18th Feb 2022
MR S. HACKETT (instructed by Griffin Law) appeared on behalf of the Defendant/Applicant.
I am not going to give you permission to serve out. Nothing you have said this morning has begun to touch the views which I came to on paper.
This litigation relates to the collapse of the business known as “Cambridge Analytica”, with which the parties are associated. The business of Cambridge Analytics was operated in the UK by six companies, all of which are now in liquidation. The Defendant is a company which bought the business of Cambridge Analytica. The Claimant (“Mr Nix”) was at all material times the CEO of Cambridge Analytica until his suspension on or around 19 March 2018 and his subsequent resignation on or around 15 April 2021.
On 13 December 2021 the Defendant issued an application for third party disclosure against the Respondent (the “Substantive Application”). As the Respondent is a New York situated LLP, and is a firm of lawyers which was advising the Claimant at the time of key points in the events which give rise to the dispute between the parties. The reason for the application is that the Defendant wishes to see the Respondent’s file to understand what communications passed between its representatives and Mr Nix.
On the same day the Defendant also issued an application seeking permission to serve the Respondent with the Substantive Application out of the jurisdiction (and by email) (the “Permission Application”).
On 21 January I dismissed the Permission Application on paper with the following reasoning:
“Application dismissed. The Court has no jurisdiction to make orders against third parties who are resident outside the jurisdiction. The appropriate route for obtaining evidence from a witness outside the jurisdiction is either via letter of request or via any jurisdiction which the local court may offer to grant disclosure in support of proceedings in this jurisdiction.”
The Defendant requested me to restore the Permission Application at an oral hearing to hear further argument.
The respondent to this application is not the defendant and even within the jurisdiction, the CPR 31.17 jurisdiction has to be carefully considered before it is exercised. This is a case where the respondent is outside the jurisdiction. The general principle in relation to people who are outside the jurisdiction is that which is expressed in Dicey, Morris and Collins on the Conflict of Laws para.11-142:
“The court ought to be cautious in allowing process to be served on a foreigner out of England. This has frequently been said to be because service out of the jurisdiction is an interference with the sovereignty of other countries. If there is doubt in the construction of any of the heads of jurisdiction, that doubt ought to be resolved in favour of the defendant… [and so on]. The court will refuse permission if the case is within the letter but outside the spirit of the rule.”
The question which I have raised with Mr Aldridge QC today is: how does this court have jurisdiction over the third party from whom disclosure is sought – and why should a partnership based in the US, which ex hypothesi is not capable of being made subject to the jurisdiction by virtue of residence here, be susceptible to this court’s orders?