Sucden Financial Limited v TMT Metals AG & Ors [2026] EWCA Civ 986

[2026] EWCA Civ 986Case No CA-2025-002647
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 2006 (Comm)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Robin Knowles J
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2026
Before
SIR GEOFFREY VOS(MASTER OF THE ROLLS)LADY JUSTICE ELISABETH LAINGLORD JUSTICE FOXTON
Between
SUCDEN FINANCIAL LIMITEDRespondent/Claimant
Andrew Trotter (instructed by Fox Williams LLP) for Second DefendantJason Robinson KC and Charles Littlewood (instructed by Macfarlanes LLP) for ClaimantHearing Hearing date : 8 July 2026
Approved JudgmentThis judgment was handed down remotely at 2pm on 31 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is an appeal, brought with the leave of Phillips LJ, against the decision of Mr Justice Robin Knowles (“the Judge”) dismissing the Second Defendant (“Mr Gupta”)’s application to set aside the order granting the Claimant (“Sucden”) permission to serve these proceedings on Mr Gupta out of the jurisdiction.[2]In his judgment reported at [2025] EWHC 2006 (Comm) (“the Judgment”), the Judge held that the proceedings could be served out of the jurisdiction pursuant to Practice Direction 6B paragraph 3.1(9)(a) (“the Tort Damage Gateway”) on the basis that a claim was made against Mr Gupta in tort where damage was sustained within the jurisdiction. Having reached that conclusion, the Judge did not decide whether the proceedings also fell, as Sucden had submitted, within: i) paragraph 3.1(3) (“the Necessary or Proper Party Gateway”) on the basis that Mr Gupta was a necessary or proper party to the claim brought against the First Defendant (“TMT”); and/or ii) paragraph 3.1(9)(c) (“the Tort Applicable Law Gateway”) on the basis that the claim in tort is governed by English law.[3]In its Respondent’s Notice, Sucden relies in the alternative on the Necessary or Proper Party and Tort Applicable Law Gateways, and also seeks to rely on paragraph 3.1(9)(b) (“the Tortious Act Gateway”) on the basis that damage which has been sustained by Sucden results from an act committed by Mr Gupta within the jurisdiction. Mr Trotter challenges Sucden’s entitlement to raise the Tortious Act Gateway on the appeal.

The background

[4]Sucden is a derivatives and commodities broker incorporated in England and Wales. Mr Gupta is resident in Dubai and has described himself as an indirect shareholder in and sole director of TMT, a metal trader incorporated in Switzerland.[5]In February 2010 Sucden and TMT contracted for Sucden to provide TMT with a futures and options trading facility (“the Facility”). The Facility was governed by English Law. TMT agreed, for the benefit of Sucden, to the jurisdiction of the English courts, with Sucden having the right to bring proceedings in other courts. The Facility provided for proceedings against TMT to be served on an agent for service in England and Wales who would be nominated by TMT in the “Individually Agreed Terms Schedule”, but no such agent was identified.[6]In March 2022 Sucden made margin calls on TMT, in respect of the Facility, which TMT did not pay. The precise sequence of events which followed may be in dispute to some extent, but Sucden’s case, as set out in the Particulars of Claim, is as follows: i) In response to the margin calls, Mr Gupta and TMT offered to provide security for TMT’s debt in the form of a bill of lading dated 15 March 2022 in respect of nine containers, “said to contain” 144 bundles of plate nickel cathodes. Sucden alleges that representations were made in the course of telephone conversations on 23 and 24 March 2022 that the bill of lading did indeed relate to a cargo of nickel cathodes. ii) In reliance, Sucden forbore from enforcing TMT’s debt, and entered into a letter agreement with TMT on 24 March 2022 (“the Letter Agreement”). The Letter Agreement stated that Sucden had agreed to hold the bill of lading as collateral for TMT’s indebtedness, and Sucden would credit the value of the cargo covered by the bill against TMT’s account and not take any action in the ledger of TMT without TMT’s prior approval for so long as it held the bill. Sucden agreed not to take possession of the cargo without giving 7 days’ notice to TMT prior to the arrival of the cargo at the discharge port. iii) On 27 May 2022, representatives of Sucden met Mr Gupta to discuss TMT’s continuing indebtedness, following which Mr Brianchon (an employee of Sucden’s parent company) recommended that Sucden seek to acquire an ownership interest in the cargo subject to the bill. iv) On 22 June 2022, a meeting took place in London between, among others, Mr Bailey, Sucden’s CEO, and Mr Gupta, in which it was agreed that TMT would provide Sucden with a pledge over the bill of lading. v) Following the meeting, the terms of a Memorandum of Deposit were negotiated between Sucden and TMT, which was finalised on 19 August 2022. vi) The Memorandum of Deposit (“MOD”) recorded Sucden’s agreement not to enforce its debt claim against TMT before 31 December 2022 in return for a pledge of the cargo covered by the bill. However, that forbearance was subject to an event of default regime, which permitted Sucden to declare all amounts immediately outstanding if certain events occurred. It was agreed that the MOD “and any non-contractual obligations arising out of or in connection with it” were governed by English law. TMT agreed to the exclusive jurisdiction of the English courts, with Sucden having the right to commence proceedings elsewhere. Under the MOD, TMT appointed an agent within this jurisdiction on whom “process in relation to any proceedings before the English Courts in connection with the Transaction Documents” (which included the MOD) could be served. In addition, TMT agreed to meet all costs incurred by Sucden in enforcing and preserving its rights under the MOD. vii) Sucden alleges that at the 22 June 2022 meeting in London, and in negotiations which preceded and followed that meeting, TMT and Mr Gupta represented that the bill of lading was indeed for a cargo of nickel cathodes, and Sucden says that it relied upon those representations in continuing to forbear from enforcing against TMT and in entering into the MOD.[7]TMT failed to discharge its debt to Sucden by 31 December 2022. After declaring an Event of Default under the MOD, Sucden took steps to exercise its rights as pledgee in relation to the nine containers said to contain nickel cathodes. However, when the containers were inspected, they were found to contain only a low-value metal composite. Sucden claims that this was known to TMT and Mr Gupta all along, and that, in essence, it was fraudulently induced by TMT, Mr Gupta and the Third Defendant (the shipper named in the bill of lading) to refrain from seeking to recover the debt due from TMT on the basis that the bill of lading provided security in the form of high value nickel when in fact it provided nothing of value. Sucden contends that its prospects of recovering the amount due from TMT deteriorated significantly during that period of fraudulently induced forbearance, not least because of proceedings concerning similarly fraudulent arrangements brought by Trafigura against TMT, Mr Gupta and others, which eventually culminated in a substantial judgment against the defendants for various causes of action including deceit (see Trafigura Pte Ltd v Gupta and others [2026] EWHC 159 (Comm)).

The proceedings

[8]These proceedings were issued on 11 August 2023. The Claim Form attached and incorporated the Particulars of Claim: i) A debt claim was brought against TMT under the Facility, but reliance was also placed on the MOD (paragraph 7). ii) Claims in deceit and fraudulent misrepresentation were made against TMT and Mr Gupta, it being alleged that they had made representations that the bill of lading related to a cargo of nickel cathodes which they knew to be untrue. iii) A claim in unlawful means conspiracy was advanced against all three defendants, the unlawful means being the deceit and fraudulent misrepresentation, the conspiracy being to harm Sucden by causing it to accept valueless security. iv) The loss and damage claimed was loss of the ability to recover the debt due from TMT (which it was alleged would have been recovered but for the forbearance fraudulently induced) together with expenses incurred in taking possession of and inspecting the containers.[9]On 15 August 2023, Mr Justice Bright gave Sucden permission to serve the Claim Form and the Particulars of Claim out of the jurisdiction on Mr Gupta and the Third Defendant. It is that order which Mr Gupta seeks to set aside on this appeal.[10]On 22 August 2023, Sucden purported to serve the proceedings on TMT within the jurisdiction by service on the agent for service appointed under the MOD although there is a dispute as to the efficacy of that service. On 1 September 2023, TMT filed an acknowledgment of service signed by Mr Gupta indicating an intention to challenge jurisdiction, and on 29 September 2023, TMT sought an extension of time within which to do so. However, on 30 October 2023 TMT filed a defence denying Sucden’s claim. The defence maintained that TMT had not been validly served with the proceedings and reserved a right of challenge on that basis. However, no such challenge had been brought within the time permitted for doing so, nor any sufficient extension of time sought.[11]The defence advanced was force majeure and a suggestion that Sucden had applied wrongful pressure to TMT and/or failed reasonably to exercise its contractual right to call for margin. TMT denied any knowledge that the bill of lading had misdescribed the cargo and denied that it had made any representations as to the nature of the cargo covered by the bill. It accepted, however, making representations that it had no reason to doubt the veracity and accuracy of the description of the cargo in the bill. Mr Gupta signed the statement of truth.[12]On 9 January 2024, Sucden applied for summary judgment on its debt claim against TMT. Mr Gupta served a witness statement in response, which referred to the June 2022 meeting he had attended with Sucden in London. On 19 April 2024, Sucden obtained summary judgment from Mr Justice Picken. TMT sought, but was refused, permission to appeal against that decision.[13]The process of serving Mr Gupta pursuant to the UK-UAE bilateral service treaty proved protracted, with the validity of the claim form being extended on 11 January 2024. Eventually, in June 2024 Sucden applied for an order for alternative service. That was granted by Mr Justice Henshaw, service was effected in the approved manner and subsequent attempts by Mr Gupta to challenge that order have failed.[14]Mr Gupta applied to set aside the service upon him on various grounds: that the claims did not come within a relevant gateway for service out; there was no serious issue to be tried; England was not the appropriate forum for the determination of the claim; and the order for alternative service should be set aside. This Court is only concerned with the first of those challenges, Mr Gupta having been refused permission to appeal against the Judge’s findings in Sucden’s favour in relation to the others. However, in the context of the forum conveniens challenge, Mr Gupta adduced evidence as to the June 2022 meeting through his solicitor.[15]Mr Gupta argued that the claims did not fall within the Necessary or Proper Party Gateway for two independent reasons: i) the Claim Form had not been validly served on TMT’s agent for service within the jurisdiction, because the Claim Form did not satisfy the requirements of CPR 6.11, not being claims “solely in respect of” the MOD which authorised the agent to accept service; and ii) summary judgment having been entered against TMT on the debt claim, which was unanswerable in any event, there had never been any claim as between Sucden and TMT which it was reasonable for the court to try (to which Mr Gupta could be said to be a necessary or proper party).[16]So far as the Tort Damage Gateway was concerned, Mr Gupta argued that the loss had occurred where the misrepresentations were made (which is not the manner in which Mr Trotter, who did not appear before the Judge, articulates Mr Gupta’s case) and/or that the forbearance in not pursuing the claim against TMT did not constitute damage for the purpose of the Tort Damage Gateway, being merely “prefatory” to the sustaining of damage. For the same reason it was argued that the Tort Applicable Law Gateway was not applicable. I should record that both parties argued the Tort Applicable Law Gateway issue on the basis that the applicable law of the tort claim turned on where the damage was suffered (i.e. Rome II, Article 4(1)), and not by reference to Article 4(3). While Mr Robinson KC attempted to invoke Article 4(3) for the first time in his oral submissions on this appeal, we refused permission to advance this argument, which had not been addressed in the skeletons, and for which the relevant authorities were not before the court.

The Judgment

[17]The Judge stated that the issues raised by Mr Gupta “appear to present arguable obstacles” to reliance by Sucden on the Necessary or Proper Party Gateway, but that he had concluded that Sucden was entitled to rely on the Tort Damage Gateway, with the result that it was not necessary to consider the position under the other gateways relied upon ([16]-[17]).[18]At [21]-[23],

the Judge held:

“The damage alleged to have been sustained by Sucden by reason of the deceit and fraudulent misrepresentation alleged against Mr Gupta, and the conspiracy in which he is alleged to have taken part, took two forms. First, delay in pursuing the Contract Debt and, second, the incurring of the Expenses. The alleged meeting is sufficient in my judgment to show damage sustained within the jurisdiction, in the form of delaying pursuit of the Contract Debt. On the allegations made, the meeting in England caused Sucden, itself in England, to continue to wait rather than act to enforce the Contract Debt, including through proceedings here. I am satisfied that there is a good arguable case that the claims fall within at least one of the heads of jurisdiction. I should add that Sucden also focused on the fact that its bank account into which the Contract Debt would (if paid) have been received was in the jurisdiction. I do not consider the point advanced Sucden’s position where the case is not about payment of the Contract Debt but inducement to delay the enforcement of the Contract Debt.”
[19]After Phillips LJ granted Mr Gupta permission to appeal against the Judge’s finding that Sucden’s claim fell within the Tort Damage Gateway, Sucden took steps to serve TMT under CPR 6.36 on the basis that in both the Facility and the MOD, TMT had submitted to the exclusive jurisdiction of the English court. Sucden obtained extensions of the validity of the Claim Form to do so. Such service was effected in Switzerland on 22 January 2026. Mr Gupta intends to challenge the orders extending the validity of the Claim Form, but those challenges are on hold pending the resolution of this appeal.

The Tort Damage Gateway

[20]I first consider the jurisdictional gateway which the Judge held was established to the “good arguable case” standard. Mr Trotter advanced two distinct arguments in support of his contention that damage was not suffered within the jurisdiction: i) First, that delay or forbearance in enforcing a debt did not constitute damage at all, but at best a risk of damage relying in that regard on the decision in Eurasia Sports Ltd v Aguad [2018] EWCA Civ 1742, [2018] 1 WLR 6089. This point had been identified prior to Mr Trotter’s instruction in the case, and I hope that it is not unfair to suggest that it formed his secondary argument on the appeal. ii) Second, that Sucden’s loss arising from its complaint that its forbearance prevented it from recovering the debt due from TMT was suffered in Switzerland, as the place of business and incorporation of the debtor and hence the situs of the debt, and not England, the place where it was accepted that the debt was payable.

The applicable legal principles

[21]The need to identify the place of damage arises both when determining what the applicable law of a tort is under Article 4(1) of Rome II, and when determining issues of jurisdiction in the context of the Tort Damage Gateway and the delict provisions of the Recast Brussels Regulation EU No 1215/2012 and its predecessors and the Lugano Convention. In both contexts, it has generated a significant volume of case law, particularly when dealing with claims for financial or economic loss. It is not necessary for the purposes of this appeal to conduct a full review of the authorities, it being sufficient to focus on the two lines of case law which featured centrally in argument. The difficulties of formulating general principles as to the location of damage applicable to all cases in which financial loss is suffered are well-known. In Kwok and others v UBS AG [2023] EWCA Civ 222, [2023] 1 WLR 1984, [46], Sir Geoffrey Vos MR stated that “it is, in my judgment, dangerous to seek to define the test for where damage occurs in a wide range of financial loss cases, because they are likely to be so fact dependent.”[22]Eurasia v Aguad was a claim brought by an Alderney company which operated a betting agency. The claimants contended that they had been induced to provide the defendants with credit which could be used to place bets by misrepresentations as to the security provided or to be provided. The claimant argued that the damage was sustained in London where the relevant defendants were extended credit for placing bets which they would not have been afforded but for the misrepresentations as to security. The first instance judge accepted that argument, but the defendant appealed on the basis that the provision of credit was not damage, but merely prefatory to sustaining damage, with the damage only being incurred where the defendants failed to pay what was due or provide the security promised (in both cases Malta). Floyd LJ accepted that argument, holding at [30]:
“I think Mr Gunning is right that the act of allowing the defendants credit is merely prefatory to the sustaining of damage and does not itself constitute damage for the purposes of the tort gateway. The act of allowing credit is broadly analogous to the prior contractual commitment in the ABCI case which might or might not have been followed by an investment. Here the provision of credit is no more than the offer of an overdraft facility. Damage is sustained when a defendant places a bet and loses. To put it another way, the provision of credit merely exposes the claimant to the risk of damage, but does not itself amount to damage.”
[23]At [32], he continued:
“If the damage is characterised as the impact of the failure of the defendants to meet their monetary obligations by providing security, then it seems to me that it is clear that that damage is felt in the place where the money was to be received, which was Malta. Although it is right that a conclusion that damage is felt where the claimant holds its bank account needs to be carefully scrutinised, it remains a possible conclusion. In this case, on the basis that that is how the damage should be characterised, I think it is the right conclusion.”
[24]Gross and Longmore LJJ agreed.[25]Eurasia is one of a number of cases which emphasise that damage is unlikely to have been constituted by an act which the claimant is able to reverse of its own motion (adopting Floyd LJ’s analogy, a bank can withdraw an overdraft before any debt balance is incurred). Similar reasoning was adopted in MX1 Ltd v Farahzad [2018] EWHC 1041 (Ch), [2018] 1 WLR 5553, [39(7)] and Hillside (New Media) Ltd v Baasland [2010] EWHC 3366 (Comm), [2010] 2 CLC 986. The concept of irreversibility is referred to by Professor Andrew Dickinson in The Rome II Regulation (2008), para 4.67 and in his chapter in Dicey, Morris & Collins’ The Conflict of Laws (16th), [35-026], referring to Case C-12/15 Universal Music International Holding BV v Schilling [2016] QB 967, [31].[26]The second line of cases concerns wrongful interference with contractual obligations. The first in time is Dolphin Maritime Services v The Swedish Club [2009] EWHC 716 (Comm), [2009] 1 CLC 460, in which Dolphin, who acted as claims agents, benefited from a contractual promise made by the cargo underwriters that sums recovered from various third parties in connection with a marine casualty would be paid into the claimant’s bank account in London (which would facilitate the recovery of the commission payable to the claimant on such recoveries). However, the cargo underwriters agreed with the defendant P and I Club to settle claims against a vessel involved in the casualty on the basis that the settlement sum would be paid to a different account in another jurisdiction. Dolphin brought proceedings in tort against the Club for inducing breach of the underwriters’ promise to ensure all settlement sums were paid into Dolphin’s account, and for unlawful means conspiracy to procure such a breach. An issue arose as to whether the English court had jurisdiction over those claims under the Judgments Regulation, which in turn depended on whether the damage had occurred in England and Wales.[27]At [30-31], Mr Justice Christopher Clarke noted that identifying the place where economic loss had occurred was not a clear-cut process, and that the court should be wary of the suggestion that loss was suffered in a particular place simply because the claimant kept its accounts there. After a survey of CJEU authorities, he held at [57-58]:
“Dolphin's essential complaint is that it suffered harm because it did not receive the $ 8.5 million into its bank account which it should have done because, despite knowledge that this would involve a breach of the underwriters' contract with Dolphin, the Club paid it to their accounts in Turkey … When, in those circumstances, I ask myself ‘where the damage to the direct victim occurred’ … or ‘where the event giving rise to the damage, and entailing tortious liability, directly produced its harmful effects upon the person who is the immediate victim of that event’ … or ‘where the event giving rise to the damage caused injury’ … the answer appears to me that it is in this country, where Dolphin did not receive the money which, if the contract had been performed, it should have received.”
[28]At [59], he also asked himself the question “what would have been the position if the tort complained of had not taken place” and held that:
“the answer is that payment would have been made to Dolphin in England; and the essence of Dolphin's complaint is that that did not occur. Mr Thomas submitted that an inquiry as to what would have happened if the tort was not committed was no guide to the question – where did the damage occur? If there was no tort, there would have been no damage. In some cases, e.g. in cases of damage to goods or persons, the question may have no great utility. But in others where the claimant has failed to obtain some property or money which he would otherwise have received the answer to the question may be a guide to identifying where the harm in the particular case occurred.”
[29]At [60], Christopher Clarke J distinguished between a case “in which the claimant complains that he has lost his money or goods” and a case in which “the claimant complains that he has not received a sum which he should have received”, suggesting that in the latter case:
“the harm lies in the non receipt of the money at the place where they ought to have been received, and the damage to him is likely to have occurred in the place where he should have received it. That place may well be the place of his domicile and, therefore, also the place where he has suffered loss.”
[30]The second case is AMT Futures v Marzillier [2014] EWHC 1085 (Comm), [2015] 2 WLR 187, which concerned the place of damage in a claim in which the defendant was alleged to have procured a breach of English jurisdiction clauses between the claimant and its clients. Mr Justice Popplewell’s decision on the application of the principles to the facts of that case (and in particular whether the harm was the fact that proceedings were not brought in England and was suffered here, or that the claimant had been sued in Germany, and the harm suffered there) was reversed on appeal, but there was no criticism of his summary of the applicable principles at [34]. For present purposes we are concerned with [34(6)-(7)] where Popplewell J stated:
“There is a difference between a case in which the claimant complains that he has lost his money or goods … and a case in which the claimant complains that he has not received money or goods which he should have received. In the former case the harm may be regarded as occurring in the place where the money or goods were lost, although the loss may be said to have been consequentially felt in the claimant's domicile. In the latter case the harm lies in the non receipt of the money or goods at the place where they ought to have been received, and the damage to him is likely to have occurred in the place where he should have received them. It may assist in identifying the place where damage occurred to ask what would have happened if the tort or delict had not been committed … That is not, however, always an answer to where the damage has occurred. That question engages the issues of which damage is direct, immediate and initial and which merely indirect or consequential.”
[31]In Pan Ocean Chartering Inc v UNIPEC UK Co Ltd [2016] EWHC 2774 (Comm), [2017] 2 All ER (Comm) 196, a claim was brought alleging tortious interference with a chartering broker’s right (alleged to be contractual) to the payment of commission in respect of a contract of affreightment. The claim was brought against the parties to that contract, who it was alleged had deliberately ceased to nominate cargos thereunder in order to defeat the claimant’s right to commission. One of the many issues faced by Mrs Justice Carr was the applicable law of the claim. At [196] she referred to Popplewell J’s analysis in AMT Futures, noting that while the Court of Appeal had reached a different conclusion to the judge on the result in the case, there had been no criticism of his analysis of the relevant principles at [34]. At [200], she noted that in the case before her, there was a “sole, direct and immediate loss, namely the non-receipt of money”, and that “the harm lies in the non-receipt of money at the place where it ought to have been received, and the damage occurred where POC should have received it.”[32]Finally, in Lakatamia Shipping Company v Su [2021] EWHC 1907 (Comm), claims were brought against the defendants, inter alia, for participation in two unlawful means conspiracies to cause the claimant loss by assisting in the dissipation of the defendant’s assets in breach of a post-judgment freezing injunction. At [843], Mr

Justice Bryan held that loss was suffered in England:

“where the Judgment Debt stands to be paid, and where Lakatamia suffers damage if it is not paid or the ability for it to be paid is impaired – put another way England is the country where the Judgment Debt should have been paid, and the damage has accordingly occurred here.”

The application of those principles in this case

[33]Sucden’s pleaded case is that it could and would have recovered the debt due from TMT at the time Mr Gupta made false misrepresentations intended to induce Sucden to refrain from enforcing the debt, but that the debt had ceased to be recoverable by the time the falsity of those representations became apparent. While Sucden pleads that it was “likely” that the debt could no longer be recovered, in a civil case in which facts are found on the balance of probabilities, that amounts to an assertion that the debt is no longer recoverable. Mr Gupta, for his part, accepted in the evidence filed on his behalf before the Judge that the debt was not recoverable when it was claimed, but contended that was equally the case at all earlier points in time. Sucden challenges that assertion, pointing to evidence of assets which TMT had in the jurisdiction. It was not suggested that Sucden’s case in that regard did not meet the requisite standard of arguability.[34]Sucden’s complaint cannot realistically be analysed as involving only a risk of loss – it clearly asserts an actual loss in the form of debt which was recoverable when Sucden was fraudulently induced not to enforce it, but which had ceased to be recoverable by the time proceedings were commenced. The matters said to constitute damage do not have the reversible quality of the provision of credit or granting of an overdraft addressed in Eurasia. For that reason, Mr Trotter’s first challenge to the application of the Tort Damage Gateway fails. It should be noted that this particular challenge focussed on the Judge’s reference at Judgment [21] to the damage as “delaying pursuit of the Contract Debt”. However, I would respectfully suggest that that is not a helpful characterisation of the damage claimed. It is clear from the Particulars of Claim that the damage asserted is not the delay itself, but the fact that the debt ceased to be recoverable during the period of the delay.[35]As to the second challenge, Mr Trotter accepted that the effect of the Dolphin Maritime line of authorities was that if Sucden’s claim had been for tortious interference with its contractual right to be paid by TMT, the damage would have been sustained in London, where the debt was payable. He accepted that that would also be the position if the claim had been premised on the unlawful dissipation of TMT’s assets, so as to leave it unable to pay the debt (e.g. through the Marex tort or an unlawful means tort premised on breach of a freezing injunction as was the position in the Lakatamia case). However, he argued that this was not the case where the tortious conduct complained of arose not from the dealings of the tortfeasor and the debtor, but the dealings of the tortfeasor with the claimant creditor, and that the damage suffered is of a different kind, and suffered in a different place, in the latter case. He argues that the damage of which Sucden complains is, in essence, the erosion of the value of the debt, which is sustained at the situs of the debt. In that regard, he relied upon the principles established in cases dealing with the effect of a third party debt order on a debt owed by a debtor domiciled abroad which have held that, save where the debt is subject to an exclusive jurisdiction clause which requires it to be asserted in a particular jurisdiction, the situs of a debt is the domicile of the debtor: see Hardy Exploration & Production (India) Inc v Government of India [2018] EWHC 1916 (Comm), [2019] QB 544.[36]The issue with the present case is not the situs of the debt for the purpose of determining whether payment pursuant to an order of the English court can effect a valid discharge of the debt, but the place where the damage for which Sucden claims was suffered. On that question, I am satisfied that the technical distinction which Mr Trotter seeks to draw cannot be sustained. The essential harm of which Sucden complains, as in Dolphin Maritime and the subsequent cases, is that a debt which was payable to it in London can no longer be recovered: to repeat, it pleads that it “would likely have recovered” the debt at the time when it was induced not to demand repayment, and as a result of the delay caused by the fraudulent misrepresentations, “it is likely that the Debt cannot be recovered”. Adopting the approach Christopher Clarke J found helpful in Dolphin Maritime in identifying the place of loss, if the question is asked “what would have happened if the wrongful conduct had not occurred?”, the answer is that the debt would have been paid to Sucden where it was due, in England.[37]I am unable to identify a principled basis for concluding that the place of damage which manifests itself, so far as the creditor is concerned, in non-recovery of the debt should differ depending on whether the wrongful conduct in question was wrongful procurement or dissipation of the debtor’s assets on the one hand, or a fraudulent inducement of the creditor not to seek payment for a period (during which the debtor’s asset position deteriorates) on the other. Mr Trotter’s focus on the particular mechanics by which the tortious conduct impacted on the recovery of the debt would give rise to real difficulties where the wrongful conduct complained of involved fraudulent statements to the creditor to create a window in which wrongful dissipation of the debtor’s assets might be effected, or fraudulently inducing the creditor to release assets from the scope of a freezing injunction (which was the position in Surzur Overseas Ltd v Koros [1999] 2 Lloyd’s Rep 611).

Conclusion

[38]For these reasons, and despite Mr Trotter’s admirable submissions, I am satisfied that the Judge was right to conclude that Sucden’s claim falls within the Tort Damage Gateway, although I would characterise the damage differently from the Judge. For that same reason, the claim falls within the Tort Applicable Law Gateway (through the application of Article 4(1) of Rome II).[39]Mr Trotter sensibly accepted that if the Tort Damage Gateway applied to Sucden’s claim relating to the debt due from TMT, then the jurisdiction challenge could not sensibly be maintained in relation to the expenses claim, it being sufficient that some significant damage was suffered in the jurisdiction (Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391, 437).[40]That conclusion is sufficient to dispose of the appeal. However, I will address the other aspect of the tort gateway relied upon, on which the court heard full argument.

The Tortious Act Gateway

[41]Sucden relied in the alternative on the Tortious Act Gateway, arguing that the misrepresentation made at the meeting in London in June 2022 was sufficient to bring the claim within this gateway. It was common ground that the test to be applied was that set out in Metall und Rohstoff AG at 437 (emphasis added):
“What if damage has resulted from acts committed partly within and partly without the jurisdiction? This will often be the case where a series of acts, regarded by English law as tortious, are committed in an international context. It would not, we think, make sense to require all the acts to have been committed within the jurisdiction, because again there might be no single jurisdiction where that would be so. But it would certainly contravene the spirit, and also we think the letter, of the rule if jurisdiction were assumed on the strength of some relatively minor or insignificant act having been committed here, perhaps fortuitously. In our view condition (c) requires the court to look at the tort alleged in a common sense way and ask whether damage has resulted from substantial and efficacious acts committed within the jurisdiction (whether or not other substantial and efficacious acts have been committed elsewhere): if the answer is yes, leave may (but of course need not) be given .”

Should Sucden be permitted to take this point?

[42]A preliminary objection was made that it was not open to Sucden to take this point, having not advanced it before the Judge. Both parties addressed this issue by reference to the guidance given in Singh v Dass [2019] EWCA Civ 360, [16]-[18]:
“First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial … Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs.”
[43]Mr Trotter relies upon the second paragraph. He submits that, to establish the availability of the Tortious Act Gateway, it was necessary for Sucden to demonstrate a good arguable case that a wrongful, rather than merely innocent, representation was made at the London meeting. He contends that if Sucden had relied upon this gateway before the Judge, Mr Gupta would have wanted to adduce evidence on the issue of what representations were made at the London meeting, and whether they were made dishonestly, and adduce evidence on the issue of whether any representations made were “substantial and efficacious”. Having been denied that opportunity, he submits that Mr Gupta would be prejudiced if Sucden was to be permitted to raise the Tortious Act Gateway on appeal.[44]As to the position before the Judge: i) Mr Gupta had served witness evidence for the summary judgment application which accepted that he had met Mr Bailey of Sucden in London and that Mr Bailey had demanded immediate payment of TMT’s debt at that meeting. ii) Through his solicitor, Mr Gupta also adduced evidence addressing the London meeting at the hearing before the Judge which effectively accepted that at the meeting it was agreed to formalise a pledge of the bill of lading. He also adduced evidence addressing the significance of the London meeting in the context of the other interactions between the parties, for the purpose of addressing the issue of forum conveniens. iii) Mr Gupta had signed the statement of truth for TMT’s defence which admitted both the fact of the London meeting, and that at the meeting Mr Gupta agreed with Mr Bailey to formalise an agreement by which the bill of lading would be pledged as security for the debt. TMT’s defence also accepted that in the negotiations concerning the bill of lading, TMT had represented that it “had no reason to doubt the veracity and accuracy of … the statement that the nine containers … were said to contain 144 bundles of full plate nickel cathodes”.[45]It was, therefore, common ground that the meeting involved Sucden pressing for payment, and an agreement that TMT would enter into a pledge of the bill of lading as security for that indebtedness. I cannot see how any additional evidence adduced by Mr Gupta about the meeting could arguably have led to the conclusion that there was no good arguable case that Mr Gupta had represented that the bill of lading was what it purported to be, or at least (adopting the position Mr Gupta had approved on behalf of TMT) that he had no reason to think otherwise. It has not been suggested that there is no good arguable case that Mr Gupta was aware that the containers covered by the bill of lading did not contain nickel, although this is denied.[46]As to whether the representations arguably made at the London meeting were a substantial and efficacious cause of Sucden’s loss, the number and broad nature of the interactions between Sucden, TMT and Mr Gupta culminating in the signing of the MOD are essentially agreed, save as to what representations were made in the process and whether they were known to be untrue. Whether any misrepresentations made at the London meeting were arguably a substantial and efficacious cause of the loss claimed is essentially an issue of characterisation. In any event the significance of the London meeting in the context of other interactions was the subject of evidence on Mr Gupta’s behalf, as I have stated.[47]In these circumstances, I am satisfied that permitting reliance on the Tortious Act Gateway involves no risk of prejudice to Mr Gupta, and that Sucden should be allowed to take this argument.[48]As I have explained, I am satisfied that there is a good arguable case that Mr Gupta made a fraudulent representation at the London meeting in relation to the bill of lading. Mr Trotter’s argument that this was not a substantial and efficacious cause of Sucden’s loss was that, in effect, Sucden had already decided to forbear enforcing the debt in return for security in the form of the bill of lading through the Letter Agreement of 24 March 2022, and that the London meeting did not materially affect the position.[49]I can deal with this argument briefly: i) It is correct that before the London meeting, Sucden had entered into the Letter Agreement, which gave Sucden the right to possession of the bill of lading, on certain terms, but which did not pledge the bill. ii) However, the Letter Agreement did not commit Sucden to forbear enforcing its debt claim for any particular period, and it is common ground that Sucden was pressing for payment of TMT’s debt at the London meeting. iii) It was the London meeting which, on the pleaded case, involved a significant change in the parties’ dealings: from Mr Bailey insisting on payment at the start of the meeting, to an agreement to formalise an arrangement later documented in the MOD, by which Sucden committed not to enforce the debt for a specified period, in return for a pledge over the bill of lading. iv) Finally, it is arguable to the requisite standard that if, at the London meeting, Mr Gupta had conducted himself in such a way as to avoid any suggestion that the bill of lading was what it purported to be, Sucden would have been put on its guard and acted accordingly.[50]In these circumstances, I am satisfied that Sucden has a good arguable case that a fraudulent misrepresentation was made by Mr Gupta at the London meeting which was a substantial and efficacious cause of the non-enforcement of the debt from that point onwards, and hence of the loss Sucden claims. Indeed the significance of the London meeting in this regard can be seen from the fact that it involved a high level interaction between Mr Gupta, TMT’s principal, and Sucden’s CEO.

The Necessary or Proper Party Gateway

[51]The conclusions reached in relation to the Tort Damage and Tortious Act Gateways are sufficient to dismiss the appeal. The arguments concerning the Necessary or Proper Party Gateway can be left to a case in which they are central to its determination.[52]I agree.

Sir Geoffrey Vos, Master of the Rolls

[53]I also agree.

Cited in 1 later judgment