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Court

England And Wales High Court (Chancery Division)

England and Wales

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Case Information

Filed 2022-01-14
Docket 86 entries
Disposition NA

Parties

Plaintiff Cornwall Renewable Developments Limited
Defendant Wright, Johnston & Mackenzie LLP
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Judge

Hon. Sitting As A Deputy Judge Of The High Court

england and wales

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Lawyers

Docket Entries

  1. This is an application by the defendant by notice dated 23 January 2020 challenging the court's jurisdiction to try the claimant's claim for damages for professional negligence. In its claim form the claimant contended that it is entitled to serve the defendant pursuant to CPR 6.32.
  2. The issues for determination are:
  3. The application is supported by the witness statement of Martin Stephen (Mr Stephen) dated 23 January 2020, a solicitor and member of the defendant firm.
  4. The claimant opposes the application and relies on the witness statement of Timothy Dart (Mr Dart) dated 15 June 2020, the sole director of the Claimant.
  5. For the purposes of this application certain facts are agreed.
  6. The claimant is a limited company incorporated in England on 31 October 2011. Mr Dart is the sole director of the claimant. He describes it as, for "the business of the identification, development and operation of potentially suitable sites situated within Cornwallâ?¦ [f]or the production and sale of electricity from renewable resources on a commercial basis."[1]
  7. The defendant is a limited liability partnership carrying on a solicitor's practice at 5 offices. Its registered office is at 302 Vincent Street, Glasgow. It has no place of business outside of Scotland. Mr Stephen states that the defendant employs 72 solicitors of which 36 are member partners. There are 6 dual qualified solicitors, by that it is meant that the solicitors can practise law in Scotland and in England and Wales.
  8. Brian Henderson (Mr Henderson), a director of NMS Financial Renewables Ltd[2] (NMS), acted as an intermediary between the claimant and the defendant. He introduced the claimant to the defendant through his connection with Kenneth Long, a member of the defendant. Mr Stephen says that in turn Mr Long introduced Donna Kellyâ??Gilmour (Ms Kelly-Gilmour) to Mr Henderson. Ms Kelly-Gilmour was a partner at the defendant from 1 April 2002 until she resigned on 7 March 2014. She practised in property law and was qualified to practise law both in Scotland and in England and Wales.
  9. On or around 14 June 2012 the claimant entered into heads of terms with the owners of two sites on which it proposed to obtain planning permission for the construction and operation of wind farms to generate and sell electricity (the development). The sites were, Tremaine Farm in Pelynt, Looe PL13 2LT (Tremaine) owned by John and Rosemary Philp and Tresawson Farm in Lanreath, Looe PL13 2 NT (Tresawson) owned by Tom Tolputt (the sites).
  10. On 18 March 2013 a planning application was made to Cornwall Council, the local planning authority, relating to developing wind farms on Tremaine.
  11. On 5 June 2013 Mr Henderson contacted the defendant on behalf of the claimant for fee estimates in connection with work in respect of Tremaine and two other sites.
  12. On 6 June 2013 Ms Kelly-Gilmour emailed Mr Henderson setting out the scope of the work and providing fee estimates. Draft heads of terms for the sites, prepared by the claimant, were provided to the defendant via Mr Henderson on 18 July 2013. Mr Stephen says that the defendant's standard terms of business provide that the retainer is governed by Scottish law and is subject to the exclusive jurisdiction of the Scottish courts. Mr Stephen accepts for the purposes of the interim application that there is no evidence that a retainer letter was sent by the defendant to the claimant and similarly no evidence that the claimant was aware of the exclusive jurisdiction term.
  13. On 19 July 2013 Ms Kelly-Gilmour provided initial advice on the documentation required and raised queries. Mr Dart provided responses to those queries within the email, including setting out an extract on 'financial involvement'[3]. That was forwarded to Ms Kelly-Gilmour on 25 July 2013.
  14. On 26 July 2013 Ms Kelly-Gilmour forwarded separately to Mr Dart and Mr Henderson a draft agreement between the claimant and Stuart McGowan in respect of Tresawson. A fee invoice was issued on 26 July 2013, addressed to Phenix Renewable Energy. On 30 July 2013 Mr Dart emailed Ms Kelly-Gilmour raising a query about the confidentiality clause and saying that the reference to the Scottish Institution had been corrected to the Office for National statistics. Ms Kelly-Gilmour replied on the same day. On 31 July 2013 the defendant re-issued the fee invoice for the work in respect of Trewason addressed to the claimant at Mr Dart's address in Cornwall.
  15. On 2 August 2013 the claimant executed the agreement which was in four parts and made between the claimant and Mr and Mrs McGowan[4]. On 8 August 2013 the agreements were submitted to Cornwall Council in support of the planning application.
  16. On 23 October 2013 Cornwall Council refused planning permission.
  17. On 29 October 2103 Mr Henderson emailed Ms Kelly-Gilmour saying, "the council have rejected the documentation saying it did not fit their criteria." He said that Mr Dart was keen to understand this and whether it could be challenged. He sent a further email setting out a point made by James Patrick of Cornwall Council about the financial arrangements not falling within the scope of 'financial involvement'.
  18. On 17 April 2014 grounds of appeal were filed against Cornwall Council's refusal of planning permission.
  19. By notice dated 16 September 2014 the appeal was formally withdrawn.
  20. On 22 July 2019 the claimant issued the claim form. The particulars of claim are dated 9 November 2019. The claimant served proceedings and the postmark on the envelope is 21 November 2019; the proceedings were received at the defendant's offices on 22 November 2021.
  21. CPR 6.32 provides as follows:
  22. This rule provides for two discrete regimes in respect of the service of proceedings in Scotland and Northern Ireland: (1) where the court has power to determine the claim under the 1982 Act, no proceedings are pending in courts in any other part of the United Kingdom and at least one of the three conditions in CPR 6.32(1) (b) (i) to (iii) apply; or (2) where the court has power to determine the claim under any enactment other than the 1982 Act, even though the defendant is not within the jurisdiction or the facts giving rise to the claim did not occur within the jurisdiction.
  23. This application concerns CPR 6.32(1).
  24. Under section 16 of the 1982 Act,
  25. Although these are rules of internal United Kingdom law, Mr Phipps, counsel for the defendant, reiterated that the court is to have regard to European jurisprudence: section 16(3)(a) of the 1982 Act.
  26. Paragraph 1 of Schedule 4 of the 1982 Act states the general rule that "persons domiciled in a part of the United Kingdom shall be sued in the courts of that part". Paragraph 2 provides that those persons may be sued in the courts of another part of the jurisdiction if the claim falls within the exceptions set out in paragraphs 3 to 13.
  27. The claimant relies on rules 3(a) and 3(c),
  28. In Goldman Sachs [2018] 1 WLR 3683 Lord Sumption clarified the applicable test, that he had reformulated in Brownlie v Four Seasons [2018] 1 WLR 192 as a three-limb test. The Court of Appeal considered this test in Kaefer Aislamientos SA de v AMS Drilling Mexico SA de SV [2019] EWCA Civ 10, paragraphs 70-80. Green LJ reviewed each limb and came to the view that, so long as form is not allowed to prevail over substance, in respect of the good arguable case formulation or that the claimant has the better argument, "there remains currency in this rubric"[5].
  29. If the claimant establishes that the rules are engaged, then the courts in England have jurisdiction. However, it is still open to the defendant to argue forum non conveniens: section 49 of the 1982 Act.
  30. The claim is pleaded on the basis that the claimant retained the defendant to carry out certain work in respect of the sites: the alleged factual matrix in respect of the retainer is set out in paragraphs 4 to 13 of the particulars of claim, with the key scope being set out in email answers provided by Mr Dart and forwarded to Ms Kelly-Gilmour on 25 July 2013, paragraph 6.
  31. Mr Phipps observed in his submissions that the duties in paragraph 14 were put the other way round to the usual way of pleading in a professional negligence claim, tort being referred to before contract, but I do not consider anything turns on that. In sub-paragraphs 14.1 to 14.5 the duties are said to comprise: to carry out the claimant's instructions, to act with reasonable care and skill, to act in the claimant's best interests, to ensure that the defendant identified and researched the relevant law and planning guidance, and to provide such advice upon request and/or as reasonably incidental to carrying out the instructions.
  32. The alleged breaches are pleaded in paragraphs 18, 19 and 24. Mr Phipps distils these into five allegations, which I consider to be a fair summary: inadequate drafting (18.1, 18.2); failure to conduct proper research (19.1); failure to advise that the agreements were inadequate (19.2) and that a bespoke agreement was necessary (19.3); failure to recommend alternative advice if the defendant was not competent to carry out the instructions (19.4); and after planning permission was refused a failure to advise on how the situation could be remedied (24).
  33. Causation is set out in paragraphs 28 and 29, under the heading 'loss of opportunity to develop wind farms on the sites'.
  34. The claimant pleads a contractual claim against the defendant and rule 3(a) will apply if England is "the place of performance of the obligation in question". Both counsel agree that the first task for the court is to identify "the obligation in question".
  35. In Kleinwort Benson Ltd v Glasgow CC [1999] 1 AC 153 the plaintiff, an English bank, brought a claim for restitution of sums paid to the defendant, a Scottish local authority. This was in respect of seven interest rate swap transactions, which had been subsequently held by the House of Lords to be ultra vires and void. The House of Lords by a majority held that the bank was not entitled to bring the claim in England. Lord Goff at page 164F citing from a decision of the Court of Justice[6] explained the task as identifying "the contractual right on which the plaintiff's action is based". Lord Clyde at 181C explained, "That is a reference not to the contract but to the obligation on which the claim is based."
  36. The House of Lords also considered Shenavai v Kreischer (case 266/85) [1987] ECR 239[7] where it was stated by the ECJ that in a dispute where a number of obligations arise under the same contract it is the principal obligation which will determine the question of jurisdiction.
  37. How is the principal obligation determined? Mr Burdin submits that the court must analyse the pleaded case, referring to the analysis of Master Clark in Holgate v Addleshaw Goddard (Scotland) LLP [2019] EWHC 1793 (Ch).
  38. Mr Phipps took issue with this. He emphasised that this is a professional negligence claim against solicitors for services and the principal contractual obligation is to exercise reasonable care and skill. He submits that his position is supported when one analyses the alleged duties of the solicitor, pleaded in paragraph 14, which are to exercise reasonable care and skill in giving advice. As Mr Phipps readily accepted there was no contractually specified place of performance of the contract; or not one that he could argue for the purposes of this application. It strikes me that this is a very generic approach and one which taken to its logical conclusion would mean that a professional negligence claim for negligently drafted documents drawn up by a solicitor practising from Scotland for a client based in England and Wales would always have to be litigated in Scotland. It would also follow that advice given in writing or orally would also lead to the same conclusion.
  39. To make good his submission Mr Phipps referred me to Deutsche Bank AG London Branch v Petromena [2013] EWHC 3065 (Comm) and [2015] 1 WLR 4225 (CA). In that case the defendant submitted to the jurisdiction by its second acknowledgment of service, but the court considered, strictly obiter, whether England would have had jurisdiction anyway. The defendant was a Norwegian company which issued bonds to finance the construction of oil rigs. The terms of the bond were contained in a loan agreement between the defendant and the bond holder which had an exclusive jurisdiction clause nominating Norway. The defendant had some financial difficulties and was approached by the claimant, an English bank, who was one of the bond holders stating that it was willing to provide further finance. The defendant alleged that it was provided with investment advice in Norway. The claimant then sold its bonds to one of the defendant's competitors. At the claimant's request the loan trustee declared the loan in default and the defendant went into bankruptcy. The defendant issued proceedings in Norway. The claimant sought a declaration in the High Court that it was not liable in respect of the Norwegian proceedings.
  40. At paragraph 21 Gloster J analysed the claim as tortious, not contractual. However, had it been contractual her view was that the court had to identify the place of the main provision of services. London was where the individuals with the claimant, said to have been responsible for providing advice to the defendant, were based and had carried out the alleged work. At paragraph 58 she said,
  41. On appeal Longmore LJ, paragraph 96, said that
  42. The claim though was a tortious one, the equivalent of a Hedley Byrne v Heller duty. It was said that the most relevant meeting took place between the parties in London and that the events which caused damage to the defendant occurred in England. As Longmore LJ commented in paragraph 95, this was "a strong pointer to the place where the services were to be provided."
  43. Whilst these are very powerful judgments, I must not lose sight of the fact that they are obiter and more significantly that they apply the Lugano Convention, and article 5(1)(b) which was critical to the analysis. This involves a separation of goods and services and therefore interpretation of language which is entirely absent from rule 3(a).
  44. No matter the eloquence of the reasoning by Gloster J her case involved a Hedley Byrne v Heller duty with the critical point being a meeting held in London. It does not seem to me that I can or should adopt the obiter reasoning in contract, particularly when the analysis rests on the decision of the ECJ in Wood Floor Solutions Andreas Domberger GmbH v Silva Trade SA [2010] ECR I-2121 where the court considered that the task for the purpose of article 5(1)(b) was to identify "the place of the main provision of services" by the service-provider[8].
  45. This distinction was made by Master Fontaine in in IHP Ltd v Fleming [2009] 7 WLUK 279 a case involving the supply of chickens by the claimant in England to the defendant, who was domiciled and resident in Scotland. The question, absent an agreement as to the place of performance, was whether to apply the English rule that the debtor must seek out his creditor (the buyer's obligation was to pay for the goods in England) or to apply European jurisprudence under article 5(1)(b) of the Judgments Regulations[9], then in force. At paragraph 24 she commented that rule 3 of Schedule 4 does not include any of the provisions of article 5(1)(b) of the Judgment regulations and "this omission must have been deliberate",
  46. Mr Phipps also referred to Bateman v Birchall Blackburn LLP [2014] NIQB 112 where a plaintiff in Northern Ireland instructed the defendant solicitors based in Manchester to carry out property transactions in the Philippines. The judge was satisfied that as this was a consumer contract the claim could be prosecuted in Northern Ireland or in England. He did note that in relation to the contract, the place of performance will determine jurisdiction. The principal obligation was to advise on the proposed transaction and to provide good title to the property. The work was undertaken in England and delivered in Northern Ireland. Applying forum conveniens the judge refused to stay the claim as Northern Ireland was the preferred venue. However, I note that the focus of the case, and the ratio, was whether the contract was a consumer contract and fell within rule 7 of Schedule 4 to the 1982 Act which entitled the plaintiff to sue in Northern Ireland. It was not "the place of performance" and that is why it is dealt with, in paragraph 22 in the judgment, in short order. It is also a case concerning a report on title of land in the Philippines which gives rise to different obligations to those that arise in the claim before this court.
  47. Mr Phipps therefore considers that the fact that the defendant's services related to English law contracts concerning sites in England was irrelevant because Ms Kelly-Gilmour was in Scotland when she carried out the work, not by chance but because all of the defendant's offices were in Scotland. In brutal simplicity that is his case: the court must be focused on where the defendant performed the service that it contracted to provide.
  48. If I go back to rule 3(a) the claimant must show a good arguable case that the place of performance of the contract was England not Scotland. I agree with Mr Burdin that to discern the obligation, which is at the heart of this dispute, the court looks at the pleaded case.
  49. What was the defendant's principal obligation? Yes, it was to provide a service to the claimant but for what purpose? The claimant instructed the defendant to provide it with the agreements necessary to achieve planning permission for the development. To that end they were specific to the location of the sites and to the Cornwall Council's planning guidance on renewable energy. Land in the vicinity of the sites would be affected by noise from the development but higher limits of noise would be acceptable if the residents of such properties were financially involved in the development. When Mr Burdin submits that the defendant's principal obligation was to comply with its instructions and provide the claimant with agreements that were fit for the purpose of securing planning permission there is force in this. If I use an example to illustrate his approach, if the solicitor is instructed to effect the grant of an option the scope of the retainer is to draw up the option and effect its registration. Incidental to this is that the solicitor should advise whether the deed achieves this and take such necessary step to register the option. To analyse the obligations on a solicitor, as Mr Phipps has, is to subordinate all other obligations to the obligation to exercise reasonable skill and care. As Oliver J demonstrated in Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] CH 384 at 434E-H a "contract gives rise to a complex of rights and duties of which the duty to exercise reasonable care and skill is but one."
  50. On the claimant's case the objective was not achieved; the agreements failed to satisfy Cornwall Council's "financial involvement" requirement.
  51. For the purposes of determining jurisdiction the defendant accepts that there was no written retainer and no contractually specified place of performance. In Chitty on Contracts, 33rd Ed, paragraph 21-005,
  52. In Viskase Ltd v Paul Kiefel GmbH [1999] 1 WLR 1305 the plaintiffs were English manufacturers of plastic packaging who entered into eight contracts with the defendant, a German company, to supply and deliver machines for the commercial production of its goods for the United Kingdom market. The Court of Appeal considered "the place of performance of the obligation in question", derived from article 5(1) of the Brussels Convention. Whilst it is right that this is a sale of goods case where a specific product is created for a fee and therefore dissimilar to an on-going retainer between client and solicitor rule 3(a) does not make any distinction between goods and services. Chadwick LJ, who Morritt LJ agreed with, concluded that the obligation to supply a machine which was reasonably fit for the known purpose was an obligation which was to be performed once and for all at the time when the particular machine was supplied, at the place of delivery under the contract. In that case and save for one machine it was in Germany. Morritt LJ recast the pleaded obligation in respect of each machine as "each machine to be sold and delivered in accordance with the contractual provisions previously referred to. This necessary implication at once clarifies the nature of the obligation sued on and denotes the place of its performance."[10] Even though the defendant's work to produce all machines was undertaken in its factory in Germany one of the machines was to be delivered from the National Exhibition Centre in Birmingham and in respect of that contract the obligation on which the second plaintiff based its claim was to be performed at the place of delivery in England.
  53. Mr Burdin also relied on Barry v Bradshaw [2000] ILPr 706 (CA) a case in which Irish domiciled claimants sued an Irish domiciled tax adviser for his failure to secure capital gains tax relief after the sale of their business in England. The defendant's principal obligation was to "represent, conduct and settle the [plaintiffs'] tax affairs" which required communicating his advice to the Inland Revenue in England. At paragraph 14 Ward LJ said,
  54. In both of these cases the court has grappled with "the place of performance of the obligation in question" as found in article 5(1) of the Brussels Convention, which is the equivalent of rule 3(a) in Schedule 4 of the 1982 Act. They are not squarely on foot with the case before the court, but some analogies can be drawn to the approach to be taken. Had the defendant been specifically instructed to liaise with Cornwall Council and this was the principal obligation of the contract then the case would have been that much simpler, on the defendant's analysis.
  55. I was also referred to the case of Holgate v Addleshaw Goddard (Scotland) LLP [2019] EWHC 1793 (Ch) which has similarities to the case before me but is a decision of a Master, albeit one with very thorough analysis by Master Clark. The claimant was an assignee of an English company. The company went into administration and the administrators instructed the defendant, a Scottish firm of solicitors, to advise in relation to the company's claim against Barclays Bank for interest rate swap mis-selling. The work was carried out by Mr Copper, a solicitor in the Edinburgh office, and the advice was received by an agent of the company in Scotland. There are three key parts of the analysis which I consider fit squarely with the task that the court has to consider when a party relies on rule 3(a) and must show a good arguable case.
  56. Turning to the discrete facts of the case before me.
  57. Unquestionably the defendant is solely based in Scotland and the work was carried out by Ms Kelly-Gilmour, a former member in the defendant, based in Glasgow. However, Ms Kelly-Gilmour was a dual qualified solicitor who was providing a service to an English client, as a solicitor qualified to act in England, concerning a development and sites in England.
  58. Analysing the pleaded claim, the defendant's principal obligation was to provide advice and agreements to the claimant for negotiation and execution by parties in England, with the intention that they would satisfy Cornwall Council's planning rules so that planning permission would be granted, and the development could proceed. The planning rules and specifically the "financial involvement" provisions were core to the development being granted planning permission. It therefore follows that in order for the defendant to carry out the Instructions, as pleaded and defined in paragraph 13 of the particulars of claim and the forgoing paragraphs, the defendant needed to understand and apply English planning requirements, specifically Cornwall Council's guidance on land where a wind turbine or farm is proposed.
  59. As Mr Burdin summarised the position, "The Agreements drafted by [the defendant] were to be governed by English law, the parties were English and based in England, and the purpose was to govern the relationship between the sites and neighbouring properties in Cornwall, to satisfy Cornwall's "Financial Involvement" requirement."[12]
  60. All that is required at this stage is for the claimant to show a good arguable case, whether it succeeds on its claim or not is an entirely different matter. In terms of the scope of the retainer there is contemporaneous evidence before me that the defendant was aware that the instructions came from an English company which developed windfarms, it related to a windfarm development in Cornwall, planning permission was needed in order to develop the sites, the agreements were needed to satisfy the planning requirements and would be made with landowners in Cornwall. The claimant's draft heads of terms were provided to the defendant, Ms Kelly-Gilmour sought clarification, Mr Dart provided this in an email which was forwarded to Ms Kelly-Gilmour who agreed to carry out the necessary work.
  61. Mr Phipps submits that Ms Kelly-Gilmour communicated with Mr Henderson, who was based in Scotland, as much as she did with Mr Dart. From the limited correspondence before me (it may be there is no more) Mr Henderson was clearly not acting as the client and indeed Mr Dart did on occasion directly deal with Ms Kelly-Gilmour. It was Mr Dart who answered the queries posed by Ms Kelly-Gilmour in her email dated 19 July 2013, his replies were simply forwarded by Mr Henderson to Ms Kelly-Gilmour. The defendant was retained by the claimant and the invoice was sent to the claimant at Mr Dart's address in Cornwall. Mr Phipps also submits that the draft agreements were emailed to Mr Henderson in Scotland, but they were also emailed to Mr Dart in England, directly by the defendant. Nothing turns on these submissions.
  62. When I posed during submissions that the claimant had elected to instruct a solicitor in Scotland Mr Burdin referred me to Mr Dart's evidence, specifically paragraph 11 of his witness statement which is not, at this stage, challenged by the defendant. Mr Dart said that he did not attach any significance to where Ms Kelly-Gilmour happened to be located when she drafted the agreements. "It would have made no difference to me had she done the drafting in Scotland or in England â?¦. everything of commercial or legal relevance was connected with England and the Defendant's instructions were to provide the Agreement to the Claimant in England."[13]
  63. The obligation at the heart of this claim was for Ms Kelly-Gilmour to provide advice and draft agreements as a solicitor qualified to act in England and Wales regulated by the Law Society in England and Wales, to an English client, in respect of parties in England, relating to land in England satisfying planning requirements of an English Council so that the development in England could proceed. The agreements and advice were provided to the claimant and its director, in England. I am satisfied that the place of performance of the contract was England. I also further observe that the centre of gravity in this case was England.
  64. It therefore follows that as the claimant has succeeded in establishing a good arguable case under rule 3(a), I do not need to consider rule 3(c). However, the defendant has invited me to consider rule 3(c) and set out my reasoning, even though that can only be obiter.
  65. Mr Burdin argues that the claimant is entitled to bring a claim in contract and in tort, they are both separate causes of action, and the claimant can rely on rule 3(c) independently as a gateway to jurisdiction.
  66. In Source Ltd v T U V Rheinland AG Holding [1998] QB 54 (CA) the plaintiff, an English company, contracted to buy goods directly from suppliers in Taiwan for resale in England. The plaintiff engaged German companies, the defendants, to inspect the goods for quality control and report to the plaintiff. Payment for the goods was by a letter of credit, upon the suppliers presenting a certificate of quality issued by the plaintiff. The plaintiff received complaints from customers about the quality of the goods. It sued the defendants in England for damages. Two separate causes of action were alleged, breach of contract and/or breach of duty of care in failing to exercise reasonable skill and care in the preparation and supply of quality control inspection reports. The writ was set aside on the basis that the court lacked jurisdiction.
  67. Staughton LJ at 62F posed the question,
  68. Staughton LJ went on at 63E to explain that the European or convention meaning of matters relating to "tort, delict or quasi-delict" is, "all actions which seek to establish the liability of a defendant, and which are not related to a contract within the meaning of article 5(1)." His conclusion was that as the claim in contract could not be brought in England it followed that the tort claim, which fell within article 5 ("matters relating to a contract"), also could not be brought in England.
  69. Mr Burdin sought to argue that "matters relating to a contract" ought to be interpreted restrictively, relying on the dicta of the House of Lords in Kleinwort Benson Ltd v Glasgow CC [1999] 1 AC 153, especially Lord Goff at 166E-167B and Lord Hutton at 195E-F. A case which post-dates Source v TUV Holding AG and is, of course, a higher court. Although Lord Goff observed at 163F that "it will â?¦. be a rare case in which a provision of Schedule 4 bears a materially different meaning from the corresponding provision in Title II" of the Convention. The contract had been void ab initio and a claim for restitution of moneys paid under that purported contract was held, by a bare majority of the House of Lords, to not fall within articles 5(1) or 5(3) and therefore the defendant was to be sued in the court of their domicile under article 2.
  70. In addition, Mr Burdin referred to Brogsitter v Fabrication de Montres Normandes EURL [2014] QB 753 where the European Court of Justice considered whether a claim for breach of an exclusivity agreement should be characterised as a "claim relating to a contract" for the purposes of article 5(1) of the Brussels I Regulation. In German law the tort claim could only be made good if the contract was pleaded and proved. It was held that the court should consider in respect of each claim whether it is "indispensable"[14] to take the contract into account in determining the claim. This is not authority for the proposition that Mr Burdin seeks to advance, which effectively, is that rule 3(a) and (c) are not mutually exclusive. Indeed, as Gross LJ said in Bosworth v Arcadia Petroleum Ltd [2016] EWCA Civ 818 at paragraph 28,
  71. In terms of how the court should approach the question of whether a claim falls within "matters relating to a contract", again in Bosworth v Arcadia, albeit in the context of individual contracts of employment, Gross LJ said at paragraph 66,
  72. In Briggs's Civil Jurisdiction and Judgments, 6th Ed, 2015, there is a helpful summary of the law at paragraph 2.171,
  73. An illustration of the symbiotic nature of professional negligence claims brought in contract and tort can be seen in Wellesley Partners LLP v Withers LLP [2015] EWCA Civ 1146. It was held that where contractual and tortious duties to take care in the drafting of a partnership agreement existed side by side the test for recoverability of damages for economic loss ought to be the contractual one. The parties had an opportunity to draw special circumstances to each other's attention at the time that the contract was formed and the existence of a concurrent duty in tort, particularly arising out of the same assumption of responsibility that existed under the contract, should not displace the consensus.
  74. So, I am satisfied that the question I have to consider is whether the claim, properly analysed, falls within "matters relating to a contract". It is of no consequence that the claimant elects to pursue a purely tortious remedy if it relates to a contract, as it would still be caught within rule 3(a).
  75. The claim is pleaded in the claim form as "damages for breach of contract and/or breach of duty and/or negligence in relation to services provided by the defendant". In terms of duties this is encapsulated in paragraph 14 of the particulars of claim as,
  76. It is clear from this and each of the five pleaded particulars of duties[16] that the foundation of the claim arises from the retainer between the claimant and the defendant. I have set out a summary of how the claim is pleaded in paragraphs 30 to 33 above. The substance of the claim is rooted in contract and is correctly categorised as "matters relating to a contract".
  77. There is not a separate gateway for the claimant under rule 3(c) but I have already concluded that they have jurisdiction to bring this claim in England under rule 3(a).
  78. As Lord Goff noted in Spiliada Maritime Corp v Consulex Ltd (The Spiliada) [1987] AC 460 (HL), paragraph 474A, the fundamental principle is that the court has to identify in which forum the case could most suitably be tried for the interests of all the parties and for the ends of justice. There was no dispute between the parties as to the principles that I should consider, both counsel referred me to the notes to the White Book, paragraph 6.37.22.
  79. The applicable factors are encapsulated in the case of The Spiliada where the House of Lords considered the factors applicable to both granting a stay of English proceedings on the ground that some other forum was the appropriate forum and granting leave to serve proceedings out of the jurisdiction, which was considered to be the same. A summary of the law is set out by Lord Goff at pages 476 to 478 and the principles are set out in sub-paragraphs (a) to (f).
  80. Lord Goff referred with approval to the expression used by Lord Keith in the case of The Abidin Daver [1984] AC 398 at 415, when he referred to the "natural forum" as being "that with which the action had the most real and substantial connection." At page 478A,
  81. Given that I have concluded that the English court has jurisdiction under rule 3(a) of Schedule 4 of the 1982 Act the claimant is entitled to serve the defendant in Scotland without permission under CPR 6.32(1). The burden is on the defendant to persuade the court that it should exercise its discretion to stay the claim in England.
  82. The defendant's case is that Scotland is clearly the more appropriate forum. Mr Stephen, in his witness statement, does not elucidate much further than this. Although he did raise an issue that the treatment of prescription/limitation under the Prescription and Limitation (Scotland) Act 1973 is different to that in England under the Limitation Act 1980. Mr Phipps quite fairly said that he did not rely on that point and that it was not relevant for my considerations.
  83. The defendant submits that Scotland is the defendant's domicile, the location of the offices from which it conducted its practice and at which it performed its retainer. Its witnesses are located in Scotland. The natural and appropriate forum of this case is Scotland and there are no special circumstances of which justice requires that the trial should take place in England.
  84. Mr Dart in his witness statement at paragraph 20 sets out a number of factors which would support England being the appropriate forum, or rather undermines that Scotland is clearly or distinctly more appropriate than England.
  85. Whilst Scotland is a forum in which this claim could be tried, I am not satisfied that the claim would be tried more suitably there for the interests of all the parties and the ends of justice. The defendant has not discharged the burden of proof that England is not the natural or appropriate forum for the trial and that Scotland is clearly or distinctly more appropriate.
  86. It is plain that the appropriate forum for this claim is England and I refuse the stay.

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