Clifford Chance LLP v Société Générale SA

INTRODUCTION

The Defendant (“SocGen”) applies to challenge the court’s jurisdiction to hear this claim, on the basis that:

The substantive dispute relates to a professional negligence claim brought by SocGen against the Claimants (to whom I shall refer collectively as “Clifford Chance”) alleging that they negligently handled a dispute between SocGen and Goldas Kuyumculuk Sanayi Ithalat Ihracat AS and other companies in the same group (together “Goldas”, and the “Goldas Dispute”).

In the present proceedings before this court, the First Claimant (“CC LLP”) and the Second Claimant (“CC Europe”) seek declarations that they are not liable to SocGen in professional negligence, and that CC Europe was not retained by SocGen at all.

SocGen has subsequently commenced proceedings against CC LLP and CC Europe in the High Court of Paris, seeking damages in excess of €140 million. The first hearing in that court is due to take place in March 2024.

I have reached the conclusion, for the reasons which follow, that SocGen’s challenge to the court’s jurisdiction should be dismissed.

PARTIES

SocGen is an international bank which was founded and is headquartered in France. It is registered in England as an overseas company, and has a large number of subsidiaries, both in France and abroad, as part of its group (“SocGen Group”).

CC LLP is a limited liability partnership incorporated under the laws of England and Wales. It carries on its legal practice from London and through overseas branches in Abu Dhabi, Amsterdam, Beijing, Brussels, Dubai and Shanghai. CC LLP also controls a large number of other subsidiary entities through which it, amongst other things, provides legal services in other jurisdictions.

CC LLP was incorporated on 1 November 2006. Between January 2000 and December 2006, the principal Clifford Chance entity was Clifford Chance Limited Liability Partnership (“CC USA”), a limited liability partnership incorporated under the laws of the State of New York in the United States of America. CC LLP replaced CC USA as the principal Clifford Chance entity in December 2006.

CC Europe is one of the subsidiary entities controlled by CC LLP and is the legal entity through which Clifford Chance currently provides legal services in France. It is a limited liability partnership incorporated under the laws of England and Wales.

CC Europe was incorporated on 24 March 2005. Before that, Clifford Chance provided legal services in France through a different entity, Clifford Chance SELAFA (“CC Selafa”). CC Selafa is a limited liability company for self-employed French advocates in Paris, incorporated under the laws of France, and was at all material times regulated by the Avocats du Barreau de Paris (the Paris Bar). The legal practice of CC Selafa was transferred to CC Europe on 6 July 2005, on which date CC Selafa and CC Europe entered into a business lease under which CC Selafa leased the Paris practice to CC Europe. Since then, Clifford Chance’s legal practice in France has been conducted through CC Europe.

FACTS

Framework Agreement No. 2634 (“the 2003 Framework Agreement”) was agreed between CC Selafa and SocGen for a period of three years from 1 January 2003 to 31 December 2005, “renewable with the agreement of both parties” (Article 2).

The agreement stated that it was made between CC Selafa, “hereinafter referred to as the “Firm””. Article 1.1 stated (in translation, prepared at the time of the original document):

Article 1.2 stated that:

Article 1.4 provided for SocGen to appoint an in-house lawyer to be responsible, on behalf of the SocGen group, “for relations with the Firm, on a worldwide basis”, as well as appointing in-house lawyers in all regions and/or major countries of the world to be responsible for relations with the Firm. Similarly, clause 1.5 of the 2003 Framework Agreement required “the Firm” to appoint a partner to assume overall responsibility for the relationship with SocGen, and also a lawyer to be SocGen’s point of contact “in each of the countries where the Firm has an office”. Annex 4 contained a list of contacts for each of the offices of Clifford Chance (including in England).

Article 3.3 included the following:

Article 3.4 stated that:

Article 5 provided, inter alia, that “the [F]irm must appoint a partner responsible for each new matter”. (The capitalisation is not present in the translation but is in the original French.) Article 6 provided for the Firm to keep SocGen’s relevant instructing individual regularly informed.

Articles 7 and 8 dealt further with fees. Article 7.1 stated:

Article 8 set out the preferential pricing terms available to SocGen, under which the maximum hourly rates for each type of fee earner in France, the United Kingdom and the United States were agreed. Appendix 6 set out the maximum hourly rates for a number of other Clifford Chance offices in Europe, Asia and the Middle East. Appendix 7 was a prescribed pro forma for annual and half-yearly reporting on all engagements, including a column for the “Law firm office” to be stated.

Article 10 provided that, unless otherwise agreed, the SocGen Group expected to be invoiced on a monthly basis. Invoices were required to contain at least the information detailed in Appendix 3. That appendix required a range of information including reference to the matter, name of responsible partner and fee-earners, and the name of the SocGen representation.

Article 11 required Clifford Chance to provide annual and half-yearly reports setting out details of the matters being handled by the various offices of Clifford Chance and containing the information required by Appendix 7. This included “Law firm office location”, “Type of work” and “Partner responsible”.

Article 16 required “the Firm” to hold appropriate professional indemnity insurance and to provide to the SocGen lawyer in charge of the overall relation with the Firm a completed certificate in the form attached in Appendix 5. The evidence includes a ‘Verification of Insurance’ provided by CC USA dated September 2002, relating to the policy year ending 31 August 2003, explaining that all Clifford Chance entities worldwide had cover of a specified amount for claims brought anywhere in the world, and providing further details.

Article 17 read:

In September 2006, CC Europe and SocGen entered into “Amendment No.1” to the 2003 Framework Agreement (“the 2006 Framework Agreement”). CC Europe was defined as “the Firm”, SocGen as “the Client”, and CC Europe and SocGen individually or together as “the Parties”. The agreement recorded that “[o]n 10/09/2003, the Parties signed a Referenced Contract No. 2634 under which the Firm undertook to provide legal services”. The agreement was executed on behalf of CC Europe by Yves Wehrli, its Managing Partner.

By Article 1, CC Europe and SocGen extended the 2003 Framework Agreement, with some minor amendments, for a period of three years from 1 January 2006 to 31 December 2008.

Article 3.1 provided for maximum preferential hourly rates, as part of which Article 3.1(b) stated that “the maximum hourly rates applicable by the Firm in France, the United Kingdom and the United States for any type of case are set out below. The SG Group will also receive a rebate on the standard hourly rates of the Firm’s other offices”. A table of rates followed. CC LLP, but not CC Europe, had offices in the UK.

By Article 5 of the 2006 Framework Agreement, the Firm undertook to obtain and maintain professional indemnity insurance throughout the duration of the contract, stating that the certificate of insurance could be found in Appendix 2. The certificate found in Appendix 2 stated that it was strictly confidential and “intended solely for Société Générale in the context of the Framework Contract”. The certificate referred to the assured as CC LLP.

Like the 2003 Framework Agreement, the 2006 Framework Agreement included (at Appendix 4) a list of contacts for all the offices of Clifford Chance.

In February 2008, SocGen sought Clifford Chance’s assistance with the Goldas Dispute. Goldas is an international gold jewellery manufacturer based in Turkey and Dubai. In 2007 and 2008 SocGen supplied 15.725 metric tonnes of gold bullion (worth around US$483 million at the time) to Goldas on a consignment basis but subsequently learned that Goldas had begun using the gold without paying for it.

The evidence served on behalf of Clifford Chance (in a witness statement from their solicitor, Mr Hewetson of Reed Smith) indicates that in February 2008, SocGen approached CC Europe in Paris for assistance with its difficulties with Goldas, but CC Europe was unable to itself assist SocGen with the Goldas Dispute and was not itself instructed in connection with the same. SocGen were instead referred by Olivier Bertin-Mourot, a Partner at CC Europe, to James Abbott, a Partner at Clifford Chance in Dubai (a branch of CC LLP) (“CC Dubai”) on 20 February 2008 and CC Dubai were instructed by SocGen on the Goldas Dispute. The Goldas Dispute did not in the event remain with CC Dubai and on 26 February 2008 was instead passed to Clifford Chance in London (and thus again CC LLP) in circumstances where the Bullion Agreements with which the dispute was concerned were subject to English law and jurisdiction clauses. Clifford Chance in London was instructed by SocGen and the retained Partner for the matter was Denis Brock, a Partner in the Litigation & Dispute Resolution practice at CC LLP. On transfer to CC LLP in London, the file for the Goldas Dispute at CC LLP in Dubai numbered 75-40351584 was closed and a fresh matter number was opened in London under number 70-40353181. For the remainder of Clifford Chance’s involvement with the Goldas Dispute, the matter remained in London with CC LLP.

Mr Hewetson’s evidence also states that no formal written retainer was agreed between SocGen and CC LLP to govern the Goldas instruction. (I discuss later the regulatory position in this regard: see § 94 below.) CC LLP (and not CC Europe) invoiced SocGen in respect of professional fees and disbursements in relation to the Goldas Dispute, and SocGen made payment to CC LLP.

Written communications passing between Mr Brock of CC LLP and Edward Pinnell of SocGen shortly after CC LLP’s instruction on 20 February 2008 indicate that discussions took place as to the work to be undertaken, the basis on which SocGen would be charged and the likely cost of that work. Mr Brock’s letter of 4 March 2008, accompanying CC LLP’s first invoice, included the following passage:

SocGen, represented by CC LLP, obtained two worldwide freezing orders against Goldas in the English Commercial Court in March and April 2008. As required under the terms of the freezing orders, SocGen issued two claim forms, one against the Goldas companies in Turkey, and the other against a Goldas company in Dubai, and attempted to serve these on Goldas. However, Goldas did not file an acknowledgement of service and instead wrote to Clifford Chance that they considered that the service of the claim forms was defective.

On SocGen’s case, the attempted service was made with Clifford Chance’s advice. Clifford Chance’s case is that SocGen’s own Turkish lawyers, Pekin & Pekin (“Pekin”) advised on and were responsible for service on Goldas in Turkey; thereafter confirmed that good service had been effected as a matter of Turkish law; gave advice about the difficulties SocGen would face in enforcing a judgment in Turkey, and recommended that SocGen instead commence bankruptcy proceedings in Turkey against Goldas. Mr Hewetson states:

Framework Contract CW 22478 (“the 2009 Framework Agreement”) was entered into between CC Europe (defined as “the Firm”) and SocGen in respect of the period from 1 January 2009 to 31 December 2011. The description of parties indicated that CC Europe was represented by Yves Wehrli, though “acting as shareholder”.

Articles 1.1 and 1.2 provided:

The substantive provisions of the 2009 Framework Agreement were similar to those in the previous agreements, and were directed at engagements between SocGen and Clifford Chance worldwide. Article 6.1, relating to fees, stated:

Article 7.1 referred to the “maximum preferential hourly rates applicable by the Firm to the SG Group”, which (per Article 7.2 had to be applied in lieu of ‘international rates’); and Article 7.3 stated that the maximum hourly rates could be found in Appendix 5. Appendix 5 set out maximum hourly rates by country and level of fee-earner, and also provided for immediate percentage rebates (discounts) on the hourly rates, the rebate for various countries including Great Britain being 7%.

Article 10 required the Firm to submit semi-annual reports of all invoices sent to SocGen entities and its clients, including the information set out in an Appendix.

The jurisdiction clause on which SocGen relies first appeared in the 2009 Framework Agreement, and was replicated in the 2012 and 2015 Agreements. It provides (in translation):

Invoices for work on the Goldas Dispute, for example one dated 5 August 2019, indicate that CC LLP applied the agreed hourly rates, i.e. the updated rates set out in Appendix 5 to the 2009 Framework Agreement, and the agreed 7% discount.

Reports dating from at least 2010 indicate that CC LLP was providing to SocGen periodic reports that were compliant with the reporting requirements set out in the 2009 Framework Agreement, which included details of the work done on the Goldas Dispute.

By 2012, SocGen had introduced a standardised set of “Terms and Conditions Applicable to the Relationship between the [SocGen] Group and its Entities and Law Firms”. The Preamble to these stated:

Article 3 of the General Terms and Conditions provided inter alia that:

Article 5.1 provided that the parties would “define maximum preferential hourly rates excluding applicable taxes based on six levels of lawyer experience, determined as follows in each country in which the Firm operates”. Other Articles dealt with contact persons, referrals processing of files, expenses/disbursements, invoicing, reporting, confidentiality and conflicts of interest. Article 11 on insurance, similarly to previous Framework Agreements, required that “[t]he Firm shall hold a professional indemnity insurance policy adequately covering its activities and provide the SG Group with a copy of this up-to-date insurance policy or a certificate specifying the amount covered (see Appendix 4)”.

Article 12 of the General Terms and Conditions dealt with law and jurisdiction:

The General Terms and Conditions were executed by SocGen and CC Europe on or about 12 April 2012.

The accompanying “Special Conditions Applicable to the Relationship between the [SocGen] Group and its Entities and Clifford Chance” were agreed for a period of five years from 1 January 2012 to 31 December 2016. The statement of the parties at the start began:

Articles 1 and 2 stated:

Article 3 dealt with contact persons. Article 3.2 stated:

Article 4 concerned preferential price conditions between Clifford Chance and the SocGen Group, and stated:

The Special Conditions were executed on CC Europe’s behalf by Yves Wehrli as Managing Partner on or about 18 December 2014.

Notwithstanding Goldas’ complaints, no further attempts at serving the claim forms were made. Clifford Chance continued to advise SocGen in respect of the Goldas Dispute, which took the form of progressing insolvency proceedings in Turkey. Not having been served, the claim forms expired and SocGen’s claims against Goldas became time-barred in 2014.

Amendment No.1 to the Special Conditions (“the 2015 Framework Agreement”) extended the 2012 Framework Agreement for a further year, to 31 December 2017. The statement of the parties at the beginning was the same as in the 2012 Special Conditions, apart from a change to the named SocGen representatives.

Articles 1, 3 and 4 stated:

In February 2016, Goldas applied to strike out SocGen’s claims in the English courts on the basis that the claim forms had not been served and had expired and that SocGen’s claims were time-barred. These applications resulted in SocGen’s claims against Goldas being struck out on the grounds relied upon by Goldas, in a judgment of the High Court dated 3 April 2017 ([2017] EWHC 667 (Comm)) which was upheld in the Court of Appeal in a judgment dated 15 May 2018 ([2018] EWCA Civ 1093).

CC LLP continued to apply the updated agreed hourly rates in its invoices for work on the Goldas Dispute, for example in an invoice dated 15 June 2016 for work done on the strike-out application.

Clifford Chance’s retainer was terminated in May 2017.

By a letter dated 23 February 2022, SocGen served on CC Europe a “letter de mise en demeure”, the equivalent to a Letter of Claim.

By a claim form and particulars of claim dated 30 May 2022, Clifford Chance served proceedings on SocGen at its address in Canary Wharf. SocGen does not dispute that the proceedings were validly served, and filed an acknowledgement of service on 20 June 2022 in which it stated its intention to dispute the jurisdiction of this court.

Thereafter the parties entered into a standstill and extension agreement. Following expiry of that agreement, SocGen issued its present application on 27 January 2023, supported by the first witness statement of Mr Fawell of its solicitors, Signature Litigation LLP.

Clifford Chance on 24 February 2024 served its evidence in response, comprising the witness statement from Mr Hewetson and the first witness statement of Daniel Kadar, a partner in Reed Smith’s Paris office who is a French-qualified Avocat à la Cour. Clifford Chance applied to rely on Mr Kadar’s witness statement as expert evidence as to French law under CPR 35.4; and that application was granted permission by Bright J on 16 March 2023.

Further witness statements were served by both sides in due course, including a witness statement dated 7 July 2023 from Mr Christopher Perrin, a partner in CC LLP who was the firm’s Executive Partner and General Counsel from 2003 to 2021. I return to his evidence later.

Court proceedings in France have been initiated, with the first French court hearing listed for 7 March 2024.

PRINCIPLES RELEVANT TO MAIN JURISDICTION ISSUE

It was common ground that the main principles of contractual interpretation in French law are settled law and since 2016 have been codified as part of the French Civil Code. The key points of relevance are as follows.

The relevant principles of the French law of agency are set out as follows in SocGen’s evidence (Mr Fawell’s 2^nd witness statement):

Insofar as it is relevant to decide whether an unwritten retainer could have arisen when SocGen instructed CC LLP in February 2008, the applicable law is determined by applying the Rome Convention on the Law Applicable to Contractual Obligations (80/934/EEC) (the “Rome Convention”). That is because any such contract of retainer will have been concluded on or before 17 December 2009 (when Regulation 593/2008 on the law applicable to contractual obligations, the ‘Rome I’ Regulation, came into force).

Pursuant to Article 8(1) of the Rome Convention, the existence and validity of a contract is determined by the law that would govern it under the Rome Convention (subject to a limited exception in art. 8(2)). Under Article 3 that would be the law chosen by the parties. Absent a choice of law by the parties, the law governing the retainer, as a contract for the provision of services, would ordinarily be the law of the country where the service provider has its habitual residence: see Article 4(1)(b). That default position can be displaced under Article 4(3) if the contract is manifestly more closely connected with another country.

Under English law, if there has been no written retainer between a lawyer and his/her client, one may be inferred from the conduct of the parties. The client’s instruction to the lawyer, and the lawyer’s acceptance of it, can give rise to:

The general principles about implied (or inferred) contracts indicate that the ordinary prerequisites to contract formation must be satisfied, including intention to create legal relations. Such intention can be inferred where it is necessary, typically where the parties have acted in a way which is consistent only with an intention to make a contract, as opposed to where the parties would or might have acted exactly as they did in the absence of a contract (see, e.g., Brown v InnovatorOne plc [2012] EWHC 1321 (Comm) §§ 1014-1016 (Hamblen J).

SocGen cites in the context Dean v Allin & Watts [2001] EWCA Civ 758, [2001] 2 Lloyd’s Rep. 249, where the Court of Appeal said:

Although SocGen suggests that this is the ‘leading case’ on inferred retainers, it focussed on the situation where a lawyer instructed by one party (there, the borrowers in a property transaction) owed duties to another party (the lender). The same applies to another case cited by SocGen, Caliendo v Mischon de Reya [2016] EWHC 160 (Ch) §§ 681 ff, where there was a dispute about whether the firm had been retained by the claimants or only by another party. In such cases, although the test in principle may well be the same, it is likely to be harder to satisfy than in the simple case where the lawyer has no separate involvement but simply accepts instructions from a client without a written retainer.

Beyond those set out above, neither party has identified any principles of French law on the construction of contracts that apply specifically when construing and applying jurisdiction clauses. Accordingly, and as set out below, the relevant jurisdiction clause in the Framework Agreement falls to be applied according to its clear terms.

In the event that one or more of the Framework Agreements applies in addition to an implied contract of retainer, it would be necessary to consider the principles for construing jurisdiction clauses in multi-contract disputes. The English principles may be summarised as follows (Dicey, Morris & Collins on the Conflict of Laws, 16th ed., § 12-082):

Where the contracts are connected and are part of one package, as in UBS AG v HSH Nordbank AG [2009] EWCA Civ 585 and Sebastian Holdings Inc v Deutsche Bank AG [2010] EWCA Civ 998, the jurisdiction clause in the agreement “at the centre of gravity” is more likely to apply to the package of contracts. This is contrasted from a situation where different agreements were found to have been entered into for different aspects of an overall relationship (e.g. Trust Risk Group SPA v AmTrust Europe Ltd [2015] EWCA Civ 437; [2016] 1 All ER (Comm) 325).

In Etihad Airways v Prof. Dr. Lucas Flother [2019] EWHC 3107 (Comm); [2020] QB 793, an exclusive jurisdiction clause in a Facility Agreement was found to apply to a Comfort Letter, which did not have any jurisdiction clause but was negotiated and executed at the same time as the Facility Agreement as part of a suite of agreements. It was held that while it is entirely a matter of construction whether a jurisdiction agreement in contract A, even where it was expressed in wide language, was intended to capture disputes under contract B, the absence of any competing jurisdiction clause in any agreements within a particular set of agreements concluded by the parties for the same purpose, at the same time, and with the same subject matter can be a relevant consideration (and was found to be in the case) (§ 102(v), approved in Trusk Risk Group at § 46).

Whether a jurisdiction agreement in a later contract can apply to a contract concluded prior to the jurisdiction agreement coming into existence is essentially a matter of construction. In Sapinda Invest v Altera [2017] EWHC 871 (Comm); [2018] 1 All ER (Comm) 71 the court found that a claim for a breach of an alleged oral agreement for the sale of shares fell within the jurisdiction clause in an agreement for the sale of further shares made a few days later which conferred jurisdiction on the English court. This was on the basis that the agreements were interdependent and dealt with the same subject matter and the Court found that objectively there was consensus that the English courts should have jurisdiction. The position may well be different where two contracts are made at different times and relate to different subject-matters:

Where a contract provides that all disputes between the parties are to be referred to the exclusive jurisdiction of a foreign tribunal, the English court will stay proceedings instituted in England in breach of such agreement unless the claimant can satisfy the court that strong reasons exist to allow them to continue (Dicey, 12R-062(3), citing among other cases The Eleftheria [1970] P. 94, 100 and Donohue v Armco [2001] UKHL 64 § 24). Lord Bingham in Donoghue stated, for example, that “[t]he authorities show that the English court may well decline to grant an injunction or a stay, as the case may be, where the interests of parties other than the parties bound by the exclusive jurisdiction clause are involved or grounds of claim not the subject of the clause are part of the relevant dispute so that there is a risk of parallel proceedings and inconsistent decisions” (§ 27). Hence Briggs states:

The party alleging a binding jurisdiction agreement needs to show a good arguable case. In practice this means that:

In exercising its discretion whether to grant a stay in a case where a jurisdiction clause applies, the following factors have been identified as relevant:

The fact that a court was contractually chosen by the parties will be taken as clear evidence that it is an available forum (Dicey § 12-109). It is in principle not open to a party to object to the exercise of the chosen jurisdiction on grounds that should have been foreseeable when the agreement was made, including inconvenience as a result of witnesses and documents being in another country, inconsistent findings as a result of concurrent proceedings, or that the chosen forum has no rule that costs follow the event (ibid.).

APPLICATION TO THE FACTS

SocGen’s primary submission is that the applicable jurisdiction clause is the one found in the 2015 Framework Agreement, because that was the Framework Agreement in force and governing the relationship between the parties at the time the dispute between SocGen and Clifford Chance arose. I return to that submission later, after considering the position chronologically.

The focus, at least initially, must be on the relationship between CC LLP and SocGen. There can be no serious doubt that CC LLP, and not CC Europe, was the entity which handled the Goldas Dispute on SocGen’s behalf:

CC LLP was instructed in February 2008. At that time, the 2006 Framework Agreement was in force as between SocGen and CC Europe. CC LLP, incorporated on 1 November 2006, did not exist at the time when the 2003 Framework Agreement and the 2006 Framework Agreement were made.

There was some discussion during oral submissions of whether CC LLP may have become a party to the 2006 Framework Agreement as part of a transfer of business from CC USA. However, the evidence did not address this matter, and counsel for SocGen made clear that SocGen was not asking me to infer than CC LLP became party to the 2006 Framework Agreement as part of an assumption of CC USA’s rights and obligations.

SocGen did submit, however, that CC LLP became a party to the 2006 Framework Agreement by conduct, when it accepted instructions from SocGen and began to charge fees consistent with the terms of that Framework Agreement. It submits that each of the successive Framework Agreements was, as its terms showed, intended to govern the relationship between all of the entities in the SocGen group and all of Clifford Chance’s offices in France and throughout the world. They implemented a panel agreement between a global law firm and an international bank, for which work was undertaken in multiple jurisdictions. It would be absurd if the Framework Agreements were binding only on CC Europe, and as regards any other Clifford Chance entity were merely precursors to individual retainers with entirely separate and independent terms and conditions.

I am unable to accept that submission. It is true that the 2003 and 2006 Framework Agreements set out principles and procedures that were evidently intended to be applied to work done for SocGen entities by Clifford Chance entities across the world. However, there is no indication in the terms of either agreement that that was to be achieved by making all those entities, on both sides, parties to the Framework Agreements themselves, either at the outset of the Framework Agreement or subsequently. Neither agreement contained language suggesting that SocGen or CC Europe had contracted as agent for all their related entities, and each named CC Europe as the sole party on the Clifford Chance side. Neither Framework Agreement made provision for additional parties to be added later. The terms of both Framework Agreements are consistent with CC Europe having undertaken that it and other Clifford Chance entities would apply no more than the maximum rates specified in the Framework Agreements, and would perform the other tasks set out in the agreements relating to the conduct of work for the SocGen group, but without those other Clifford Chance entities themselves having to be or become party to or bound by the terms of the Framework Agreements.

That view is, further, consistent with the fact that the 2003 and 2006 Framework Agreements (like the later Framework Agreements) set out only the maximum rates but left the actual fee structures and rates as a matter for negotiation on a case-by-case basis: see §§ 16, 18, 19 and 26 above. There is, in my view, nothing absurd or unlikely about a situation where the Framework Agreements were just that: frameworks setting out terms on which (CC Europe promised) individual retainers would be carried out for SocGen entities by Clifford Chance entities, including maximum rates and other matters relating to the conduct of case work.

Article 1.2 of the 2003 Framework Agreement (unchanged by the 2006 agreement) stated that “[t]his Contract defines the principles of SG Group’s purchasing policy in the area of the services provided by the Firm”. Consistent with that stated purpose, the provisions of the Framework Agreements concern general matters such as the designation of points of contact, preferential hourly rates to be charged to SocGen, the calculation of an annual discount by reference to the fees charged in that year to SocGen, conflicts and confidentiality, the ownership of documents and invoicing and expenses. They provided agreed parameters within which individual instructions could be negotiated and agreed between the relevant Clifford Chance entity and SocGen/its relevant subsidiary, including both the scope of work on the particular retainer and the actual remuneration. Thus Article 3.3 of the 2003 Framework Agreement contemplated engagement letters being used for individual retainers, and Article 7.1 expressly envisaged the actual fees (as distinct from maximum fees) being a matter for individual negotiation.

Applying the French principles of contract interpretation summarised earlier, nothing in the 2003 and 2006 Framework Agreements stated unambiguously that other Clifford Chance entities were themselves to be regarded as – or that Clifford Chance Europe promised that those other entities would become – parties to the Framework Agreements themselves. Nor do any other relevant documents indicate that that was the parties’ intention. The parties’ post-contract conduct, including CC LLP’s letter of 4 March 2008 referring to “agreed rates”, and CC LLP having invoiced consistently with the Framework Agreement rates, does not point to that conclusion. It is consistent with SocGen and Clifford Chance having agreed a retainer including rates within the maximum hourly rates specified in the Framework Agreement that Clifford Chance Europe had entered into with SocGen. It does not demonstrate or evidence an agreement between SocGen and Clifford Chance LLP that the latter entity would thereby become an additional party to the Framework Agreement, nor that it had agreed to incorporate the entirety of the terms of the Framework Agreement (including the choice of law clause) into its contract of retainer.

Equally, the provision of an insurance certificate naming CC LLP does not advance the argument. It could not be said that the insurance policy would be ineffective to cover CC Europe unless the term “the Firm” in the Framework Agreements included CC LLP. If the certificate did reflect a single policy of insurance, there is nothing unusual about two legally separate, but connected, entities such as CC LLP and CC Europe sharing a single policy of insurance in the name of one alone.

Further, CC Europe’s undertaking that the things set out in the Framework Agreements would be done by other Clifford Chance entities on matters abroad did not mean that CC Europe undertook that individual contracts of retainer between SocGen and other Clifford Chance entities would themselves be subject to French law (as were the 2003 and 2006 Framework Agreements themselves). The choice of law provisions governed the Framework Agreements themselves, as relationships between SocGen and CC Europe. It does not follow that a similar provision was required to be replicated or incorporated in individual retainers anywhere in the world. Indeed, it would be surprising if a retainer for, say, the conduct of litigation in the USA or the UK, inevitably governed by locally-imposed procedural and professional duties, would nonetheless be subject to French law. That is the case, in my view, even though some matters on which SocGen instructed Clifford Chance would be likely to involve multiple jurisdictions: it would remain surprising for a retainer for the conduct of litigation in the USA and the UK to be subject to French law. Again applying French principles of contract interpretation, the 2003 and 2006 agreements did not unambiguously state that the choice of law provisions they included were required to be replicated or incorporated in individual retainers anywhere in the world, and there is nothing in the remainder of the contract or other documents, or the parties’ pre or post contractual dealings, that would suggest that that was the case.

Equally, even if CC LLP had become a party to the 2006 Framework Agreement by conduct, it would not follow that the choice of law clause in that contract applied to individual retainers all over the world. Similar considerations to those referred to in § 92 above apply again. French law would govern the general relationship set out in the Framework Agreement itself, but would not necessarily apply to individual retainers. In the absence of a clear and specific indication that the parties intended such a result, I consider it unlikely that they would have envisaged French law apply to every kind of work wherever in the world it was carried out.

It follows from the foregoing paragraphs that when Clifford Chance LLP accepted SocGen’s instructions in February 2008, any contract of retainer that arose was an inferred one of the kind mentioned in § 69 above. It is very likely that such a retainer did arise: commercial parties are unlikely to have entered into a lawyer/client relationship other than on a contractual basis. The governing law of that retainer will have been the law of England, as the place where Clifford Chance LLP was habitually resident, and where its relevant branch was providing services in English litigation. It was suggested at one stage in the evidence that an unwritten retainer was unlikely because it would not have enabled CC LLP to comply with its regulatory obligations under rules 2.02 and 2.03 the Solicitors Code of Conduct 2007 regarding provision of information. However, Mr Hewetson has explained (in evidence that is not challenged) that (a) rules 2.02(3) and 2.03(7) each provided that insofar as a firm could demonstrate that it was inappropriate for some or all of the information stipulated by rules 2.02 and 2.03 respectively to be supplied to a client, this would not constitute a breach of the rule; (b) a client of SocGen’s sophistication is unlikely to have required all the information stipulated by rules 2.02 and 2.03 in order to understand the matters to which it would relate (the effect of the instruction and CC LLP’s responsibilities thereunder, the likely cost of the matter or SocGen’s potential liability for adverse costs); and (c) CC LLP did in fact provide SocGen with the information required by rules 2.02 and 2.03 in any event.

The year after CC LLP accepted instructions in the Goldas Dispute, SocGen and CC Europe entered into the 2009 Framework Agreement. By this time, in point of fact, the work and advice to which SocGen’s present claim relates had been done/given, and the English litigation had fallen into abeyance (though, legally speaking, it is the case that SocGen alleges breach of an ongoing duty to advise, and the retainer did not end until 2017).

The 2009 Framework Agreement, like the 2003 and 2006 Agreements, contained no indication that all SocGen and Clifford Chance entities were, or were required to be made, parties to the Framework Agreement itself. It contained no language suggesting that SocGen or CC Europe had contracted as agent for all their related entities. Its terms are consistent with CC Europe having undertaken that it and other Clifford Chance entities would apply no more than the maximum rates specified in the Framework Agreements, and would perform the other tasks set out in the agreements relating to the conduct of work for the SocGen group, but without those other Clifford Chance entities themselves being party to or bound by the terms of the 2009 Framework Agreement as such.

Like the 2003 and 2006 Framework Agreements, the 2009 agreement set out maximum rates but left the actual fee structures and rates as a matter for negotiation on a case-by-case basis. Indeed, Article 6.1 of the 2009 agreement made it explicit that fees were to be negotiated on a case by case basis, within the agreed maxima.

The 2009 Framework Agreement added a jurisdiction provision to the choice of French law. However, for reasons corresponding to those set out in §§ 92 and 93 above, I do not consider either (a) that CC Europe undertook that individual contracts of retainer would themselves be subject to French law or (b) that the choice of law and jurisdiction agreement applied to individual retainers anywhere in the world involving any Clifford Chance entity. If anything, either of these is even less likely than the choice of French law being incorporated into the retainer when CC LLP was first instructed. Either would mean that an existing retainer, governed by English law and relating to English litigation, would be converted in mid stream to a French law contract subject to exclusive French jurisdiction.

The terms of the jurisdiction clause itself are, in my view, a further pointer against any suggestion that the parties intended it to apply worldwide. The provision for any fee dispute to be resolved by the Bâtonnier is obviously directed at fee disputes relating to members of the Bar of Paris, since (as was common ground) the Bâtonnier would be unable to resolve any dispute relating to members of any other Bar and would decline to do so. Accordingly it is a provision that might logically be incorporated into, or regarded as forming part of, individual retainers of CC Europe itself, but no others. SocGen suggests that the jurisdiction clause could be construed as providing for all other fee disputes to be resolved by the High Court of Paris pursuant to the final sentence of the clause. Even if that were a permissible interpretation, the express reference to the Bâtonnier would still in my view tend to indicate that the parties did not intend the clause as a whole to apply to retainers worldwide. SocGen makes the point that the Framework Agreements contain numerous other indicia that they have a “global remit”. I would accept that they extend globally in the sense indicated in § 87 above (i.e. they contain promises by CC Europe in relation to things to be done by other Clifford Chance entities abroad). However, if anything, it would be all the more surprising if parties, contemplating retainers across the world in that way, would have intended a jurisdiction clause referring fee disputes to the Bâtonnier and other disputes to the High Court of Paris to be a term of all those retainers.

The 2012 and 2015 Framework Agreements, though structured differently, contained broadly similar types of provision to those of the 2009 Framework Agreement.

A new development was the fact that these later agreements stated that CC Europe entered into them “acting in its own name and on behalf of all offices of Clifford Chance LLP”. The email evidence indicates that that wording originated in a proposed amendment put forward by CC Europe on 22 December 2011. SocGen submits that it should accordingly be construed, in the event of any ambiguity, against its maker. However, (a) I was not directed to any principle of French contract interpretation to that effect, and (b) the proposer of the wording was CC Europe: to suggest that it should be construed against CC LLP would simply beg the question of whether CC LLP was party to the agreement or could be deemed itself to have proffered the wording.

This new provision gives rise to two questions:

As to (i), SocGen in its evidence (in particular, the second witness statement of Mr Fawell dated 12 May 2023) summarised the French law principles of agency, but without making any positive assertion that CC Europe had CC LLP’s actual authority to bind it to the 2012 or 2015 Framework Agreement, nor that SocGen had any specific state of mind or belief about any such actual authority. It is thus perhaps not surprising that CC LLP’s evidence on the question of actual authority is relatively concise. It takes the form of a witness statement of Mr Perrin, a partner in CC LLP who was the firm’s Executive Partner and General Counsel from 2003 to 2021. Mr Perrin states:

SocGen criticises this evidence on the basis that it is based on recollection and Mr Perrin does not make clear what enquiries he has made about contemporary documents. In addition, it might be said in SocGen’s favour that (a) the fact that CC Europe stated, in the Framework Agreements, that it was acting on behalf of CC LLP in itself constitutes evidence that CC Europe had CC LLP’s authority, and (b) the fact that CC LLP subsequently abided by the fee maxima set out in the 2012 Framework Agreement is evidence that it was aware of that agreement, and thus of the fact that CC Europe had stated that it was entering into the 2012 Framework Agreement on CC LLP’s behalf, yet did not demur from that statement.

However, those points have to be weighed against Mr Perrin’s evidence, which is the only direct evidence on the point, and in the context of the inherent probabilities. I find it improbable that CC LLP would have given authority to CC Europe to bind it to an agreement of this nature without some careful vetting process having taken place. More plausibly, CC Europe may have taken the view that, by stating that it was acting on behalf of ‘all offices’ of Clifford Chance, it was confirming that (as in previous Framework Agreements) it was itself agreeing how matters would be handled both in its own and in CC LLP’s various offices, as opposed to directly binding CC LLP to the Framework Agreement. At any rate, I am not persuaded that SocGen has the better of the argument that CC Europe had CC LLP’s actual authority to bind CC LLP to the Framework Agreements. I consider that Mr Perrin’s evidence allows a reliable assessment to be made that no such authority was in fact given.

As to apparent mandate, SocGen has not adduced any direct evidence of any behaviour or statements by CC LLP indicating that CC Europe was authorised to bind it to the Framework Agreements. The fact that CC LLP subsequently abided by the agreed rates and reporting mechanisms is not sufficient, since it is equally consistent with CC LLP simply have lived up to undertakings given to SocGen by CC Europe alone from 2008 onwards. Nor has SocGen adduced direct evidence of any actual belief by SocGen in the existence of such authority. The first witness statement of Mr Fawell includes the rather general statement that:

Turning to issue (ii) identified in § 102 above, even if CC LLP were bound, as principal, to the 2012 and/or 2015 Framework Agreements, I do not consider that the choice of law and jurisdiction provisions in those agreements applied to individual retainers of CC LLP anywhere in the world, still less to existing engagements. My reasons are similar to those given in §§ 92 and 93 above in relation to the 2009 Framework Agreement. It would have been surprising for a choice of French law and the jurisdiction of the Batonnier/the High Court of Paris to have been made in relation to retainers between all SocGen and all Clifford Chance entities, all over the world and in relation to all kinds of case, including litigation governed by local rules of procedure and professional duties. Conversely, the choice of law and jurisdiction made sense as governing the overarching relationship between SocGen and CC Europe constituted by the Framework Agreements themselves, and the local relationship between SocGen and CC Europe in Paris. The Framework Agreements did not unambiguously state that that choice of law and jurisdiction would apply to individual retainers around the world, and the available evidence does not support the view that the parties intended that.

Accordingly, I do not consider that SocGen has the better of the argument that the jurisdiction clause in the 2012 and 2015 Framework Agreements binds CC LLP. I consider CC LLP to have the better of the argument.

CC Europe is bound by the jurisdiction clauses in the successive Framework Agreements. Further, having regard to the presence of the Batonnier provision for resolution of fee disputes, SocGen would have the better of the argument that that provision applied to any individual retainers of CC Europe for work in Paris, alternatively that CC Europe agreed that any such individual retainers would be on terms including such a jurisdiction clause.

However, there is in reality no substantive claim against CC Europe, and in that sense no dispute on which the jurisdiction clause could bite. Although SocGen’s formal letter of demand is addressed to both CC LLP and CC Europe, SocGen has put forward no remotely arguable basis on which CC Europe, as opposed to CC LLP, could be said to have been retained in relation to the Goldas Dispute or liable for the acts and omissions it alleges (see, further, § 83 above). It is hard to see why SocGen’s letter of claim asserted any claim against CC Europe at all (save perhaps with a view to seeking an advantage in terms of choice of law and/or jurisdiction).

On that basis, it might be suggested, there is no basis on which CC Europe could need negative declaratory relief of the kind it seeks by its present claim in England. I am not persuaded that that would follow: there may be room for such relief to be sought even in circumstances where the counterparty (here, SocGen) has not put forward any real substantive claim against a claimant. In any event, however, I would accept Clifford Chance’s submission that to prevent CC Europe from seeking relief in England would lead to fragmentation of the proceedings; and that – particularly in circumstances where no genuine claim has been asserted against CC Europe – there would be exceptional reasons to refuse a stay despite the existence of the jurisdiction agreement. In terms of the statement from Briggs quoted in § 78 above, this is not a case where it could be suggested that the involvement of CC LLP is a contrivance to avoid the application of the jurisdiction clause. On the contrary, CC LLP is the real defendant to SocGen’s claims, whereas CC Europe has no real involvement in them.

FORUM NON CONVENIENS

SocGen argues in the alternative that the court should stay these proceedings on the basis that the French court is clearly and distinctly the more appropriate forum.

Following the end of the Brexit transition period, applications to challenge jurisdiction are now decided by common law principles of forum non conveniens rather than the Brussels Regulation Recast (Regulation 1215/2012). The legal framework for determining an application for a stay of proceedings on the basis of forum non conveniens is as set out in Spiliada Maritime Corp v Cansulex Ltd [1987] A.C. 460.

The test has two limbs:

As to the evidential burden:

As to the governing law as a factor:

In relation to the first limb of the test, SocGen submits as follows:

I do not accept those submissions. I have concluded that CC LLP has the better of the argument that it was not bound by the Framework Agreements, and (in any event) that the choices of law and jurisdiction which they contain do not form part of the contract of retainer in relation to the Goldas Dispute. Even if the Framework Agreements have any application, they have no real bearing on the critical issues between the parties. The dispute concerns whether or not an English firm of solicitors were negligent in their conduct of English law litigation in the English High Court. The retainer was governed by English law. To the extent that the Framework Agreements have any relevance at all, they can be considered in translation.

Further, the events that form the subject matter of that dispute all took place here. The large number of documents involved, primarily those on CC LLP’s file, are in England and written in English. They would need to be translated were the proceedings to take place in France. The eight Clifford Chance personnel working on the Goldas Dispute were all based in London. Except for Mr Brock, who now lives in Hong Kong, they are all understood still to be in this jurisdiction. CC LLP’s two main contacts at SocGen, Mr Pinnell and Mr Williams, were and are also based in England. CC LLP is headquartered in London and SocGen has a substantial presence in London.

Consequently, it has not been shown that the courts of France are clearly and distinctly the more appropriate forum. To the contrary, this court is that forum.

CONCLUSION

For these reasons, I shall dismiss SocGen’s jurisdiction challenge.

I am most grateful to all counsel for their helpful written and oral submissions.