Chopra & Anor v Bank of Singapore Ltd & Anor [2015] EWHC 1549 (Ch)

Case No HC-2014-001362[2015] EWHC 1549 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2 June 2015
Before
THE HON MR JUSTICE ARNOLD
Between
RENU CHOPRAClaimantsVIVEK RATTANClaimantBANK OF SINGAPORE LIMITEDDefendantsOVERSEA-CHINESE BANKING CORPORATION LIMITEDDefendant
Ken Rogers and Amardeep Dhillon (instructed by Hughes Paddison) for ClaimantsNik Yeo (instructed by Jones Day) for DefendantsHearing Hearing dates: 12-13 May 2015
JudgmentMR JUSTICE ARNOLD :ContentsTopic Paras Introduction 1 Factual background 2-60 The Claimants 3-4 The Defendants 5-6 Mr Mehta 7 The opening of Mr Rattan’s account with IAPB 8-17 The relevant provisions of the Services Agreements 18-25 The opening of Mrs Chopra’s account with IAPB 26-34 The Claimants’ investments in the FLC bonds 35-47 OCBC London’s private banking business 48-55 Service of the Claim Form 56-60 The Defendants’ applications 61 The Claimants’ claims against IAPB 62-92 Misrepresentation and negligence 63-66 Statutory torts under the FSMA 67-92 Issue 1: Does this Court have jurisdiction under Article 15 of the Brussels I Regulation?93-95 Issue 2: Was the Claim Form validly served on IAPB?96-113 The law 96-100 Assessment 101-113 Issue 3: Should service of the Claim Form on IAPB be dispensed with?114-116 Issue 4: Should the Claimants’ claim against OCBC be struck out?117 The remaining issues 118 Issue 5: What is the law applicable to the Claimants’ tort claims?119-124 Issue 6: Is clause A(30) of the Services Agreement unenforceable?125-141 The Rome Convention 126-127 UCTA 128-133 UTCCR 134-141 Issue 7: Forum non conveniens 142-154 Conclusion 155Introduction
[1]In June and July 2008 the Claimants each invested US$200,000 in a bond issued by OJSC Financial Leasing Company (“FLC”). The Claimants’ purchases were arranged by the First Defendant, which was then called ING Asia Private Bank Ltd (“IAPB”). FLC subsequently defaulted on the bonds. The Claimants allege that the bonds were mis-sold to them, in particular because IAPB represented that they were “quasi-Russian sovereign risk” when that was not the case. In June 2014 the Claimants commenced this claim against IAPB and its parent company since January 2010, the Second Defendant (“OCBC”), by issuing a Claim Form. In October 2014 the Claimants purported to serve the Claim Form upon both Defendants at OCBC’s premises in London. The Defendants have applied for(i) a declaration that IAPB has not been served,(ii) an order striking out the claim against OCBC and(iii) (if necessary) for a stay of the proceedings on the ground of forum non conveniens. The Claimants have not made any application for permission to serve the Claim Form on IAPB outside the jurisdiction.

Factual background

[2]The following account of the factual background is based on the evidence presently before the court. This evidence is incomplete, untested and in some respects conflicting. Nevertheless I must make some provisional findings for the purposes of resolving the jurisdictional issues.

The Claimants

[3]The First Claimant (“Mrs Chopra”) graduated from a United Kingdom university and has lived permanently in the UK since 1976. She worked primarily in the fields of personnel management and human resources, but is now retired. She is divorced and has two children. She says she has little understanding of financial matters and investing.[4]The Second Claimant (“Mr Rattan”) qualified as a chartered accountant in the UK in 1983. He was employed as an accountant from then until 1987. From 1988 to 2009 he was employed as an investment banker. During this period he worked for several international banking institutions in London. From 2005 to 2009 he was employed by GE Capital as Managing Director (Originations) Leveraged Finance, which he describes as a marketing oriented position. He is currently self-employed and works as a financial consultant in the UK and Ireland.

The Defendants

[5]IAPB is a company registered in Singapore with premises in Singapore. Prior to 29 January 2010, it was part of the ING group of companies. IAPB was not then and is not now registered at Companies House as a foreign company, and the Defendants contend that it did not then and does not now carry on business or have any presence in this jurisdiction. Consistently with this, IAPB was not and is not an authorised person under the Financial Services and Markets Act 2000 (“FSMA”). IAPB’s parent company was ING Bank NV, a company registered in the Netherlands, with a registered UK branch office, which was an authorised person under the FSMA. IAPB’s shares were acquired by OCBC from ING Bank NV on 29 January 2010, after which IAPB changed its name to Bank of Singapore Ltd.[6]OCBC is also a company registered in Singapore. OCBC has a registered UK branch office (“OCBC London”) with premises at The Rex Building, 62 Queen Street, London EC4R 1EB. These premises are leased and paid for solely by OCBC and all the staff who work there are employed by OCBC. OCBC London is an authorised person under the FSMA and is regulated by the Financial Conduct Authority (“FCA”) and the Prudential Regulation Authority (“PRA”).

Mr Mehta

[7]From March 2004 to October 2010 Ranjit Mehta was employed by IAPB with title initially of “Assistant Director” and then “Director”. He was based in Singapore. His role was to act as relationship manager to a group of about 35-40 private banking clients at a time located in various countries. As discussed below, Mr Mehta was the Claimants’ relationship manager at the time that they purchased the FLC bonds. It is common ground that Mr Mehta was not an approved person under the FSMA. Mr Mehta is now employed by Barclays Bank in Singapore, and so he is an independent witness. (Indeed, rather oddly, given the Claimants’ claims, Mr Mehta says in his witness statement, and the Claimants do not deny, that the Claimants remain clients of his.)

The opening of Mr Rattan’s account with IAPB

[8]Sanjay Sethi is Mr Rattan’s brother-in-law and a friend of Mrs Chopra. Mr Sethi had known Mr Mehta since the time that Mr Mehta was employed by Rabobank in India, before he joined IAPB. Mr Sethi remained, or became, a client of Mr Mehta’s when Mr Mehta moved to IAPB. In about February or March 2006 Mr Mehta asked Mr Sethi to put him in touch with potential overseas clients. Mr Sethi gave Mr Mehta Mr Rattan’s name and telephone number.[9]Mr Mehta’s evidence is that Mr Sethi told Mr Mehta that Mr Sethi had discussed his own investments made through Mr Mehta with Mr Rattan, and that Mr Rattan had expressed interest in IAPB’s services because he had become dissatisfied with UBS, his bankers at that time. Mr Mehta says that his impression, both from Mr Sethi and Mr Rattan, was that Mr Rattan was expecting Mr Mehta to call him. Mr Sethi’s evidence is that he did not tell Mr Rattan to expect a call from Mr Mehta, but he does not deny telling Mr Mehta that Mr Rattan was interested in IAPB’s services. Mr Rattan’s evidence is that Mr Sethi did not tell him to expect a call from Mr Mehta, but he does not deny telling Mr Sethi that he was interested in IAPB’s services.[10]Mr Mehta duly telephoned Mr Rattan. As I understand it, it is common ground that Mr Rattan was in England at the time of the call. Mr Mehta implies, but does not explicitly state, that he was in Singapore.[11]Mr Rattan’s evidence, which is not denied by Mr Mehta, is that Mr Mehta invited Mr Rattan to lunch at the Quilon restaurant in the St James’ Court Hotel in London on 9 March 2006 and that Mr Rattan signed the documentation to open an account with IAPB on that occasion. Consistently with Mr Rattan’s evidence, there is in evidence an Account Opening Form completed by Mr Mehta, signed by Mr Rattan and dated 9 March 2006. This form is headed “ING ASIA PRIVATE BANK LTD” and bears the legend “Services Agreement (Version 06/05)” in the footer. The form includes the following paragraph above Mr Rattan’s signature:
“I hereby request the Bank to open an account in my name, which shall be operated in accordance with the Bank’s Services Agreement and any amendments and supplements thereto, a copy of which has been received by me and its contents thereof fully understood by me.”
Mr Rattan also signed a Risks Disclosure Statement with the same footer reference, although this is undated.[12]Mr Rattan’s evidence is that he was not provided with a copy of the Services Agreement when he signed the Account Opening Form and Risks Disclosure Statement. This is inconsistent with his signed acknowledgement quoted above. It is also inconsistent with a further acknowledgement by Mr Rattan to the same effect contained in an Acceptance of Short Term Advances/Overdraft and Foreign Exchange/Option Trading Facilities form signed by Mr Rattan on 21 June 2006.[13]Furthermore, the Services Agreement took the form of a booklet containing the Account Opening Form and Risks Disclosure Statement printed within it on tear-out pages. Mr Mehta explains that his practice when meeting a client face-to-face to complete the Account Opening Form and Risks Disclosure Statement was to extract the relevant pages from the booklet in the client’s presence in order to fill them in, to take the signed documents away with him and to leave the rest of the booklet with the client. This evidence is supported by evidence given by Seok Chuan Goh, a lawyer employed by IAPB, and by Eric Teh, IAPB’s Global Head of Legal, that it was standard practice at IAPB in 2006-2008 for relationship managers to provide a complete copy of the booklet to prospective clients from which the Account Opening Form and Risks Disclosure Statement would be extracted, completed and returned to IAPB. Mr Mehta is confident that this is what happened in the case of Mr Rattan. Mr Mehta’s account is persuasive, and at this stage I prefer it to Mr Rattan’s version of events.[14]Mr Goh and Mr Teh explain that, on receipt of completed Account Opening Forms and Risk Disclosure Statements, IAPB’s “client on-boarding team” in Singapore would conduct due diligence upon prospective clients, which included the provision of client “biodata” by the relationship manager to the compliance department and credit checks. This process might take a month. If the prospective client was approved, a standard form letter would be sent from Singapore notifying them that a new account had been opened, the account number, the account type and relevant details.[15]The Defendants’ evidence includes a copy of Mr Rattan’s “biodata”. This records that Mr Rattan was approved as a client on 5 April 2006; that his relationship manager was Nikhil Advani and his alternative relationship manager was Mr Mehta; and that he was referred to Mr Mehta by an existing client (i.e. Mr Sethi). It also records a considerable amount of detail concerning Mr Rattan’s education, employment history, assets and liabilities, and financial experience. In particular, it states:
“Mr Vivek Rattan is a seasoned and sophisticated investor across virtually all asset classes. He is well-versed with direct equities, high-grade bonds, FX margin trading, mutual funds, hedge funds and structured notes. At IAPB he intends to allocate about 70% of his capital with leverage in high-yield debt (he has a vast exposure to this asset class as a result of his position as Head of Leveraged Finance at leading European Banks) …”
[16]Accordingly, it is probable that IAPB will have sent Mr Rattan a letter in very similar terms to the one to Mrs Chopra dated 14 May 2008 (as to which, see below) on or about 5 April 2006.[17]A portfolio summary statement for Mr Rattan’s account with IAPB as at 30 June 2008 shows that by then Mr Rattan had made substantial investments in fixed income securities, structured notes and equities in various parts of the world using the account.

The relevant provisions of the Services Agreements

[18]Version 06/05 of the Services Agreement has a cover page bearing the title “Services Agreement” and the name “ING Private Banking”. The first numbered page is headed:
“ING ASIA PRIVATE BANK LTD – 9 Raffles Place #08-01 Republic Plaza, Singapore 048619 Company Registration No. 197700866RR”
[19]Clause 1 contains the following definitions:
“Bank refers to ING Asia Private Bank Ltd and its successors-in-title and assigns. … Contract refers to any contract concluded by you, or your behalf, with or though the Bank in respect of investment in, or the sale or purchase of, any Securities. … Securities refers to:- … (ii) bonds, notes and other debt instruments …”

Securities refers to:-

[20]Clause A(17) provides:
“Risks Disclosure Statement PLEASE READ THE RISKS DISCLOSURE STATEMENT IN ANNEX A CAREFULLY The intention of the Risks Disclosure Statement is to inform you that the risk of loss in any trading or investments in Securities, foreign currencies, derivative products or a combination of any of them can be substantial. You should therefore carefully consider whether such transactions are suitable for you in light of your financial condition and your understanding of the nature of the transactions and the extent of your exposure to loss. In respect of all transactions entered into by you or by the Bank on your instructions or on your behalf, you understand and agree that:- … (v) subject to the provisions of clause C(4), in respect of all trades you may effect, you are deemed to have obtained independent advice from your legal, financial and investment advisers. The Bank does not hold itself or any of its directors, employees or agents out as acting in an advisory capacity to you in relation to any such trades. None of the Bank’s directors, employees or agents are authorised to give such advice. …”

PLEASE READ THE RISKS DISCLOSURE STATEMENT IN ANNEX A CAREFULLY

[21]Clause A(30) provides:
“Applicable law and Jurisdiction This Agreement shall be governed by, and construed in accordance with Singapore law. Unless expressly otherwise provided or agreed, or unless the rules of the applicable Exchange specify otherwise, each Contract shall be governed by and construed in accordance with Singapore Law. You hereby irrevocably submit to the non-exclusive jurisdiction of the Singapore Courts in connection with any action or proceeding that may arise out of or in connection with this Agreement or any Contract or Facility. Such submission shall not prejudice the Bank’s right to commence action against you in any other court of competent jurisdiction.”
[22]Clause C(4) provides:
“Management … The Bank, its Affiliates and/or their staff may provide you with information and express views in relation to investments. Such provision of information and expression of views shall not constitute the giving of investment advice … and the Bank, its Affiliates and their staff shall have no liability in respect thereof. …”
This clause also contains provisions related to discretionary investment management accounts, which did not apply to the Claimants.[23]The Services Agreement was subsequently revised in October 2006. The Defendants’ evidence is that a letter dated 2 October 2006 was sent by IAPB to all its clients which stated:
“Dear Valued Client, REVISED TERMS AND CONDITIONS IN THE SERVICES AGREEMENT AND UPDATED TO THE RISK DISCLOSURE STATEMENT Due to changes in the Singapore regulations (including but not limited to the Financial Advisors Act and Securities and Futures Act) and [sic] as well as evolution in the private banking industry practices, we have revised the terms and conditions in the services agreement that apply to and govern your relationship with ING Asia Private Bank Limited. At the same time, we have also updated the risk disclosure statement that we provide to our clients with the view to explain in greater detail the general risks associated with investing in the financial markets. A copy of the revised terms and conditions in the services agreement and the updated risk disclosure statement are attached for your perusal. We request you to review these documents carefully and retain them for your records.”

REVISED TERMS AND CONDITIONS IN THE SERVICES AGREEMENT AND UPDATED TO THE RISK DISCLOSURE STATEMENT

[24]Slightly oddly, the Defendants’ evidence suggests that the version of the Services Agreement enclosed with this letter was Version 09/07. It seems more likely that it was a Version 10/06 and that Version 09/07 was issued in September 2007, a proposition which is supported by the fact that Version 05/14 was issued on 1 June 2014. This discrepancy does not matter, however, since there is nothing to suggest that there was any material difference between any of the relevant versions of the Services Agreement. In particular, clause A(30) of both Version 06/05 and Version 09/07 is the same.[25]Mr Rattan has not explicitly denied receiving the letter dated 2 October 2006 or its enclosure, nor a similar letter and enclosure in September 2007 (assuming there was one).

The opening of Mrs Chopra’s account with IAPB

[26]At some point, probably in about April 2008, Mr Sethi gave Mr Mehta Mrs Chopra’s name and telephone number.[27]Mr Mehta’s evidence is that Mr Sethi told Mr Mehta that Mrs Chopra needed help investing a sum of money from the sale of a property in London. Mr Mehta says that his impression, at least from Mr Sethi, was that Mrs Chopra was expecting Mr Mehta to call him. Mr Sethi’s evidence is that he did not tell Mrs Chopra to expect a call from Mr Mehta, but he does not deny telling Mr Mehta that Mrs Chopra needed help in investing money from the sale of a property. Mrs Chopra’s evidence is that Mr Sethi did not tell her to expect a call from Mr Mehta, but she does not deny telling Mr Sethi that she needed help in investing money from the sale of a property. Furthermore, she gives evidence that, when Mr Mehta telephoned her, he asked whether she was selling her house, that she confirmed that she was and that she assumed that Mr Sethi had told Mr Mehta this. She explains that in May 2008 she sold her former matrimonial home which was part of her divorce settlement. A further point to note is that she says that Mr Mehta first telephoned her in early May 2008; but, having regard to the documents referred to below, this cannot be correct.[28]Mr Mehta duly telephoned Mrs Chopra. As I understand it, it is common ground that Mrs Chopra was in England at the time of the call. Mr Mehta implies, but does not explicitly state, that he was in Singapore.[29]Mrs Chopra’s Account Opening Form is in substantially the same terms as Mr Rattan’s. The only real difference is that it refers in the footer to “Services Agreement (Version 09/07)”. The form was completed by Mr Mehta, signed by Mrs Chopra and dated 18 April 2008. Mrs Chopra also signed a Risks Disclosure Statement with the same footer reference, although this is undated.[30]Mrs Chopra’s evidence is that she was not provided with the Services Agreement. This is inconsistent with her signed acknowledgement. Mr Mehta’s evidence is that he believes that, in Mrs Chopra’s case, he extracted the Account Opening Form and Risks Disclosure Statement from the booklet and sent them to Mrs Chopra by courier, together with the Services Agreement, for signature and return. This is supported by the evidence of Mr Goh and Mr Teh referred to above.[31]Counsel for the Claimants pointed out the Defendants’ evidence includes a form accepting IAPB’s General Credit and Trading Facilities Agreement which has been signed by Mrs Chopra and dated 18 April 2008. This document has also been signed by Mr Mehta, purportedly as having witnessed Mrs Chopra’s signature. Counsel suggested that this indicated that Mr Mehta met Mrs Chopra in London to obtain her signatures to the account opening documents. As he acknowledged, however, Mrs Chopra does not say that this is what happened, and an alternative explanation of the document is that Mr Mehta did not in fact witness her signature, but signed it subsequently (a possibility which is supported by the fact that the document bears a stamp and what appears to be a date of 21 April 2008).[32]On 14 May 2008 IAPB wrote to Mrs Chopra in the following terms:
“NEW ACCOUNT Dear Sir/Madam, Thank you for opening an account with ING ASIA PRIVATE BANK LIMITED (‘IAPB’). We are pleased to advise your account details as follows: Account No : 402572 Relationship Manager : Ranjit Mehta Account Types: Advisory … IAPB is regulated by the Singapore Financial Advisors Act in respect of the provision of financial advisory services to clients. However the bank has been granted an exemption by the Monetary Authority of Singapore from compliance with certain sections of the Financial Advisors Act and certain Notices issued by the Monetary Authority of Singapore when providing financial advisory services to high net worth individuals. Further details of the exemption are set out in pages 15 and 16 of the Services Agreement. …”
We are pleased to advise your account details as follows: Account No : 402572 Relationship Manager : Ranjit Mehta

Account Types: Advisory

[33]It appears that Mrs Chopra initially deposited the sum of US$125,260 in the account by means of a transfer from Dubai on 21 May 2008. This transaction, together with some subsequent ones, is recorded in a portfolio summary statement for the account as at 30 May 2008.[34]On 25 June 2008 Mrs Chopra’s account at IAPB was credited with the sum of just under £1.1 million remitted by her solicitors from the proceeds of sale of her property.

The Claimants’ investments in the FLC bonds

[35]On 9 June 2008 Mr Mehta sent an email (from the email address Ranjit.Mehta@Asia.ING.com) to Mrs Chopra, Mr Rattan and a number of other clients strongly recommending the purchase of a bond in a “Russian Government-owned entity” called OJSC United Airlines Corporation (“UAC”). Mr Mehta gave four reasons for recommending this issue, the first of which was: “Solid credit – despite not being rated (this is LPN issue and not a Eurobond), we believe if it were, the rating would be Ba1”.[36]Appended to Mr Mehta’s email was an email from Joanna Cheng of the Active Advisory Group at IAPB. This email provided a summary term sheet for the offering and supported the contents of Mr Mehta’s email. It gave Ms Cheng’s address as 9 Raffles Place, Singapore.[37]On 10 June 2008 Mr Mehta sent Mrs Chopra, Mr Rattan and other clients an email appending an email from Steve Evans, IAPB’s Emerging Market Debt Specialist, recommending investment in the UAC bond.[38]On 18 June 2008 Mr Mehta sent Mrs Chopra, Mr Rattan and other clients an email switching IAPB’s recommendation from the UAC bond to FLC’s maiden Eurobond. Mr Mehta again gave four reasons for recommending this issue, the first and fourth of which were:
“1. Solid credit – has an issuer rating of Ba2 and issue rating of Ba3; the UAC issue is not rated. … 4. This credit is also viewed as quasi-Russian sovereign risk. Russia’s foreign reserves are now well in excess of USD 500 billion.”
[39]Mr Mehta appended another email from Ms Cheng stating:
“* this is the operating subsidiary of United Aircraft Corporation. * FLC is Russia’s largest passenger aircraft easing operator controlled by the Russian govt. Russian Federation directly and indirectly owns 84.8% of FLC. Since 2001, Russian federation has injected $330mm of equity into the company and has budgeted $240mm equity injection each in 2008 and 2009. Also in the federal budget are $70mm and $220mm interest expense compensation to FLC for 2008 and 2009. The company’s Integral position is in helping the Russian government to achieve its objective of revitalizing its aviation industry. Under Putin, this has [sic] declaration has not been only one of words, but rather has been backed by money from the Federal budget. Over the past three years, FLC has received US $330 MM in equity injections and expects another US $720 MM in equity injections over the next three years. To reinforce the importance of FLC, parent UAC has provided Moody’s with a ‘comfort letter’ indicating its strong propensity to support FLC in the case of financial need. FLC operates leases of modern civil aircraft and equipment to leading Russian air carriers and Russian aircraft manufacturers. FLC is the owner of the aircraft on paper until the last lease payment is made. Current leasing portfolio is worth $430mm. By buying FLC investors essentially get exposure to a quasi-sovereign Russian risk, similar to UAC. However, compared to UAC, FLC is a more mature product for the international capital markets: the company has a history of 11 years, as opposed to 2 years of UAC, has 3 years of audited IFRS reports and the company has an international credit rating of Ba2. * the deal is being done by BCP securities and from experience, their deals don’t have a [sic] much liquidity as other bonds. That is one downside to this issue compared to UAC. But since both are about the same tenor and yield, this being the operating company may be slightly ahead of UAC in terms of the credit quality.”
[40]Attached to Ms Cheng’s email was a research report by Todd Schubert CFA, IPAB’s Deputy Head of Research, for whom a Singapore telephone number was given. The report stated that it was published by IAPB and that “IAPB is a licensed bank in Singapore regulated by the Monetary Authority of Singapore”.[41]Mr Mehta’s evidence is that he sent the emails dated 9, 10 and 18 June 2008 only to those clients of his who were actively investing at that time and whom he believed would be interested in the bonds in question having regard to his knowledge of those clients’ individual circumstances and objectives.[42]Mr Rattan’s evidence is that he was contacted by Mr Mehta by telephone between 18 and 20 June 2008. During this conversation, Mr Mehta again marketed the FLC bonds to him as being quasi-Russian sovereign risk. Mr Rattan says that “RM coerced me to invest in the bonds on the basis that they were a safe investment, backed by the Russian Federation”. Accordingly, Mr Rattan decided to purchase US$200,000-worth of the bonds, which he did on 25 June 2008. Although the precise source of the funds he used for this purpose is not presently clear, there is little doubt that he used money in his IAPB account (or sold another investment held in that account, which amounts to the same thing).[43]Mrs Chopra’s evidence is that Mr Mehta telephoned her in June 2008 to discuss the investments he planned to make on her behalf. Mrs Chopra spoke to Mr Mehta using a loudspeaker, so that her ex-husband could listen to the conversation. (There is no evidence from him, however.) The conversation lasted an hour. All Mrs Chopra says about the substance of the conversation (and nothing more is pleaded in the Particulars of Claim) is:
“RM informed us that he would be investing in the BRIC countries and all investments were made on his advice and I clearly recall the bond was sold to me as a government backed bond.”
[44]Mrs Chopra purchased FLC bonds worth US$99,779 on 30 June 2008 and US$100,305 on 9July 2008. I do not understand it to be in dispute that she used some of the money remitted to her IAPB account on 25 June 2008 for this purpose.[45]Mr Mehta explains that the FLC bonds were purchased in the name of IAPB, but on the specific instructions of clients, including Mr Rattan and Mrs Chopra. The bonds were then held in the clients’ accounts. In this way IAPB acted as custodian of its clients’ investments. Accordingly, it seems clear that the clients’ instructions were executed in Singapore. The bonds were governed by English law, but it does not appear that either of the Claimants knew that at the time they made their investments.[46]In January 2009 FLC defaulted on the interest payments on the bonds and it continued to do so until June 2013 when FLC defaulted on their capital repayment. I was told that this is because FLC was a victim of fraud. No bailout by the Russian government materialised. The Claimants contend that the bonds did not constitute quasi-Russian sovereign risk. Rather, they only had recourse to FLC.[47]It is convenient to note at this juncture that there is no suggestion that the Claimants dealt with any ING company, office or employee in England at any stage of their relationship with IAPB.

OCBC London’s private banking business

[48]Since 16 June 2011 OCBC London has carried on a private banking business which trades under the name “Bank of Singapore”. The fact that, in the United Kingdom, Bank of Singapore is the trading name of OCBC’s private banking business is stated(i) on IAPB’s website,(ii) on the business cards used by OCBC London’s employees,(iii) in the LinkedIn profile of at least one of those employees,(iv) in the standard text included in emails sent by OCBC London’s employees,(v) on an A4 size notice hung by the lifts in the reception area of OCBC London’s premises on the third floor of The Rex Building and(vi) on the UK Financial Services Register maintained by the FCA.[49]The Defendants’ evidence is that OCBC London acts as a referral intermediary for IAPB. The relationship between IAPB and OCBC London is governed by a Services Agreement dated 27 October 2010. Clause 1.1 of this Agreement provides that OCBC London will provide to IAPB “the Services set forth in the Specifications Schedule”. The Specifications Schedule provides at I:
“[OCBC London] will provide [IAPB] with the following Services in London: (A) Introduction of Potential Private Banking Clients to [IAPB] • Identify potential new clients for [IAPB] and introduce clients to [IAPB] (B) Business Development • Actively market [IAPB]’s products; • Provide market information to [IAPB]; and • Disseminate allowable information relating to any new products and services of [IAPB] to those who express an interest therein, and to analyse as well as advise such persons, on their investment needs and requirements but not conduct of trust or other fiduciary business and investment management activities. Exclusions For the avoidance of doubt, the Services do not include the following: • Executing deals in investments on behalf of [IAPB] for clients; • Exercising [IAPB] authority or binding [IAPB] in any way.”
Exclusions

For the avoidance of doubt, the Services do not include the following:

[50]Clause 4.1 of the Agreement provides that IAPB will pay OCBC London “the amounts set forth in the Compensation Schedule (the ‘Purchase Price’)”.

(A) :

“[IAPB] shall pay to [OCBC London], monthly, an amount, together with VAT if applicable (hereafter referred to as the ‘Purchase Price’) equal to the fully allocated direct and indirect costs incurred by [OCBC London] in providing the Services as described in this Agreement plus a mark up of 10%, such Purchase Price constituting an arm’s length consideration for such Services provided pursuant to this Agreement.”
[51]Clauses14.1 and14.2 of the Agreement provide:
“14.1 [OCBC London] declares and agrees that it shall provide the Services as an independent contractor on a non-exclusive basis and nothing contained in this Agreement or otherwise shall be deemed to create any partnership, joint venture, employment, or relationship of principal and agent between the parties or to provide either party with any right, power or authority, whether express or implied, to create any such duty obligation on behalf of the other part. [OCBC London] acknowledges that the Services provided are solely within its control, and neither [OCBC London] nor [OCBC London’s] employees, representatives, agents or subcontractors will hold itself out as anything but an independent Contractor to [IAPB]. … 14.2 [OCBC London] declare [sic] and agree [sic] that it has and hereby retains the right to exercise full control of and supervision over the performance of [OCBC London]’s obligations hereunder and full control over the employment, direction, compensation and discharge of all employees assisting in the performance of such obligations, (ii) that it will be solely responsible for all matters relating to payment of such employees, including compliance with worker’s compensation, unemployment, disability insurance, central provident fund contributions, and all other laws, rules and regulations governing such matters …”
[52]Clause 16.1 provides:
“Except as expressly set forth in this Agreement, nothing in this Agreement shall be construed to constitute or appoint [OCBC London] as the agent, partner, joint venturer, or representative of [IAPB] for any purpose whatsoever, or to grant to [OCBC London] any right or authority to assume or create any obligation or responsibility, express or implied for, or on behalf of, or in the name of any other party designated herein, or to bind any such other party in any way or manner whatsoever.”
[53]Furthermore, the Defendants’ evidence is that OCBC London’s employees are carefully trained to act only in a manner that is consistent with this Agreement. Thus OCBC London’s Internal Rules and Instructions for OCBC Private Banking (dated December 2011) contains a “Summary of permitted and prohibited activities for OCBC Private Banking London” which begins with the following overview:
“OCBC London Branch has a Private Banking Team offering wealth management services to high net worth individuals with a connection to the UK. This team is permitted to operate in the designated investment business in the courtesy of the FSA [i.e. Financial Services Authority, the predecessor to the FCA and PRA] licence afforded OCBC London Branch. The Private Banking team in London (OCBC PBL) has no products of its own, but carries out the FSA … regulated activities of providing investment advice and arranging/bringing about deals in investments. OCBC PBL introduces clients to and arranges transactions with Bank of Singapore (BoS) in Singapore. BoS is a wholly owned subsidiary of OCBC Group and offers private banking services to high net worth individuals. OCBC PBL introduces clients to BoS and transmits instructions and correspondence to/from clients. The relationship between OCBC PBL and BoS is governed by a service level agreement signed by both parties. For marketing purposes OCBC London Branch has obtained approval to use the private banking trading name of ‘Bank of Singapore’. However, it is important to note that the business model itself remains unchanged, the team still operates under OCBC’s London FSA authorization and all PBL staff are OCBC employees. It is of the utmost importance that OCBC PBL operates in full compliance with English law and according to the requirements of the UK regulators. In short, the essential restrictions for PBL are: > They must NOT, under any circumstances, represent themselves to be an employee of BoS. BoS has no presence in London. > They must NOT bind BoS in any way. This includes decisions on client on-boarding and execution of any contracts between the client and BoS. If any member of PBL is believed to have breached any of the restrictions detailed in these instructions, disciplinary proceedings may be initiated by OCBC Bank which may result in their dismissal on grounds of gross misconduct. Failure to comply with these restrictions may also adversely affect the person’s current and/or future authorisation with the FSA.”

In short, the essential restrictions for PBL are:

[54]The document then proceeds to list a series of specific prohibited activities and permitted activities. Very similar statements are also to be found in a document headed “Dos and Don’ts” (dated January 2014).[55]Still further, OCBC London’s Terms of Business for Private Banking (28 February 2014 edition) provided to clients states on the cover page:
“These Terms of Business set out the basis upon which OCBC will provide certain investment services to you including advising you and taking your orders. You should take the time to read them carefully since you will be legally bound by them in your dealings with us. Please contact us if there is anything you do not understand. Please note that OCBC will not hold any money or investments for you. These will be held in accounts with our affiliate, Bank of Singapore Limited, in accordance with its terms of business. The Bank of Singapore Limited is incorporated and regulated in Singapore by the Monetary Authority of Singapore. The regulatory system and clients protections in Singapore are likely to differ from those available under the UK regulatory system.”

Service of the Claim Form

[56]The Claim Form was issued on 20 June 2014 (more than six years after the first of the representations relied on). The Claimants made no attempt to serve it until right at the end of the four month period of its validity. Mr Rattan attempted to serve the Claim Form and Particulars of Claim on both IAPB and OCBC on 17 October 2014 in the following manner.[57]Mr Rattan took two envelopes containing copies of the documents to The Rex Building, one marked for attention of OCBC and one marked for the attention of an entity Mr Rattan refers to as “BOS”. Mr Rattan defines this to mean “the private banking business of OCBC … re-named Bank of Singapore”. It therefore appears that the second envelope was addressed to “Bank of Singapore” and not to “Bank of Singapore Ltd”. This is supported by two matters mentioned below.[58]Mr Rattan went to the reception area on the ground floor and asked for “BOS” and OCBC. He was told to go to the third floor. He went to the third floor and spoke to a receptionist who has been identified by the Defendants as Tina Sadler (then a temporary receptionist and now a permanent employee of OCBC). According to Mr Rattan, he said that he had documents to serve on OCBC and “BOS”, and Ms Sadler replied “that’s fine, I can take them”. Mr Rattan asked for a receipt on headed paper. Accordingly, Ms Sadler wrote the following on a sheet of OCBC headed paper:
“I have received two sets of documents from Mr V Rattan. [signature] 17.10.14 16:55pm”
The OCBC headed paper states that OCBC is incorporated in Singapore and regulated by the Monetary Authority of Singapore (“MAS”). It also states that OCBC is regulated by the FCA and PRA.[59]Ms Sadler’s evidence is consistent with this account. She says that she does not recall Mr Rattan saying that the documents were for legal purposes, nor does Mr Rattan suggest that he did. Ms Sadler says that she handed both envelopes to OCBC London’s private banking team, which is consistent with the proposition that one was addressed to “Bank of Singapore”.[60]In addition to hand delivering these two envelopes, Mr Rattan also posted two sets of the documents by the Royal Mail’s recorded delivery service on the same day. In this case, Mr Rattan expressly states that one was addressed to “Bank of Singapore”, while the other was addressed to OCBC.

The Defendants’ applications

[61]On 18 November 2014 the Defendants issued and served an application notice seeking a declaration that IAPB had not been validly served and an order staying the claim against OCBC. It is worth noting that, between then and the hearing, the parties served no less than seven rounds of evidence. In paragraphs 34-36 of the first witness statement of Lucas Moore of the Defendants’ solicitors made on 18 November 2014 in support of the application, the Defendants contended that the Claimants had no claim against OCBC in any event. Nevertheless, at that stage no application was made to strike out the claim against OCBC. As I understand it, the Defendants were concerned lest such an application be treated as a submission to the jurisdiction. In the skeleton argument prepared by counsel for the Defendants for the hearing, it was again contended that the Claimants had no claim against OCBC in any event, but again no application to strike out was made. On the first day of the hearing, counsel for the Claimants sensibly accepted that an application by OCBC to strike out the claim against it without prejudice to the Defendants’ jurisdictional challenges would not amount to a submission to the jurisdiction. He did not suggest that the Claimants would be prejudiced if the application was heard at the same time as the jurisdictional challenges. Accordingly, the Defendants issued an application to strike out later the same day, and I heard argument on it.

The Claimants’ claims against IAPB

[62]The Claimants rely upon three types of cause of action against IAPB:(i) misrepresentation,(ii) negligence and(iii) statutory torts under the FSMA.

Misrepresentation and negligence

[63]The claim in misrepresentation is straightforward. The Claimants say that certain representations concerning the FLC bonds were made to them, they relied on those representations, the representations were false and they have suffered loss. In particular, the Claimants say that IAPB represented that the bonds were quasi-Russian sovereign debt, with the security which that implied, when that was not correct.[64]The claim in negligence is also straightforward. The Claimants say that IAPB owed them a duty of care when advising them in relation to the FLC bonds, IAPB acted in breach of that duty and they have suffered loss. In particular, the Claimants say that IAPB failed to carry about proper due diligence inquiries into the FLC bonds, failed properly to assess whether the FLC bonds were a suitable investment for the Claimants and failed properly to advise the Claimants as to the risks involved. The Particulars of Claim plead a parallel case in contract, but counsel for the Claimants told me that the Claimants did not rely on this. It would not add anything to their case if they did. (Furthermore, the limitation period in respect of the contractual claim is likely to be shorter than the limitation period in respect of the tortious claim.)[65]More importantly, the Claimants plead that the scope of the duty of care owed them by IAPB reflected statutory obligations arising under the FSMA and the rules made under section 138 thereof contained in the Conduct of Business SourceBook (“COBS”). This assumes that the FSMA is applicable to IAPB’s activities, which the Defendants dispute for the reasons explained below. Even if the FSMA and the COBS rules are applicable, however, I do not consider that this would add anything significant to the Claimants’ case on the scope of IAPB’s duty of care at common law.[66]The Defendants do not dispute that, so far as the Claimants’ claims for misrepresentation and negligence are concerned, the Particulars of Claim disclose claims which raise a serious issue to be tried with a real prospect of success. The position is different with regard to the statutory torts relied upon by the Claimants.

Statutory torts under the FSMA

[67]In the Particulars of Claim the Claimants plead claims for(i) loss under what is now section 138D of the FSMA (then section 150) and(ii) restitution under section 384 of the FSMA. Counsel for the Defendants submitted that these claims were manifestly unsustainable, and therefore did not raise a serious question to be tried.[68]In the version in force from 1 July 2005 to 7 June 2010, section 150(1) of the FSMA provided:
“A contravention by an authorised person of a rule is actionable at the suit of private person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty.”
[69]As counsel for the Defendants pointed out, this concerns contraventions of rules by authorised persons; but it is common ground that IAPB was not an authorised person. Accordingly, he submitted, it does not apply. Counsel for the Claimants had no answer to this submission, and I accept it.[70]In the version in force from 1 April 2007 to 30 June 2011, section 384(1) of the FSMA provided:
“The Authority may exercise the power in subsection (5) if it is satisfied that an authorised person … has contravened a relevant requirement, or been knowingly concerned in the contravention of such a requirement …”
[71]Counsel for the Defendants made the same submission in respect of this provision as in respect of section 150. In addition, he pointed out that the power to order restitution was conferred on the FCA and PRA, not on the Court. Again, counsel for the Claimants had no answer to these submissions, and I accept them.[72]Instead, counsel for the Claimants submitted that the Claimants had a claim under section 26 of FSMA. This provides: “(1) An agreement made by a person in the course of carrying on a regulated activity in contravention of the general prohibition is unenforceable against the other party. (2) The other party is entitled to recover—(a) any money or other property paid or transferred by him under the agreement; and(b) compensation for any loss sustained by him as a result of having parted with it. (3) ‘Agreement’ means an agreement— (a) made after this section comes into force; and (b) the making or performance of which constitutes, or is part of, the regulated activity in question. (4) This section does not apply if the regulated activity is accepting deposits.” (a) any money or other property paid or transferred by him under the agreement; and (b) compensation for any loss sustained by him as a result of having parted with it. (a) made after this section comes into force; and (b) the making or performance of which constitutes, or is part of, the regulated activity in question.[73]The general prohibition is contained in section 19, which provides: “(1) No person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is—(a) an authorised person; or(b) an exempt person. (2) The prohibition is referred to in this Act as the general prohibition. ” (a) an authorised person; or (b) an exempt person.[74]What amounts to a regulated activity is specified in section 22. The version of this which was in force from 25 February 2001 to 23 January 2013 provided, so far as relevant: “(1) An activity is a regulated activity for the purposes of this Act if it is an activity of a specified kind which is carried on by way of business and—(a) relates to an investment of a specified kind; or(b) in the case of an activity of a kind which is also specified for the purposes of this paragraph, is carried on in relation to property of any kind. … (5) ‘Specified’ means specified in an order made by the Treasury.” (a) relates to an investment of a specified kind; or (b) in the case of an activity of a kind which is also specified for the purposes of this paragraph, is carried on in relation to property of any kind.[75]Section 26 must be read together with section 28, which provides, so far as relevant:
“(1) This section applies to an agreement which is unenforceable because of section 26 or 27. (2) The amount of compensation recoverable as a result of that section is— (a) the amount agreed by the parties; or (b) on the application of either party, the amount determined by the court. (3) If the court is satisfied that it is just and equitable in the circumstances of the case, it may allow— (a) the agreement to be enforced; or (b) money and property paid or transferred under the agreement to be retained. (4) In considering whether to allow the agreement to be enforced or (as the case may be) the money or property paid or transferred under the agreement to be retained the court must— (a) if the case arises as a result of section 26, have regard to the issue mentioned in subsection (5); … (5) The issue is whether the person carrying on the regulated activity concerned reasonably believed that he was not contravening the general prohibition by making the agreement. … (7) If the person against whom the agreement is unenforceable— (a) elects not to perform the agreement, or (b) as a result of this section, recovers money paid or other property transferred by him under the agreement, he must repay any money and return any other property received by him under the agreement.” (a) the amount agreed by the parties; or (b) on the application of either party, the amount determined by the court. (a) the agreement to be enforced; or (b) money and property paid or transferred under the agreement to be retained. (a) if the case arises as a result of section 26, have regard to the issue mentioned in subsection (5); (a) elects not to perform the agreement, or (b) as a result of this section, recovers money paid or other property transferred by him under the agreement, he must repay any money and return any other property received by him under the agreement.”
[76]As counsel for the Defendants pointed out, there are a number of problems with this submission. First, no claim under section 26 is pleaded in the Particulars of Claim at present. Secondly, no application to amend the Particulars of Claim has been made. Indeed, no amendment has yet been formulated. Thirdly, if an application to amend were made, the question of limitation would arise. Fourthly, even if the Claimants succeeded in establishing that the contracts for the purchase of the FLC bonds were unenforceable under section 26, it would still be open to IAPB to contend that it should be permitted to retain the purchase price pursuant to section 28(3)(b) because it reasonably believed that it was not contravening the general prohibition. Moreover, if the Claimants contended and established that the contracts for opening of the Claimants’ accounts were unenforceable under section 26, it would still be open to IAPB to contend that the Claimants should give credit for any profits made on other investments. In these circumstances, I accept the submission of counsel for the Defendants that this proposed claim must be disregarded for present purposes.[77]Despite this, I shall set out the Defendants’ case on the merits of this proposed claim. The reason for doing this is that, as I shall explain, the Claimants rely upon their claims under the FSMA as an important plank of their case with respect to forum non conveniens.[78]The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (SI 2001/544) (“RAO”) sets out what are “specified activities” for the purposes of section 22 of the FSMA. They include “advising on investments” (article 53). The precise definition of this activity does not matter for present purposes, since the Defendants do not take any point on it. In particular, the Defendants do not contend that the mere fact that Mr Mehta was located in Singapore prevents his emails and telephone calls to the Claimants from falling within article 53 (as to which, see Financial Services Authority v Bayshore Nominees Ltd [2009] EWHC 285 (Ch), [2009] Lloyd’s Rep FC 398). Nor do the Defendants contend that the fact that the contractual relationship between the Claimants and IAPB is governed by Singapore law pursuant to clause A(30) of the Services Agreement has this effect.[79]The Defendants do rely upon clauses A(17) and C(4) of the Services Agreement as showing that IAPB did not provide the Claimants with investment advice at all. In my judgment, however, the Claimants have a good arguable case that, notwithstanding those clauses, IAPB, in the person of Mr Mehta, did in fact provide them with investment advice.[80]On that assumption, the Defendants rely upon article 72(5) of the RAO, which excludes from article 53 “the giving of advice by an overseas person as the result of a legitimate approach”.[81]“Overseas person” is defined in article 3(1) of the RAO as meaning a person who: “(a) carries on activities of the kind specified by any of articles 14, 21, 25, 37, 40, 45, 51, 52 and 53 or, so far as relevant to any of those articles, article 64 (or activities of a kind which would be so specified but for the exclusion in article 72); but (b) does not carry on any such activities, or offer to do so, from a permanent place of business maintained by him in the United Kingdom”.[82]The Defendants contend that IAPB fell within this definition at the relevant time. The Claimants have not produced any evidence that, in 2008, IAPB carried on activities of the kind specified from a permanent place of business in UK. Accordingly, the Defendants’ contention appears to be correct.[83]“Legitimate approach” is defined in article 72(7) of the RAO as meaning:
“(a) an approach made to the overseas person which has not been solicited by him in any way or has been solicited by him in a way which does not contravene section 21 of the Act; or (b) an approach made by or behalf of the overseas person in a way which does not contravene that section.”
[84]The Defendants contend that, in the case of the approaches which led to the opening of the Claimants’ accounts with IAPB, the Claimants made approaches to Mr Mehta which either were not solicited by him or did not contravene section 21 (article 72(7)(a)) and that, in the case of the approaches which led to the Claimants’ purchases of the FLC bonds, Mr Mehta made an approach to the Claimants which did not contravene section 21 (article 72(7)(b)).[85]In my view it is the latter approaches which matter, and not the former approaches, for the purposes of the Claimants’ claims. I shall nevertheless outline the Defendants’ case in relation to both.[86]So far as the approaches which led to the opening of the Claimants’ accounts with IAPB are concerned, the Defendants’ first contention is these were solicited because, although Mr Sethi gave Mr Mehta the Claimants’ names and telephone numbers and that Mr Mehta then telephoned the Claimants, in both cases the Claimants had expressed interest in IAPB’s services to Mr Sethi, and thus indirectly to Mr Mehta.[87]The Defendants’ second contention in relation to these approaches and their case in relation to the approaches which led to the Claimants’ purchases of the FLC bonds both involve showing that there was no contravention of section 21 of the FSMA. This provides, so far as relevant: “(1) A person (‘A’) must not, in the course of business, communicate an invitation or inducement to engage in investment activity. (2) But subsection (1) does not apply if—(a) A is an authorised person; or(b) the content of the communication is approved for the purposes of this section by an authorised person. (3) In the case of a communication originating outside the United Kingdom, subsection (1) applies only if the communication is capable of having an effect in the United Kingdom. … (5) The Treasury may by order specify circumstances (which may include compliance with financial promotion rules) in which subsection (1) does not apply.” (a) A is an authorised person; or (b) the content of the communication is approved for the purposes of this section by an authorised person.[88]The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (SI 2005/1529) (“FPO”) contains various exemptions to section 21, including the following: “One off non-real time communications and solicited real time communications 28.(1) The financial promotion restriction does not apply to a one off communication which is either a non-real time communication or a solicited real time communication. (2) If all the conditions set out in paragraph (3) are met in relation to a communication it is to be regarded as a one off communication. In any other case in which one or more of those conditions are met, that fact is to be taken into account in determining whether the communication is a one off communication (but a communication may still be regarded as a one off communication even if none of the conditions in paragraph (3) is met). (3) The conditions are that—(a) the communication is made only to one recipient or only to one group of recipients in the expectation that they would engage in any investment activity jointly;(b) the identity of the product or service to which the communication relates has been determined having regard to the particular circumstances of the recipient;(c) the communication is not part of an organised marketing campaign. One off unsolicited real time communications 28A.(1) The financial promotion restriction does not apply to an unsolicited real time communication if the conditions in paragraph (2) are met. (2) The conditions in this paragraph are that— (a) the communication is a one off communication; (b) the communicator believes on reasonable grounds that the recipient understands the risks associated with engaging in the investment activity to which the communication relates; (c) at the time that the communication is made, the communicator believes on reasonable grounds that the recipient would expect to be contacted by him in relation to the investment activity to which the communication relates. (3) Paragraphs (2) and (3) of article 28 apply in determining whether a communication is a one off communication for the purposes of this article as they apply for the purposes of article 28.” (a) the communication is made only to one recipient or only to one group of recipients in the expectation that they would engage in any investment activity jointly; (b) the identity of the product or service to which the communication relates has been determined having regard to the particular circumstances of the recipient; (c) the communication is not part of an organised marketing campaign. (a) the communication is a one off communication; (b) the communicator believes on reasonable grounds that the recipient understands the risks associated with engaging in the investment activity to which the communication relates; (c) at the time that the communication is made, the communicator believes on reasonable grounds that the recipient would expect to be contacted by him in relation to the investment activity to which the communication relates.[89]Article 7 of the FPO defines “real time communications”. Article 8 of the FPO specifies what amount to “solicited” and “unsolicited” real time communications. It is not necessary for present purposes to set these provisions out. Guidance as to what constitutes a one-off communication is contained within the FCA and PRA’s Perimeter Guidance Manual, Chapter 8, section 8.14. The Defendants particularly rely upon paragraph 8.4.19, which states:
“In the FSA’s view, a person such as an investment manager or adviser is not conducting an organised marketing campaign purely because he regularly provides a particular client with financial promotions as part of his service. Neither is such a person conducting an organised marketing campaign purely because he may have several clients whose personal circumstances and objectives may suggest that a particular investment opportunity may attract them. If he considers the individual circumstances and objectives of each client before determining that the opportunity would be suitable for that client the financial promotions should be capable of being one-off.”
[90]So far as the approaches which led to the opening of the Claimants’ accounts with IAPB are concerned, the Defendants contend that Mr Mehta’s telephone calls to the Claimants were one-off solicited real time communications within article 28 of the FPO for the same reasons as those discussed above. In the alternative, the Defendants contend that they were one-off unsolicited real time communications within article 28A of the FPO because Mr Mehta had reasonable grounds to believe(i) that the Claimants would expect to be contacted by him and(ii) that the Claimants understood the risks associated with opening accounts with IAPB. Accordingly, the Defendants contend that they were legitimate approaches within article 72(5) of the RAO.[91]As for the approaches which led to the Claimants’ purchases of the FLC bonds, the Defendants contend that Mr Mehta’s emails to the Claimants dated 18 June 2008 were one-off non-real time communications within article 28 of the FPO since they were sent to selected recipients, the product had been determined having regard to the particular circumstances of those recipients, and the emails were not part of an organised marketing campaign. In the case of the subsequent telephone calls from Mr Mehta to the Claimants, the Defendants contend that they were one-off unsolicited real time communications within article 28A of the FPO for similar reasons to those given above. Accordingly, the Defendants contend that both the emails and the telephone calls were legitimate approaches within article 72(5) of the RAO.[92]Although I have thought it right to set out the Defendants’ contentions in some detail, I do not consider that it is necessary for me to come to any conclusion as to whether or not they are well founded (or even whether the Claimants’ proposed claim under section 26 of the FSMA has a real prospect of success, or amounts to a good arguable case, notwithstanding these contentions). This is for two reasons. First, for the reasons given in paragraph 76 above, I have concluded that the Claimants’ proposed claim under section 26 must be disregarded for present purposes. Secondly, even if the Claimants’ proposed claim under section 26 was taken into account, and even if the Claimants had a good arguable case notwithstanding the Defendants’ contentions, I do not consider that it would assist the Claimants on the question of forum non conveniens for the reasons explained below.

Issue 1: Does this Court have jurisdiction under Article 15 of the Brussels I Regulation?

[93]The Claimants do not suggest that this Court has jurisdiction over the Defendants in respect of their claims under either Article 2 or Article 5 of Council Regulation 44/2001/EC of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Brussels I Regulation”). (It is common ground that Parliament and Council Regulation 1215/2012/EU of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) does not apply, because the relevant events occurred prior to the date from which it applies.) The Claimants contend, however, that the Court does have jurisdiction under Article 15 of the Brussels I Regulation. This provides: “1. In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if:(a) it is a contract for the sale of goods on instalment credit terms; or(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities. 2. Where a consumer enters into a contract with a party who is not domiciled in the Member State but has a branch, agency or other establishment in one of the Member States, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State. …” (a) it is a contract for the sale of goods on instalment credit terms; or (b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or (c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.[94]As counsel for the Defendants pointed out, however, Article 15 is expressly without prejudice to Article 4, which provides:
“1. If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 22 and 23, be determined by the law of that Member State. 2. As against such a defendant, any person domiciled in a Member State may, whatever his nationality, avail himself in that State of the rules of jurisdiction there in force, and in particular those specified in Annex I, in the same way as the nationals of that State.”
[95]Counsel for the Defendants submitted that, since neither IAPB nor OCBC is domiciled in a Member State, Article 4 applies, and therefore Article 15 does not. Counsel for the Claimants had no answer to this submission, and I accept it. Issue 2: Was the Claim Form validly served on IAPB? The law

Issue 2: Was the Claim Form validly served on IAPB?

[96]CPR r. 6.9(2) row 7 enables a claim form to be served on a company or corporation other than one registered in England and Wales at “[a]ny place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction”. This provision is the successor to a series of earlier provisions going back to RSC Order IX r. 8. Although the general rule is that the CPR are a new procedural code, and thus cases decided under the RSC are no longer authoritative, it is common ground that in this area earlier authorities remain highly persuasive. These authorities establish the following principles.[97]There is no requirement that the claim be connected to the activities or business carried on at the place in question: see Dicey, Morris and Collins, The Conflict of Laws (15th ed) at §11-117 and the cases cited in footnote 326, to which may be added Sea Assets Ltd v PT Garuda Indonesia [2001] BCC 294 at 299. The “place of business” must be a fixed and definite one: see Dicey at §11-118 and the cases cited in footnote 331. The activity must have been carried on for a sufficient time for it to be characterised as a business: see Dicey at §11-118. The business or activities done at the place do not need to be substantial as a proportion of the company’s business or activities, and a company may have a place of business even if the activities carried on there are incidental to the main objects of the company: see Aktiesselskabet Dampskib “Hercules” v Grand Trunk Pacific Railway Co [1912] 1 KB 222 and South India Shipping Corp Ltd v Export-Import Bank of Korea [1985] 1 WLR 585. Nor does the company need itself to own or lease the place of business: see Saccharin Corporation v Chemische Fabrik [1911] 2 KB 516.[98]As the editors of Dicey point out at §11-119 (footnote omitted):
“… in practice a real problem will normally only arise where the corporation's business is alleged to be carried on by a representative or agent, who is not an officer or employee of the corporation, and who may act as a representative or agent for other corporations in addition. Service may be effected on the representative or agent if the business is that of the corporation, and not solely the business of the representative or agent who acts for it in England. Where the representative or agent has power to make contracts on behalf of the foreign corporation and displays its name on his premises, there will be little difficulty in establishing that the place of business is that of the corporation”
[99]The leading authority on this question remains Adams v Cape Industries plc [1990] 1 Ch 433 at 530-531, in which the Court of Appeal held that the question whether the representative had been carrying on the foreign corporation's business or had been doing no more than carrying on his own business would necessitate an investigation of the functions he had been performing and all aspects of the relationship between him and the corporation, including the following:
“(a) whether or not the fixed place of business from which the representative operated was originally acquired for the purpose of enabling him to act on behalf of the corporation; (b) whether the corporation had directly reimbursed him for (i) the cost of his accommodation at the fixed place of business; (ii) the cost of his staff; (c) what other contribution, if any, the overseas corporation made to the financing of the business carried on by the representative; (d) whether the representative was remunerated by reference to transactions, e.g. by commission, or by fixed regular payments or in some other way; (e) what degree of control the corporation exercised over the running of the business conducted by the representative; (f) whether the representative reserved part of his accommodation or part of his staff for conducting business related to the corporation; (g) whether the representative displayed the corporation's name at his premises or on his stationery, and if so, whether he did so in such a way as to indicate that he was a representative of the corporation; (h) what business, if any, the representative transacted as principal exclusively on his own behalf; (i) whether the representative made contracts with customers or other third parties in the name of the corporation, or otherwise in such manner as to bind it; (j) if so, whether the representative required specific authority in advance before binding the corporation to contractual obligations.”
[100]In relation to factors (i) and (j), the Court held that it was wrong to say that the presence of the corporation could never be established unless the representative had authority to contract on behalf of the principal, but that the presence or absence of such authority was of great importance and was the principal test. See also Actavis Group hf v Eli Lilly and Company [2013] EWCA Civ 517, [2013] RPC 37 at [57].

Assessment

[101]The Claimants contend that, at the time of service of Claim Form, IAPB had a place where it carried on its activities, or a place of business, in England, namely OCBC London’s offices at The Rex Building. In support of this contention, counsel for the Claimants advanced three main submissions. The first was that, in reality, IAPB was carrying on a private banking business in the UK from OCBC London’s premises.[102]In support of this submission, counsel for the Claimants relied in particular on evidence given by Gautam Krishna, who says that he was employed by OCBC London from November 2011 to January 2015 as “a Director of Bank of Singapore (‘BoS’)”. Mr Krishna goes on to say that he saw himself as an employee of “BoS”, that the impression given to clients was that they were dealing with “BoS” and that “BoS” had a presence in the UK at OCBC London’s offices in The Rex Building.[103]The problem with this evidence is that Mr Krisha fails to distinguish between “Bank of Singapore” (i.e. OCBC London) and “Bank of Singapore Ltd” (i.e. IAPB). By way of illustration, Mr Krishna says in paragraph 7 of his witness statement that his position was stated on his business card and in his email signature to be “Director, Bank of Singapore” (which is not in dispute). As he acknowledges, however, his business card (and email standard text) also stated that “Bank of Singapore is the trading name of [OCBC’s] private banking business in the United Kingdom”. Mr Krishna goes on:
“The clear and deliberate message to clients was that I worked for BoS, and to all intents and purposes, it was BoS they were dealing with.”
If “BoS” is understood in the manner in which Mr Krishna himself defines the expression, that is to say, as meaning “Bank of Singapore”, this is entirely consistent with the Defendants’ case that the private banking business in the UK is carried on by OCBC London trading as Bank of Singapore.[104]It is fair to say that, in other parts of his statement, Mr Krishna appears to be intending to refer to IAPB when he uses the expression “BoS”, even though he has defined “BoS” to mean “Bank of Singapore” and even though he does not explicitly refer to “Bank of Singapore Ltd” anywhere in his statement. For example, Mr Krishna says in paragraph 8:
“All contract notes to London customers were issued in the name of BoS, as was all the general correspondence. Monthly statements for London clients were produced in the name of BoS and sent directly from Singapore.”
Even if one reads “BoS” here as meaning “Bank of Singapore Ltd” (i.e. IAPB), however, these statements are again perfectly consistent with the Defendants’ case that OCBC London acts as a referral intermediary which introduces clients (including clients in England) to IAPB (in Singapore) and markets IAPB’s products and services to such clients.[105]Elsewhere in his statement, Mr Krishna seems simply to conflate the two different corporate entities. Thus in paragraph 13 he says: “Employees from BoS’s Singapore office, especially senior management, regularly use the BoS offices on the third floor of the Rex Building. The bond research team which sits in Singapore directly sends out research clients and bankers in the BoS office in London. The London employees follow and disseminate this research.” “BoS’s Singapore office” is IAPB, while the “BoS” which has offices in The Rex Building is OCBC London.[106]Even when Mr Krishna does attempt to distinguish between the two entities, the result is simply to confuse the position. Thus the passage in paragraph 13 quoted above is followed by this:
“Credit policies are set by BoS, and OCBC has no involvement in the setting of these. If a client needs a credit facility then BoS draws up the documentation and gives its approval. The BoS facility letter is then sent out directly to clients. From the clients’ point of view, they are dealing with BoS, in London. ”
This appears to acknowledge that it is IAPB in Singapore which deals with credit, and not OCBC London. But in that case why should clients think that they are dealing with “BoS” (whatever that may mean in this context) in London?[107]Two further points should be noted about Mr Krishna’s evidence. First, it is common ground that IAPB was involved in his recruitment. As the Defendants contend, this is unsurprising given that(i) IAPB would be indirectly paying for his employment by OCBC London under the costs plus 10% arrangement and(ii) Mr Krishna would be referring clients to IAPB.[108]Secondly, on 5 December 2011 Mr Krishna signed a confirmation that he had received the “Summary of permitted and prohibited activities for OCBC Private Banking London” (see paragraph 53 above) and agreed to adhere to the contents. Mr Krishna suggests that he and his colleagues did not always adhere precisely to their instructions as to the way in which they answered the telephone (although the manner in which he says that they answered phone – “private banking” – does not assist the Claimants), but he does not suggest that they contravened their instructions in any other respect.[109]For the reasons given above, I do not accept that the evidence establishes that IAPB is carrying on a private banking business in the UK. On the contrary, the evidence shows that the Defendants are extremely careful to ensure that IAPB does not carry on business in the UK, where it is not regulated by the FCA and PRA, and to ensure that business in the UK is carried on by OCBC London, which is regulated by the FCA and PRA.[110]Counsel for the Claimants’ second main submission was that all the decisions with regard to IAPB’s private banking business were made in London. I can deal with this submission briefly. Again, the principal evidence relied on in support of it is Mr Krishna’s evidence, but this does not establish the proposition contended for. If anything, the tenor of Mr Krishna’s evidence is that the business is controlled from Singapore. Furthermore, the Defendants’ evidence is that this is indeed the case.[111]Counsel for the Claimants’ third main submission was that OCBC London was a representative of IAPB which had authority to contract on behalf of IAPB notwithstanding the provisions of the agreement dated 27 October 2010 which state that it has no such authority. In support of this submission, he relied in particular on two matters. The first is that OCBC London does not hold any money or investments for clients, rather the clients’ accounts are with IAPB. This does not show that OCBC London has authority to contract on behalf of IAPB, however. On the contrary, it is perfectly consistent with the Defendants’ case that OCBC London acts solely as a referral intermediary for IAPB.[112]The second matter he relied on is OCBC London’s use of the trading name Bank of Singapore. Again this does not show that OCBC London has authority to contract on behalf of IAPB, however. The trade mark position was not explored before me. But even if IAPB, rather than OCBC, owned the trade mark BANK OF SINGAPORE, the fact it licensed (or otherwise permitted) OCBC London to use the trade mark in the UK would not show that OCBC London had authority to contract on behalf of IAPB.[113]Nor does either of these matters show that IAPB carries on its activities, or has a place of business, in England. Accordingly, I conclude that the Claim Form was not validly served on IAPB in accordance with CPR rule 6.9(2).

Issue 3: Should service of the Claim Form on IAPB be dispensed with?

[114]CPR rule 6.16 provides:
“(1) The court may dispense with service of a claim form in exceptional circumstances. (2) An application for an order to dispense with service may be made at any time and – (a) must be supported by evidence; and (b) may be made without notice.” (a) must be supported by evidence; and (b) may be made without notice.”
[115]Counsel for the Claimants submitted in his skeleton argument that service of the Claim Form on IAPB should be dispensed with pursuant to this provision. He did not develop this contention in his oral submissions, but nor did he abandon it. I shall therefore deal with it briefly.[116]Many of the earlier authorities on what is now rule 6.16 were reviewed by Sir Anthony Clarke MR (as he then was) in Olafsson v Gissurarson (No 2) [2008] EWCA Civ 152, [2008] 1 WLR 2016 at [15]-[23]. It is clear from that review that the court’s power retrospectively to dispense with service of a claim form under this rule should only be exercised in truly exceptional cases. In my judgment this is not an exceptional case. The Claimants left it right to the end of the four month period to attempt service. Although they attempted to effect service in person, they were also serving Particulars of Claim which had been settled by counsel, and thus they will have had the opportunity of obtaining professional advice as to methods of service. The Claimants’ attempt at serving IAPB has not failed as a result of some mere technicality or oversight, but because of a failure by the Claimants to establish that the necessary pre-condition for service under rule 6.9(2) is satisfied. Retrospectively dispensing with service would enable the Claimants to avoid compliance with that rule, and thus enable the Claimants to establish jurisdiction of this Court over IAPB in circumstances not permitted by the CPR. Furthermore, it is not the case that the Claimants did not know where to find IAPB. Mr Rattan’s own evidence is that, when FLC defaulted on the bonds, his “first course of action” was to complain to two representatives of IAPB based in Hong Kong and Singapore respectively. (He also says that, on the advice of the Private Secretary to the President of the Republic of Singapore, he has complained to the MAS.) Accordingly, I decline to dispense with service of the Claim Form on IAPB.

Issue 4: Should the Claimants’ claim against OCBC be struck out?

[117]As I have explained above, the Claimants’ claims arise out of events which occurred well before IAPB was acquired by OCBC. The Claimants’ pleaded case against OCBC consists solely of an assertion in paragraph 4 of the Particulars of Claim that “[o]n acquisition OCBC assumed all material liabilities of [IAPB]”. No factual or legal basis for this assertion is pleaded. Nor was any factual or legal basis for it identified by counsel for the Claimants in his submissions. Instead, he submitted that the claim against OCBC should not be struck out because something might turn up on disclosure. This is blatant Micawberism. In my judgment the claim against OCBC should be struck out pursuant to CPR rule 3.4(2)(a) on the ground that the Particulars of Claim disclose no reasonable grounds for bringing the claim.

The remaining issues

[118]In case I am wrong in the conclusions I have reached thus far, I shall go on to consider the Defendants’ application for a stay on the assumptions that(i) IAPB has been validly served and(ii) the Particulars of Claim disclose claims against OCBC with a real of prospect of success. Before turning to consider the issue of forum non conveniens itself, it is convenient first to consider two other issues.

Issue 5: What is the law applicable to the Claimants’ tort claims?

[119]It is common ground that the law applicable to the Claimants’ tort claims is to be determined in accordance with sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995, and not European Parliament and Council Regulation 864/2007/EC of 31 July 2007 on the law applicable to non-contractual regulations (“the Rome II Regulation”).[120]Sections 11 and 12 of the 1995 Act provide as follows:
“Choice of applicable law: the general rule. 11.(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur. (2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being: (a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury; (b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and (c) in any other case, the law of the country in which the most significant element or elements of those events occurred. (3) In this section ‘personal injury’ includes disease or any impairment of physical or mental condition. Choice of applicable law: displacement of general rule. 12.(1) If it appears, in all the circumstances, from a comparison of: (a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and (b) the significance of any factors connecting the tort or delict with another country, that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country. (2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events.” (a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury; (b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and (c) in any other case, the law of the country in which the most significant element or elements of those events occurred. (a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and (b) the significance of any factors connecting the tort or delict with another country, that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country. (2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events.”
[121]Counsel for the Claimants submitted that the applicable law was English law. In support of this submission, he relied upon the decision of the Supreme Court in VTB Capital plc v Nutritek International Corp [2013] UKSC 5, [2013] 2 AC 337. In that case the claimant (“VTB”) was an English company which had entered into a facility agreement, and an accompanying interest rate swap agreement, governed by English law under which it lent some US$225 million to Russagroprom LLC (“RAP”) to fund the acquisition of six Russian dairy plants and three associated companies from the first defendant. RAP subsequently defaulted on the loan, and VTB recovered less than US$40 million from the security provided. VTB alleged that it had been induced to enter into the facility agreement by two fraudulent misrepresentations made by the first defendant for which the other defendants were jointly liable. The Supreme Court was unanimous in holding that the law applicable to VTB’s claims for fraudulent misrepresentation was English law. The relevant principles, and their application to the facts, were fully discussed by Lord Clarke of Stone-cum-Ebony at [198]-[210]. Lord Mance summarised the position at [7] as follows:
“Both the alleged misrepresentations on which VTB relies originated in Russia, but they reached VTB in London (very probably via VTB Moscow), and were relied upon by VTB there when it gave formal agreement to the Facility Agreement and interest rate swap there. Further, VTB sustained its loss by disbursing money in and from London, although, as will appear, it was in fact covered by VTB Moscow against any loss which it might otherwise make on the loan. In these circumstances, I address the question of the appropriate forum on the basis that, contrary to the conclusion of the judge and Court of Appeal, the law governing the alleged tort of deceit is English rather than Russian law. In summary, this is because England is the place where the events constituting the tort occurred, within the meaning of section 11(1) of the Private International Law (Miscellaneous Provisions) Act 1995 and the respondents have not shown under section 12 that the significance of the factors connecting the tort with Russia is such that it is substantially more appropriate for Russian rather than English law to apply to determine the issues arising in this case. ...”
[122]Counsel for the Defendants submitted that the applicable law was Singapore law. In support of this submission, he relied upon the decision of the Court of Appeal in Morin v Bonhams & Brooks Ltd [2003] EWCA Civ 1802, [2004] 1 Lloyd’s Rep 702. In that case, the defendant was a Monegasque company and the claimant was English. The defendant sent the claimant a catalogue for an auction which was to take place in Monaco. The catalogue included an inaccurate description of a particular vintage motor car. The claimant went to Monaco and bid successfully for the car. Once he had bought the car, the claimant discovered that it suffered from defects which were inconsistent with its description in the brochure. The claimant brought a claim against the defendant for negligent misstatement. Having regard to the facts that(a) the relevant representations were made to the claimant in England,(b) the initial reliance on those statements was made in England and(c) the specific transaction which caused the claimant to suffer his loss (namely his agreeing to purchase the car at the relevant auction) occurred in Monaco, the Court of Appeal concluded that Monegasque law was the applicable law of the tort. This case is one of the authorities referred to, with apparent approval, by Lord Clarke in his analysis in VTB v Nutritek.[123]I shall first consider the Claimants’ claim for misrepresentation. The elements of this tort are misrepresentation, reliance and loss. The representations originated in Singapore, but they were received by the Claimants in England. The Claimants’ initial reliance on the representations occurred in England when the Claimants made their decisions to invest in the FLC bonds, but the Claimants implemented those decisions in Singapore by giving instructions to IAPB to purchase FLC bonds on their behalf using funds held in their accounts with IAPB in Singapore. Thereafter the bonds were held by IAPB on their behalf in Singapore. As a result, the Claimants suffered loss in Singapore, initially when FLC defaulted on the interest payments and then when FLC defaulted on the capital repayments. I do not consider that the facts that the bonds were issued by a Russian corporation or that they were subject to English law are significant for these purposes. Applying section 11(2)(c) of the 1995 Act, I consider that the most significant elements of the tort occurred in Singapore. Counsel for the Claimants did not contend that, if I reached that conclusion, I should nevertheless conclude that the applicable law was English law applying section 12 of the 1995 Act. Given that the Claimants’ relationship with IAPB was governed by a contract which was subject to Singapore law, and given that it appears that the contracts of purchase of the FLC bonds will likewise have been subject to Singapore law, it is hard to see that section 12 would lead to the application of English law in any event.[124]Turning to the Claimants’ claim for negligence, the elements of this tort are duty, breach and loss. Given that the species of negligence relied on is negligent mis-statement, the analysis is much the same as for the misrepresentation claim. If anything, however, the case for applying Singapore law is even stronger here. This is because the Claimants expressly allege that IAPB was under a duty to conduct due diligence inquiries in respect of the FLC bonds before marketing them, but failed properly to do so. Accordingly, this breach occurred in Singapore. Applying section 11(2)(c) of the 1995 Act, I consider that the most significant elements of the tort occurred in Singapore. Again counsel for the Claimants did not contend that, if I reached that conclusion, I should nevertheless conclude that the applicable law was English law applying section 12 of the 1995 Act.

Issue 6: Is clause A(30) of the Services Agreement unenforceable?

[125]Having regard to my provisional factual conclusions, for present purposes the contracts between the Claimants and IAPB must be taken to have incorporated the Services Agreement, and in particular clause A(30) thereof. The Defendants rely upon clause A(30) as part of their case on forum non conveniens. The Claimants contend, however, that clause A(30) is unenforceable pursuant to Article 7(2) of the Convention on the Law Applicable to Contractual Obligations (“the Rome Convention”) and/or the Unfair Contract Terms Act 1977 (“UCTA”) and/or the Unfair Terms in Consumer Contracts Regulations 1999 (“UTCCR”) which implement Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.

The Rome Convention

[126]It is common ground that the Rome Convention applies to the contracts between the Claimants and IAPB, and not European Parliament and Council Regulation 593/2008/EC of 17 June 2008 on the law applicable to contractual obligations (“the Rome I Regulation”). Article 7(2) of the Rome Convention provides:
“Nothing in this Convention shall restrict the application of the rules of law of the forum in situations where they are mandatory irrespective of the law otherwise applicable to the contract.”
[127]Article 7(2) does not itself make any contractual provision unenforceable, it merely permits the application of mandatory rules of law of the forum. The only rules of English law relied on by counsel for the Claimants for the purpose of attacking clause A(30) were the UCTA and the UTCCR. (I should make it clear that counsel for the Claimants also contended that the relevant provisions of the FSMA were mandatory rules of English law within Article 7(2), but this is not relevant to the attack on clause A(30). Furthermore, as discussed in paragraph 78 above, the Defendants do not dispute that the FSMA is capable of applying at least to some extent to Mr Mehta’s communications with the Claimants notwithstanding clause A(30), although the Defendants contend that it does not in fact apply for other reasons.) UCTA[128]Section 27(2)(b) of the UCTA provides:
“(2) This Act has effect notwithstanding any contract term which applies or purports to apply the law of some country outside the United Kingdom, where (either or both)— … (b) in the making of the contract one of the parties dealt as consumer, and he was then habitually resident in the United Kingdom, and the essential steps necessary for the making of the contract were taken there, whether by him or by others on his behalf.” … (b) in the making of the contract one of the parties dealt as consumer, and he was then habitually resident in the United Kingdom, and the essential steps necessary for the making of the contract were taken there, whether by him or by others on his behalf.”
[129]Counsel for the Defendants did not dispute for these purposes that the Claimants were(i) consumers and(ii) habitually resident in the UK. He submitted that the essential steps necessary for the making of the contracts were taken in Singapore, because it was in Singapore that the Claimants’ applications to open accounts with IAPB were accepted, it was in Singapore that the accounts were opened and it was in Singapore that the Claimants’ instructions to purchase the FLC bonds were executed. I accept this submission. Accordingly, the UCTA does not apply to the contracts between the Claimants and IAPB.[130]Even if the UCTA did apply, why would it render clause A(30) unenforceable? Counsel for the Claimants did not advance any coherent argument on this question. As I understand it, however, the Claimants’ case is that clause A(30) is a term which(a) excludes or restricts IAPB’s liability for negligence and thus is subject to the requirement of reasonableness pursuant to section 2(2) of the UCTA and(b) excludes or restricts IAPB’s liability for misrepresentation and thus is subject to the requirement of reasonableness pursuant to section 3 of the Misrepresentation Act 1967 as substituted by section 8 of the UCTA. No basis has been identified by the Claimants for the assertion that clause A(30) excludes or restricts IAPB’s liability for either negligence or misrepresentation, however.[131]Even if the application of Singapore law did in some unidentified way exclude or restrict IAPB’s liability for either negligence or misrepresentation, why would that term not be fair and reasonable as required by section 11 of the UCTA? On the face of it, it is fair and reasonable to apply Singapore law to the contracts between the Claimants and IAPB, because(i) IAPB is incorporated in Singapore and carries on business in Singapore,(ii) the Claimants’ accounts were in Singapore,(iii) the Claimants’ instructions to purchase the FLC bonds were executed in Singapore and(iv) the Claimants knew all these facts. (It may also be noted that Singapore law is partly based on English law anyway.)[132]Counsel for the Claimants submitted that clause A(30) was unfair because it represented an attempt to deprive the Claimants of the protection of the FSMA. This submission involves the following propositions:(a) the contractual relationship between the Claimants and IAPB should be governed by English law and(b) the FSMA does not apply if the contractual relationship is governed by Singapore law. So far as proposition (a) is concerned, for the reasons given above, I do not accept that the contractual relationship between the Claimants and IAPB should be governed by English law. As for proposition (b), it is the Claimants’ own case that the FSMA applies even if the contractual relationship between the Claimants and IAPB is governed by Singapore law. Furthermore, as noted in paragraph 127 above, the Defendants do not dispute that the FSMA is capable of applying at least to some extent notwithstanding clause A(30).[133]I would add that, even if the choice of law provision in clause A(30) was objectionable, it would not necessarily follow that the jurisdictional provision was also objectionable.

UTCCR

[134]Counsel for the Defendants again did not dispute for these purposes that the Claimants were consumers. Regulation 9 of the UTCCR provides:
“These Regulations shall apply notwithstanding any contract term which applies or purports to apply the law of a non-Member State, if the contract has a close connection with the territory of the Member States.”
[135]Counsel for the Defendants submitted that the contracts between the Claimants and IAPB did not have a close connection with the territory of the Member States. I accept this submission. The contracts were contracts with a bank incorporated in Singapore to open accounts in Singapore for the purposes of making investments outside the European Union, and in particular investments in bonds issued by a Russian company which were held in the Claimants’ accounts in Singapore.[136]If the UTCCR do apply, counsel for the Claimants submitted that clause A(30) was unfair pursuant to regulation 5(1), which provides:
“A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.”
[137]Schedule 2 paragraph 1 to the UTCCR contains an indicative and non-exhaustive list of terms which may be regarded as unfair, including terms which have the object or effect of:
“(b) inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him; … (q) excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.”
[138]As counsel for the Claimants accepted, the term in question must both be contrary to good faith and lead to a significant imbalance. He submitted that clause A(30) was contrary to both requirements. In support of this submission, he relied upon Standard Bank London v Apostolakis (No 2) [2002] CLC 939.[139]In my judgment the present case is clearly distinguishable from Standard v Apostolakis. In that case, the offending term was a “potentially confusing” set of clauses which provided for the English courts to have exclusive jurisdiction over claims by the defendants, but permitted the claimant to sue the defendants in any jurisdiction where they were amenable to suit. These clauses had not been explained to, or even translated for, the defendants, who were consumers who did not speak English. Accordingly, David Steel J concluded that the clauses were contrary to good faith, because they had taken the defendants by surprise, and led to a significant imbalance, because the defendants were exposed to the cost and inconvenience of being forced to bring claims in this jurisdiction conducted in a language they did not speak.[140]By contrast, clause A(30) only confers non-exclusive jurisdiction on the Singapore courts. Furthermore, the Services Agreement is in English, which is spoken by the Claimants. Yet further, it is fairly simple and straightforward clause. If the Claimants had read it, there is no reason to think that they would have had any difficulty in understanding it. Nor has either of the Claimants given evidence that they would have refused to enter into contracts with IAPB if they had known about the jurisdiction clause. Given those circumstances and given that it does not prevent the Claimants from bringing claims in this jurisdiction, I do not consider that it is contrary to good faith or leads to a significant imbalance between the parties.[141]I would add that, even if the jurisdictional provision in clause A(30) was objectionable, it would not necessarily follow that the choice of law provision was also objectionable. As I understood his submissions, counsel for the Claimants again relied on the argument which I have considered in paragraph 132 above in this context. My conclusion is the same.

Issue 7: Forum non conveniens

[142]There is no dispute as to the applicable principles concerning stays on the ground of forum non conveniens, which were authoritatively stated by Lord Goff of Chieveley in SpiliadaMaritime Corp v Cansulex Ltd [1987] AC 460 as follows: i) The Court will only stay proceedings on this ground where it is satisfied that there is another available forum which is the appropriate forum, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice (476C). ii) If the Court is satisfied that there is another available forum which is prima facie the appropriate forum, the burden then shifts to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in England (476E). iii) If the claimant has founded jurisdiction against the defendant as of right, then the question is whether there is another available forum which is clearly or distinctly more appropriate than England (477D-E). iv) The Court must look for the forum with which the action has the most real and substantial connection. Connecting factors will include not only those affecting convenience or expense, but also the law governing the relevant transaction and the places where the parties respectively reside or carry on business (478A-B). v) If the Court concludes that there is another forum which prima facie is clearly more appropriate, it will ordinarily grant a stay unless justice requires that a stay should nevertheless not be granted. This will be the case if the claimant could not get justice in the foreign jurisdiction (478C-E). The fact that the claimant would have a “legitimate personal or juridical advantage” in England is not decisive, however (482B). In particular, the court should not, as a general rule, be deterred from granting a stay by the fact that the claimant will be deprived of advantages such as damages awarded on a higher scale, more complete disclosure or a more generous limitation period (482E-F).[143]In the present case there is no dispute that Singapore is an available forum. The Defendants contend that it is clearly and distinctly more appropriate than England. In support of this contention, the Defendants rely upon the following factors.[144]First, the applicable law. This has two aspects. The first is that, by virtue of clause A(30), the law governing the contracts between the Claimants and IAPB is Singapore law. Given that the Claimants do not rely upon their contractual claim against IAPB, however, this factor is neutral. The second aspect is that, as I have accepted, the law applicable to the Claimants’ claims for misrepresentation and negligence is Singapore law. In my view this is a pointer to Singapore as the forum, but not a particularly strong one (cf. the differing views on the strength of this factor expressed by the members of the Supreme Court in VTB v Nutritek).[145]Secondly, the jurisdiction provision in clause A(30). There is no dispute that this is broad enough to cover the Claimants’ tort claims. This again is a pointer to Singapore as the forum, but in my view not a particularly strong one given that it is non-exclusive (cf. E D & F Man Ship Ltd v Kvaerner Gibraltar Ltd [1996] 2 Lloyd’s Rep 206).[146]Thirdly, the fact that IAPB and OCBC are domiciled in Singapore. Although the Claimants are at least resident, if not domiciled, in England, counsel for the Defendants submitted that it was consistent with the scheme of the Brussels I Regulation that (unless a relevant exception applied, which it did not) the Defendants should be sued in the courts of their domicile. I agree that this factor favours Singapore as the forum, but in my view only weakly.[147]Fourthly, the availability of witnesses. Although the Claimants are in England, Mr Sethi is in India. It appears that all of the other material witnesses are in Singapore. In particular, Mr Mehta is a key witness who is in Singapore. Furthermore, as noted above, he is no longer employed by IAPB. If the proceedings are here, he could only be compelled to give evidence by means of letters rogatory. In my view this factor strongly favours Singapore.[148]Fifthly, the location of disclosure documents. Although the Claimants have a small number of documents here, it is clear that most of the key documents are in Singapore. Given that it appears that all the documents are in English and that high quality copies of the documents can be transmitted electronically to this county with ease, however, I consider that this factor only weakly favours Singapore.[149]Neither side argued that the place of the commission of the torts was a factor which favoured one jurisdiction over the other (cf. VTB v Nutritek).[150]Counsel for the Claimants did not suggest that the Claimants could not obtain justice in Singapore. In particular, he did not pursue a suggestion made in the Claimants’ evidence that any claim by them in Singapore would be stifled by a requirement to provide security for costs. Instead, he argued that the effect of the FSMA was a special circumstance which meant that justice required the Claimants’ claims to be tried in England. I do not accept this argument, for the following reasons.[151]First, for the reasons explained in paragraphs 67-76 above, I have concluded that the Claimants’ claims under section 150 and 384 of the FSMA do not raise a serious issue to be tried and that the Claimants’ proposed claim under section 26 of the FSMA must be disregarded.[152]Secondly, even if the Claimants have a good arguable case in respect of their proposed claim under section 26, I do not consider that it adds anything significant to the Claimants’ claims for misrepresentation and negligence. As discussed, those are straightforward claims with at least a real prospect of success. The claim under section 26 involves a technical and complicated dispute which offers no advantages to the Claimants even if they are successful. Accordingly, I do not consider that it is a significant factor with regard to choice of forum, and certainly not a trump card.[153]Thirdly, if and in so far as regulatory considerations are relevant to the question of forum, it seems to me that there is something to be said for a bank being sued in the jurisdiction where it is regulated. In the case of IAPB, that is Singapore.[154]Accordingly, I conclude that Singapore is clearly and distinctly the more appropriate forum for the trial of the Claimants’ claims. If it was necessary to do so, I would grant a stay of the proceedings.

Conclusion

[155]For the reasons given above, I conclude that the Claimants have not validly served the Claim Form on IAPB, and that service should not be dispensed with. I shall strike out the claim against OCBC. If it were necessary to do so, I would grant a stay of the proceedings against both Defendants on the ground of forum non conveniens.

Cited in 5 later judgments