the fact that the standard purchase order includes or refers to such terms. Moreover, we were told by Mr de la Mare that extensive searches by the Claimants had not revealed any documents passing between TTK and either of the Claimants

The Claimants also rely on witness statements. Mann J referred them as follows:

66.

The first is a blanket assertion that the terms were in fact the basis of dealings between the parties. [Mr de la Mare] points to averments by his deponent, whose witness statements and affidavits he relies on in this case (Mr. Shuttleworth of the Reckitt Group) to the effect that previous senior employees, including directors, have stated that the dealings with the Indian company were always on the basis of the claimant's standard supply terms.

67.

Those averments in the witness statements and affidavits are, in my view, no more than assertions of a conclusion. They do not provide any evidential foundation whatsoever for the incorporation of those terms into the supply contracts. I give, by way of example, what is said by Mr. Shuttleworth at paragraph 50 of his first affidavit:

“As for the terms on which such business was placed, Mr. Shaun Davis (a JV Company director between 2007 and 2010 with responsibility for the group supply chain) [confirmed to me] that there is a long history of all orders for products being made on SSL standard terms & conditions from time to time ...”

68.

That is a mere assertion and no particulars are given. Accordingly, that is no evidential basis for a finding that the terms and conditions were incorporated into the dealings between the English companies, on the one hand, and the Indian company on the other. They do not even raise a good arguable case, a good prima facie case, or any sort of case, for injunctive or other purposes.

Before us, Mr de la Mare criticised the judge’s description of this evidence as “mere assertion”. I would accept that it is not mere assertion; but it is not much more. It cannot stand with the documentary evidence that is inconsistent with it, and the total lack of any document consistent with it, in circumstances in which it is the Claimants’ own case that the relevant contracts were made by the exchange of documents. In substance, therefore, I agree with the judge’s conclusion.

Mr de la Mare argued that it would be odd if detailed terms were not incorporated in the contracts made with TTK. I do not regard it as at all odd that contracts between a company and a joint venture company that it treats as a subsidiary, as TTK was by SSL, should not be the subject of any formal terms and conditions, let alone terms and conditions the wording of which is designed for contracts with third parties. In any event, if there were any oddity it would not establish that the standard terms were incorporated in the contracts.

Lastly on this issue, Mr de la Mare contended that the belief of Mr Davis, a director of TTK and an employee of SSL, and others, that the TTK contracts were subject to the SSL terms and conditions justified attributing those terms to the contracts. I do not think that a belief is sufficient. The documents by which the contracts were made, on the Claimants’ own case, show that Mr Davis’s belief was incorrect. I also agree with what Mann J said at paragraph 72 of his judgment:

72.

It seems to me that there is no basis for attributing a belief held by somebody whose primary function was on one side of a joint venture to the Joint Venture Company merely because he happened to be a director of that company. I cannot see any sensible basis on which that sort of belief should be attributed to the Joint Venture Company. For all I know, there may be Indian directors of the Joint Venture Company who would hold another view. One would not necessarily attribute that view to the company either. The mere belief of a nominee director about such matters is not something which, it appears to me, should even arguably be attributed to the company. Rather more than that is required. Accordingly, the attribution argument fails.

Mr de la Mare sought to rely on Article 23.1(b) of the Judgments Regulation (EC) No. 44/2001:

1.

If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:

(a)

in writing or evidenced in writing; or

(b)

in a form which accords with practices which the parties have established between themselves; or

(c)

in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

I do not think that this assists the Claimants. There is no sufficient basis on the evidence before us to establish any relevant agreement either in writing or in any other form which included the SSL terms and conditions. There is no basis for attributing to TTK any acceptance of or agreement to those terms and conditions. Mr Davis’s belief is not a basis for imposing conditions on TTK where there is no evidence of its agreement to or acceptance of them. The fact that the content of the terms and conditions is not apt for an intra-group transaction is a further reason for rejecting this contention.

It is instructive to compare the present case with Case C-214/89 Powell Duffryn plc v Wolfgang Petereit [1992] ECR I-1475. The case arose under Article 17 of the Convention on Jurisdiction and the Enforcement of Judgments of 27 September 1968 as amended by the 1978 Accession Convention in respect of Denmark, Ireland and the United Kingdom, the wording of which is materially the same as that of Article 23 of the Judgments Regulation. Powell Duffryn had subscribed for shares in a German company the statutes of which included a provision submitting any dispute with the company to the courts of Germany. The Court of Justice held that this provision was binding on Powell Duffryn. The Court held that the expression “agreement conferring jurisdiction” must be given an autonomous meaning independent of national laws. However:

23 Pursuant to Article 17 of the Brussels Convention an agreement conferring jurisdiction must be either in writing or evidenced in writing or, in international trade or commerce, in a form which accords with usage in that area and of which the parties are or ought to be aware.

24 As the Court held in Case 24/76 Estasis Salotti v Ruewa [1976] ECR 1831, paragraph 7, the purpose of the formal requirements imposed by Article 17 is to ensure that the consensus between the parties is in fact established.

25 It must nevertheless be emphasized that the situation of shareholders as regards the statutes of a company - which are the expression of the existence of a community of interests between the shareholders in the pursuit of a common objective - is different from that, referred to in the abovementioned judgment, of a party to a contract of sale as regards general conditions of sale.

26 First of all, in the legal systems of all the Contracting States the statutes of a company are in writing. Moreover, in the company law of all the Contracting States it is acknowledged that the statutes of companies play a particular role in so far as they constitute the basic instrument governing the relations between a shareholder and the company.

27 Furthermore, irrespective of how shares are acquired, every person who becomes a shareholder of a company knows, or ought to know, that he is bound by the company' s statutes and by the amendments made to them by the company's organs in accordance with the provisions of the applicable national law and the statutes.

28 Consequently, when the company’s statutes contain a clause conferring jurisdiction, every shareholder is deemed to be aware of that clause and actually to consent to the assignment of jurisdiction for which it provides if the statutes are lodged in a place to which the shareholder may have access, such as the seat of the company, or are contained in a public register.”

I particularly emphasise paragraphs 24 and 25. In the present case, there is no evidence of any consensus incorporating the SSL terms and conditions.

It follows that there is no good arguable case that the contracts with TTK were governed by English Law or that TTK agreed to the jurisdiction of the courts of England and Wales. It also follows that the proper law of the contracts is Indian law: Article 4.1(a) of Regulation (EC) No. 591/2008 on the law applicable to contractual obligations (Rome I).

It follows that Mann J made no error in his determination of the relevant facts, albeit on the basis of a good arguable case. I therefore turn to consider whether he erred in the exercise of his discretion by refusing to grant the Claimants permission to serve the Defendants other than TTK out of the jurisdiction (he having accepted that it had been served within the jurisdiction) and in refusing injunctive relief.

and (3) Did Mann J err in refusing in refusing injunctive relief and permission to serve out?

It is convenient to consider these issues, which are interconnected, together.

Mann J accepted, and I agree, that the Claimants have shown a good arguable case that the Defendants have committed economic torts causing them damage within the jurisdiction. He accepted, as do I, that on the evidence before the Court the Claimants have a strong case on the merits. He accepted that the loss caused by the alleged torts and breaches of contract was suffered in this country, and that the evidence to prove loss would be here. He nonetheless refused to grant injunctive relief against TTK. He said:

90.

The underlying joint venture is, so far as law is specified, subject to Indian law. The Joint Venture Company is an Indian company. It operates entirely in India. Its centre is in entirely in India. Its property is in India. On the Indian side of the joint venture, all the participants are in India and there is no proved connection with this jurisdiction. The supply contract is, on the present state of the evidence, subject to Indian law. Critically, any order that this court makes would have to be enforced in India. The goods which are subject to it are in India and the order would require them to be supplied out of India, but not necessarily to this jurisdiction. A lot of the goods, indeed most of the goods, would need to go to other jurisdictions.

91.

The last two points, and particularly the whereabouts and enforcement of any order I make are, in my judgment, crucial. This court will not make pointless orders or orders that are in vain. I am asked to make an order requiring an Indian company to supply. It is to be a mandatory order. Such orders are apt to require more policing than prohibitory orders and the need for care before they are made has been referred to in more than one judgment in the past. If I were to make the order sought, I would be requiring an Indian company with, at present, a majority of Indian directors, none of whom have any real presence in this jurisdiction, to do serious and detailed acts of supply and provision of information. It is not apparent to me how that could be enforced if it were broken. Since the company has no presence here, none of the traditional methods of enforcement would work. Assuming that directors who failed to procure compliance with a mandatory injunction can be guilty of contempt, which is quite a large assumption and quite how that works was not the subject of submissions by Mr. De la Mare, they are not here to have proceedings taken against them. It is not plain to me that Indian directors with no real connection with this jurisdiction should be at risk of such steps anyway, at least in the circumstances of this case.

92.

In short, the order I am invited to make is one with no apparent means of enforcement because its main subject has no presence here and no real connection with this jurisdiction. Those who might be secondarily liable are in the same position.

Mann J refused permission to serve the Defendants other than TTK out of the jurisdiction on the ground that the Claimants had not shown that England and Wales is the proper place to bring their claim, as required by CPR Part 6.37(3).

Mr de la Mare submitted that the condoms manufactured by TTK are ascertained goods, so that the Court would have jurisdiction under section 52 of the Sale of Goods Act 1979 to order their specific delivery. Since the condoms cannot be sold to anyone other than the Claimants, and are valueless to the Defendants, and damages are not an adequate remedy, the balance of convenience is clearly in favour of interim relief. The order sought by the Claimants does no more than require TTK to do what it has done countless times before, that is to say to deliver the condoms ordered by the Claimants. So far as permission to serve out is concerned, he submitted that Mann J focused excessively on what he considered to be the inappropriateness of injunctive relief, and failed properly to consider whether the courts of England and Wales are the proper place to bring the claim, given that the real issues will be the quantum of the Claimants’ damages, and the evidence relating to that is here and not in India.

Like Mann J, I think it best to consider first the question of interim injunctive relief. In my judgment, he was right to refuse to grant it, for a number of interrelated reasons.

First, I am not satisfied that the evidence shows that the condoms that would be subject to an order for specific delivery are ascertained goods. They are clearly not specific goods, since the evidence is that they (or most of them) did not exist at the date of the contracts in question. The Claimants’ evidence suggests that the undelivered balance of condoms that were the subject of the January, February, March and April orders have been manufactured, but the Claimants cannot identify which condoms that have been manufactured relate to which order (and therefore which contract), and they cannot say whether the condoms that have been manufactured include condoms that have not been the subject of any contract. If I apply the generally accepted definition of ascertained goods of Atkin LJ in Re Wait [1927] 1 Ch 606 “identified in accordance with the agreement after the contract of sale is made”, even if I treat the different contracts as one, there is no evidence that all the condoms in the possession of TTK are contract goods. In other words, it seems that one cannot simply point to a quantity of condoms and know that they are condoms that are the subject of a contract of sale.

This is not a case in which one can simply specify the goods to be delivered and make an order that TTK give possession of them to the Claimants. It is not known whether they are in a deliverable state: whether or not they or any of them have been packed and placed on palettes or in containers, properly secured and appropriately sorted as to type of condom and in relation to ultimate destination (for example, those intended to be sold in France separately from those intended to be sold elsewhere). In the absence of cooperation on the part of TTK, the Claimants would have themselves to put the condoms in a deliverable state. In his witness statement of 12 August 2011, Mr Olarou of the Claimants’ solicitors candidly states:

Mr Thomas [of the Claimants] has told me that if [TTK] offers no cooperation on the ground then [Reckitt Benckiser] personnel would essentially have to do the job normally done by [TTK] personnel, which is to go round the factories collecting the goods from wherever they may be stored on the site and arranging them into shipment batches before they can be loaded into containers. This would require [Reckitt Benckiser] to find and engage sufficient numbers of suitably qualified personnel ….

Furthermore, the Claimants are unable to state what condoms manufactured by TTK are in which of its factories, there being factories in Pallavaram, Puducheri and Virudhunagar.

In these circumstances, I am not satisfied that the evidence establishes with a sufficient degree of assurance that any of the condoms are “ascertained goods” so as to justify a mandatory interim injunction, for which a strong case is required, particularly where it is to be performed outside the jurisdiction. Mr de la Mare submitted that the Claimants are entitled to an injunction even if one would not be available after trial under section 52 of the Sale of Goods Act, by reason of the Claimants’ claims in tort, or by reason of their claims under the joint venture agreement. It would be unusual indeed to make an order for specific delivery on the basis of a non-proprietary tort claim. However, it seems to me that the difficulties faced by the Claimants under section 52 are not technical, but are symptomatic of more general objections to the grant of injunctive relief.

In addition to their difficulties in relation to the condoms themselves, the Claimants are unable to identify the documents that must be provided or obtained by TTK in order for the condoms that have been ordered to be lawfully exported from India. Any order made by the Court would have had to have been in general terms.

The lack of information to which I have referred was reflected in the terms of the draft order sought by the Claimants. The documents required for the export of the condoms and to be provided by TTK were described as “the export, import, qualitative compliance and other documents ordinarily provided, prepared and/or arranged by [TTK] in respect of the Goods as required for their export from India and import into the relevant destination territories … including without limitation: (a) packing lists, by territory, …; (b) invoices (by territory, as aforesaid) detailing the price of the Goods; (c) such certificates of origin as are and have customarily been required for such territory; and (d) such certificates of analysis as a customarily been generated”. Tellingly, the draft would have required TTK to provide a witness statement setting out details of “all condoms and other goods manufactured and packed by or for it since 1 February 2011, specifying the number and intended market(s) by reference to each individual stock-keeping unit”, but also of those condoms that had been the subject of orders from the Claimants that had been accepted by TTK but had not yet been manufactured and packed.

These difficulties led me to conclude that the Court was asked to make an order that would require an unacceptable degree of supervision in a foreign land. The judge referred to the difficulties of supervision and enforcement, and I agree with him. The room for dispute as to the requirements of the order, if granted, is obvious. The evidence relevant to any such dispute would be in India, and the costs, difficulties and complications of enforcement proceedings in this country are obvious. Moreover, since it is the Claimants’ case that the Defendants have failed to comply with the order made by the CLB in India, I see no reason to believe that they will be more cooperative in relation to an order made by our courts.

It is a further reason to refuse relief that we should be interfering in a matter that is already before the CLB in India. The judge described the CLB as an administrative body, but it has all the hallmarks of a judicial body: it addresses disputes, considers evidence and submissions and makes orders and grants relief, including interim relief, to resolve those disputes; its proceedings are commenced by presentation of a petition, the parties were represented before it by counsel, and it gives reasons for its decisions.

The matters to which I have referred led me to conclude that Mann J was right to conclude that these claims, arising under contracts governed by Indian law, relating to a company registered in India, to events in India, and against individuals in India, should be litigated in India. This is not an appropriate or proper forum for this litigation. It follows that the judge was right to refuse injunctive relief, and right to refuse permission to serve the Defendants out of the jurisdiction.

I had considerable sympathy with the Claimants’ case. Nonetheless, for the reasons I have set out above, I concluded that their appeal against the order made by Mann J also had to be dismissed.

I agree.

I also agree.