EVDC Invest S.A. v B & D Trawling Ltd

• Jurisdiction: Jamaica
• Judge: Anderson, K. J
• Judgment Date: 14 October 2022
• Year: 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU2021CV02582

Between

EVDC Invest S.A.

1 ^st Claimant

and

Fish & Co S.A.S

2 ^nd Claimant

and

B & D Trawling Limited

1 ^st Defendant

and

Muxton Limited

2 ^nd Defendant

[2022] JMSC Civ. 184

CLAIM NO. SU2021CV02582

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Application to challenge the jurisdiction of the court — Acknowledgement of service filed — Whether there exists a binding agreement between the parties albeit unsigned — Whether Jamaica is forum conveniens — Whether the court should exercise its discretion to allow the hearing of the matter to continue in Jamaica

IN CHAMBERS

Sheldon Robinson, instructed by Dentons Delany, for the claimants

Vincent Chen and Vanessa Reid Pringle, instructed by Chen Green & Co. for the defendants

Anderson, K. J

BACKGROUND

1 The claimants filed the instant claim against the defendants on May 27, 2021, seeking against the defendants the following orders:

• a. ‘An order to recover from the defendants the principal sum of One Million Five Hundred and Forty-Five Thousand Nine Hundred and Seventy Dollars and one cent in the currency of the United States of America (USD$1,545,970.01) being monies due and owing by the defendants to the claimants;

• b. Interest of 8% per annum;

• c. General damages for breach of contract;

• d. Interest on general damages; and

• e. Costs.’

2 The claimants averred that it loaned the defendants the said sums and entered into a guarantor mortgage agreement. It is averred that the defendants breached that agreement in that it failed to provide the claimants with goods (lobsters and conchs) representing the entire sums loaned. The claimants also aver that the defendants agreed to pay the outstanding sums as well as interest of 8% on said outstanding sum but have failed to do so, after several requests from the claimants.

The application

3 The defendants filed this notice of application for court orders August 5, 2021, seeking several orders, namely:

a. A declaration that the local courts are not the appropriate place “forum conveniens” for the trial of this action;

b. A declaration that the court should not exercise its jurisdiction in this claim;

c. The claimants' particulars of claim be struck out;

d. There be a stay of proceedings pending litigation in another forum, namely, the Courts of the City of Paris as set out in Article 12 (Governing Rules of Contract) of the “Memorandum of Trade Agreement;

e. Costs to the defendants.

4 The grounds on which the defendants have sought those order are as follows:

• i. The claim is not in respect of a breach of contract committed in this jurisdiction.

• ii. The claim relates to an alleged breach of an agreement which contains an express term in Article 12.1. that is governed by French Law.

• iii. Article 12.2 established the “Memorandum of Trade Agreement” as the Entire Agreement and Article 12.3 speaks to any modification of the contract becoming an integral part of the contract.

• iv. The Memorandum of Trade Agreement is first in French and then translated to English.

• v. The supply and processing services to which the agreement related are completed upon shipment to the requested destination outside of the jurisdiction. The claimants being the exclusive distributors of the supplier of the French Caribbean market and the European zone.

• vi. Whereas the defendants are companies registered in Jamaica and are renowned in the fishing and processing of frozen seafood including conch and lobster.

• vii. The claimants have their registered offices in Luxembourg and Martinique which clearly the latter being an overseas territory of France and the former is a francophone country.

• viii.Major portions of the pre-contractual negotiations, via email are in French.

• ix. Even if the court were to find that this court is the forum conveniens, the parties have made a choice of law and by their written contract, have agreed to submit any dispute to the French law and Parisian Courts.

5 The defendants led evidence on affidavit by Roderick Francis, who led evidence that:

• a. The 1 ^st defendant is a Jamaican company renowned in the fishing and processing of frozen seafood, including conch and lobster. The 2 ^nd defendant is a holding company on behalf of the 1 ^st defendant.

• b. The claimants have no asset in Jamaica nor do they carry on business here.

• c. There were negotiations between Alexandra Elize a principal of the 1 ^st claimant to enter into a long term relationship with the 1 ^st defendant for a period of 10 years. That agreement was reduced into writing.

• d. The purpose of the guarantor's mortgage agreement was to acknowledge the debt which was to be created from season to season as collateral between the 1 ^st defendant and the 2 ^nd claimant. The funding advanced by the claimants was to enable the 1 ^st defendant to purchase goods to be shipped.

• e. Article 12 of the draft proposed trade agreement indicates that the agreement is governed by French law and it must be applied in interpreted in accordance to that law. It also indicated that in the event of any dispute in connecting with the agreement, the parties attribute exclusive jurisdiction to the courts of the city of Paris.

• f. On the basis of the agreement, the defendant completed shipment of conch which the claimants received and distributed.

• g. All parties performed their obligations in accordance with the draft agreement.

• h. The claimants were aware that the 2 ^nd defendant is a property holding company for the assets of the 1 ^st defendant which held the mortgaged property.

• i. The guarantor's mortgage agreement was an integral part of the protocol agreement and are governed by the Protocol and Article 12, i.e. to submit any dispute to the jurisdiction of the court in the city of Paris.

• j. The premature termination of the intended long term relationship has caused the 1 ^st defendant to suffer substantial losses and damages.

6 The claimants led evidence through Alexander Elize. The summary of that evidence is as follows:

• a. The protocol agreement was a document intended to set out the terms and conditions on which the parties intended to carry on their commercial relationship. That protocol was still being deliberated on, then it was to be subsequently signed by both parties.

• b. Despite the lengthy discussions, and the commencement of the business relationship between the claimants and defendants, a final agreement was not reached.

• c. The parties did not agree to any binding agreement or otherwise to submit any or all dispute in connection with their commercial arrangement to the terms of the protocol agreement.

• d. The claimants unlike the defendants have not committed any breach of any agreement which governed their commercial arrangement.

• e. This jurisdiction is forum conveniens because:

  • i. The defendants are registered in this jurisdiction.

  • ii. The 1 ^st defendant's mind, manpower, resources and plant facility are all in this jurisdiction.

  • iii. The claimants' claims for the relevant sum were paid over to the 1 ^st defendant into a bank account located in Jamaica.

  • iv. The guarantor mortgage agreement which the claimants aver was breached, was duly executed in Jamaica.

  • v. The evidence on the issues as well as witnesses which may be required to testify are available in this jurisdiction.

  • vi. It would be more convenient and less expensive to try the claim in Jamaica for both parties.

  • vii. The defendants hold their real and personal property in Jamaica.

7 Both parties have filed written submissions to this court which I will refer to further in these reasons.

ISSUES

8 The following issues now stand to be determined by this court in light of the facts above:

• i. Is the agreement which was drafted but unsigned by the parties binding?

• ii. What is the forum conveniens for this matter?

LAW AND ANALYSIS

Challenging the court's jurisdiction

9 Rule 9.6 of the Civil Procedure Rule (CPR) sets out the procedure to dispute the court's jurisdiction. That rule reads as follows:

‘(1) A defendant who-

(a) disputes the court's jurisdiction to try the claim; or

(b) argues that the court should not exercise its jurisdiction, may apply to the court for a declaration to that effect.

(2) A defendant who wishes to make an application under paragraph (1) must first file an acknowledgment of service.

(3) An application under this rule must be made within the period for filing a defence.

(4) An application under this rule must be supported by evidence on affidavit.

(5) A defendant who –

(a) files an acknowledgment of service; and

(b)does not make an application under this rule within the period for filing a defence, is treated as having accepted that the court has jurisdiction to try the claim.

(6) Any order under this rule may also –

(a) strike out the particulars of claim;

(b) set aside service of the claim form;

(c) discharge any order made before the claim was commenced or the claim form served; and

(d) stay the proceedings.

(7) Where on application under this rule the court does not make a declaration, it- (a) must make an order as to the period for filing a defence; and

(b) may –

(i) treat the hearing of the application as a case management conference; or

(ii) fix a date for a case management conference.’

10 The 1 ^st and 2 ^nd defendants were served on June 24 and 29, 2021, respectively and this application was filed on August 5, 2021. The said application was filed within the period stipulated under rules 9.6(3) and 10.3(1) of the CPR. That is, it was filed within the 42 days' period, after having been served on the defendants and the defendants filed an acknowledgement of service on July 8, 2021. In that acknowledgement of service, they stated that same was filed for the sole purpose of disputing this court's jurisdiction to try this claim.

Approach

11 The court must now, before determining whether Jamaica's courts would be the forum...