(1) ATHENA CAPITAL FUND SICAV-FIS S.C.A. (2) ATHENA CAPITAL REAL ESTATE AND SPECIAL SITUATIONS FUND 1 (3) WRM CAPITAL ASSET MANAGEMENT S.A.R.L. (4) RAFFAELE MINCIONE v SECRETARIAT OF STATE FOR THE HOLY SEE [2021] EWHC 3166 (Comm)

"A governmental unit of The Holy See, which is the jurisdiction of His Holiness, the Pope, the Supreme Pontiff of the Roman Catholic Church. The Holy See exercises sovereign jurisdiction over the Vatican City State, and is recognized as foreign sovereign in international law, possessing full international legal personality and enjoying the same rights and obligations as States. The Secretariat of State is a core governmental unit of the Holy See and has three Sections: the Section for General Affairs, the Section for Relations with States and the Section for Diplomatic Staff of the Holy See. The Secretariat of State provides 'close assistance to the Supreme Pontiff in the exercise of his supreme office' and its functions include various administrative roles as well as responsibility for diplomatic relations with other States. The Secretariat of State is thus a department of the government of a foreign state, and therefore a 'State' within the meaning of s.14 of State Immunity Act 1978."

"(A) The Purchaser is instructed and funded by Holy See in connection with the acquisition of the Shares as described in this Framework Agreement and has full authority to negotiate this Framework Agreement and any other documentation required to effect the Transaction (as defined below)."

"(J) It is intended that the Seller and the Purchaser will enter into a binding sale and purchase agreement (' SPA ') in respect of the Shares for a consideration consisting of (a) a fixed cash consideration and (b) the transfer to the Seller of the GOF Shares, so that the Purchaser becomes the owner of 100% of the share capital of the Company (as well as, in turn, indirectly, the owner of 100% of the share capital of 60SA1 and 60SA). (K) The Holy See currently intends, given the positive progress and developments having occurred in respect of the management of GOF by the General Partner including, for example, the value creation arising from the Planning Permission, to consummate the Transaction, which will enable the Holy See to take control of the Property through the ownership of the Sale Group. The Property has become a strategic asset for The Holy See and retains significant upside potential. As a result, The Holy See wishes to exercise greater oversight of the Property through the Purchaser as its agent whom it is anticipated will carry out future strategic decisions relating to the development of the Property. The Holy See has determined that the Purchaser is suitably experienced and qualified for this purpose. … (N) The Seller, the Purchaser and the Holy See acknowledge and confirm the statements in the recitals above and it is the common understanding between them that such statements are the basis on which this Framework Agreement is being entered into and will be the basis on which the SPA will be entered into and completed. (O) The Seller, the Purchaser and the Holy See wish to record in this Framework Agreement their common understanding of the material terms of the SPA (all of which are, for the avoidance of doubt, acknowledged and understood by The Holy See)."

"1. MAIN TERMS OF THE TRANSACTION It is intended that the SPA will reflect the terms in this Clause 1. 1.1. Sale and Purchase of the Shares 1.l.1 The Seller will undertake to sell to the Purchaser, and the Purchaser will undertake to purchase from the Seller, the Shares in consideration for the Purchase Price on the Closing Date (as defined below) (the ' Transaction' ). 1.1.2. It is intended that the SPA and any ancillary documents thereto shall be entered into between the Seller and the Purchaser no later than 29 November 2018 (or such other date as may be agreed between the Seller and the Purchaser) and that completion of the sale of the Shares to the Purchaser shall take place immediately thereafter on the same day (the 'Closing Date'). 1.1.3 Without prejudice to the terms of this Framework Agreement, it is proposed that the Transaction is structured through the sale and purchase of the Shares on the terms of the SPA, as may be further assessed and agreed by the parties following the date of entry into this Framework Agreement as may be necessary or desirable for commercial or other reasons, provided that such structure is possible and practicable and in compliance with all applicable legal. regulatory, professional and internal policy requirements and restrictions and being understood, in any case, that the relevant agreements shall include and reflect the provisions contained herein."

"3.1. The Purchaser and The Holy See jointly and severally represent and warrant to the Seller that: a) (i) in the case of the Purchaser, it is duly organized and validly existing companies, operating under their respective applicable laws; they have all authorizations, licenses and approvals required for conducting their respective activities; they are not subject to any liquidation or insolvency procedures, to the extent applicable, nor have they applied for admission to such procedures, nor has any such application been filed or threatened in writing by any third party, and (ii) in the case of The Holy See, it is the duly organized entity which, operating according to the respective applicable laws, manages the general administrative operations of the sovereign State of Holy See; it has all authorizations, licenses and approvals required for conducting its activities; b) the entry into and performance by it of this Framework Agreement does not and will not (i) breach any provision of its articles of association, by-laws or equivalent constitutional documents, nor (ii) result in a breach of any laws or regulations applicable to it, or of any order, decree or judgment of any court or any governmental or regulatory authority; c) all consents, approvals, authorizations and other requirements provided for under any applicable law, which must be: obtained or satisfied for the execution and consummation of this Framework Agreement by it; have been or will be obtained and satisfied by the Closing Date; d) The Holy See is the beneficial owner of the GOF Shares free from any encumbrances. e) the Purchaser and/or The Holy See, have (and on the Closing Date shall have), sufficient funds and full unfettered authority to instruct the transfer of the GOF Shares in order to pay the Purchase Price due for the sale and purchase of the Shares as envisaged in Clause 1.2 ( Purchase Price and Closing ) and to make all other necessary payments of fees and expenses in connection with the Transaction and the consummation of this Framework Agreement and/or the Final Agreements; and f) the negotiations in connection with the Transaction and for the consummation of this Framework Agreement have been carried on by the Purchaser, on behalf of The Holy See, directly with the Seller and no agent, broker, investment bank, person acting on behalf of the Purchaser and/or the Holy See is or will be entitled to claim any fee vis-a-vis the Seller in connection with the Transaction. 3.2 Each of the Purchaser and the Holy See acknowledges that the Seller has entered into this Framework Agreement in reliance of the representations and warranties given by the Purchaser and the Holy See in this Clause 3."

"4.1. In consideration for the mutual representations and understanding between the Parties, the Holy See hereby further represents, acknowledges, confirms and agrees to the Seller (and shall be deemed to have represented, acknowledged, Confirmed and agreed at the Closing Date that): a) it has had the opportunity to carry out all relevant assessments and assumptions in respect of the Transaction and/or the Shares and/or the Sale Group and/or the Property; b) … c) it has engaged the Purchaser to perform the role as Purchaser in connection with the purchase of Shares in connection with the Transaction. 4.2. In consideration for the mutual representations and understanding between the Parties, the Holy See hereby further acknowledges, confirms and agrees, also for its controlled companies and/or entities (and shall be deemed to have acknowledged, confirmed and agreed at the Closing Date that), … that it does not and shall not have any claims of any kind, rights and causes of action, (relating to obligations, actions, damages, costs, expenses and compensations) whether known or unknown, direct or indirect, irrespective of their legal nature and whether past, present or future, against the Seller, the General Partner and any of their affiliates (including, for the avoidance of doubt, the Seller's managers and/or principals, as well as representatives and consultants), which are a result of or connected with any acts, omissions or events in respect of any matters relating to the Transaction or any part thereof, the Shares and/or the Sale Group and/or the Property and/or the GOF Shares and any investment and/or holding in GOF (including the GOF Shares) and in any other fund and/or entity managed by the General Partner, including without limitation as regards any past, present or future tax liabilities. 4.3. With effect from Closing, the Holy See hereby it [sic] irrevocably and unconditionally waives, and forever releases the Seller, the General Partner and any of their affiliates (including, for the avoidance of doubt, the General Partner's managers and/or principals, as well as representatives and consultants), from, any and all claims of any kind, rights and causes or actions, demands, obligations, actions, damages, costs, expenses and compensations whether known or unknown, direct or indirect, irrespective of their legal nature and whether past, present or future, against the Seller, the General Partner and any of their affiliates (including, for the avoidance of doubt, the Seller's managers and/or principals, as well as representatives and consultants), which are a result of or connected with any acts, omissions or events in the period up to the Closing Date in respect of any matters relating to the Transaction or any part thereof, the Shares and/or the Sale Group and/or the Property and/or the GOF Shares and any investment and/or holding in GOF (including the GOF Shares) and in any other fund and/or entity managed by the General Partner, including without limitation as regards any past, present or future tax liabilities, 4.4. Each of the Purchaser and the Holy See acknowledges that the Seller has entered into this Framework Agreement and will, upon exchange and completion of the Final Agreements, have entered into such Final Agreements in reliance of [sic] the representations, acknowledgements, confirmations and agreement by the Purchaser and the Holy See in this Clause 4. Notwithstanding anything to the contrary in the Final Agreements, this Clause 4 shall survive exchange of contracts on the Final Agreements."

"11.1. This Framework Agreement is governed by, and shall be construed in accordance with, the laws of England. 11.2. Any dispute arising in connection with this Framework Agreement shall be submitted to the competent courts of England."

"Mr Mincione had and has the benefit of all the Holy See's said acknowledgments, confirmations, agreement, waivers and releases as expressed in the Framework Agreement, alternatively Clauses 4.2 and 4.3 of the Framework Agreement, since he was and is a manager and/or principal and/or representative and/or consultant of RSS1. In the premises, Mr Mincione is entitled in his own right to enforce the said acknowledgments, confirmations, agreement, waivers and releases, alternatively Clauses 4.2 and 4.3 of the Framework Agreement, pursuant to Section 1 of Contracts (Rights of Third Parties) Act 1999 (the operation of which is not excluded)."

"1.1 The Seller is a duly authorised alternative investment fund incorporated as a société en commandite par actions , validly existing under Luxembourg law; 1.2 The Seller has all the powers, has been duly authorised and has carried out all the necessary corporate actions in connection with the execution of the Transaction Documents and the performance of the obligations provided therein. 1.3 The Seller has all consents, approvals, authorisations and other requirements provided for under any Applicable Law, which must be obtained or satisfied for the execution and consummation of the Transaction Documents. 1.4 The execution of the Transaction Documents and the performance of the obligations provided for therein do not and will not (i) breach any provision of the Seller's constitutional documents, nor (ii) result in a breach of any laws or regulations or judicial order, judgment, arbitral award, injunction order, writ or decree that are binding on or otherwise affecting the Seller or its assets, which may be prejudicial to the transfer of the Shares to the Buyer; 1.5 The Transaction Documents are valid and binding on the Seller and are enforceable vis-à-vis the Seller pursuant to their terms. 1.6 The Seller is solvent, is not subject to any pending insolvency proceedings, crisis or debt restructuring procedures, is not conducting any negotiations with its creditors (or certain classes of such creditors) for the restructuring of its debt, and, to its knowledge, information and belief, there are no facts or circumstances that may result in the Seller becoming insolvent or unable to duly fulfil its obligations or being admitted to bankruptcy proceeding, and no corporate action has been taken for the Seller's winding-up or liquidation, and no other actions have been taken that may negatively affect the possibility and ability of the Seller to carry out the transactions set out in this Agreement or any other Transaction Document."

"This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. 11.2 Each Party irrevocably agrees that the Courts of England shall have exclusive jurisdiction in relation to any dispute or claim arising out of or in connection with this Agreement or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims)."

"8.8.1 Subject to Clause 8.8.3, each of the Parties confirms that this Agreement together with the Agreed Form documents referred to in it, represents the entire understanding, and constitutes the whole agreement, in relation to its subject matter and supersedes any previous agreement between the Parties with respect thereto and, without prejudice to the generality of the foregoing, excludes any warranty, condition or other undertaking implied at law or by custom, usage or course of dealing. 8.8.2 Each Party (in the case of the Seller subject to Clause 8.8.3) confirms that (A) In entering into this Agreement it has not relied on any representation, warranty, assurance, covenant, indemnity, undertaking or commitment which is not expressly set out or referred to in this Agreement or the Agreed Form documents referred to in it; and (B) in any event, without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, the only rights or remedies in relation to any representation, warranty, assurance, covenant, indemnity, undertaking or commitment given or action taken in connection with this Agreement or with any of the Agreed Form documents referred to in it are those pursuant to this Agreement or such Agreed Form document, and for the avoidance of doubt and without limitation, no Party has any other right or remedy (whether by way of a claim for contribution or otherwise) in tort (including negligence) or for misrepresentation (whether negligent or otherwise, and whether made prior to, or in this Agreement). 8.8.3 The Buyer acknowledges that in entering into this Agreement the Seller has relied on the representations, acknowledgements, confirmations and statements by The Holy See [ie the Defendant] in para. 4 of the Framework Agreement between the Seller, the Buyer and The Holy See and dated 22 November 2018."

"The investigation arose after two reports containing allegations were submitted by the IOR (Institute for Religious Works) in July 2019 and by the Office of the General Auditor in August 2019; the latter, in particular, claimed that very serious crimes had been committed, including embezzlement and other types of fraud (Article 413 of the Criminal Code), misappropriation (Article 417 of the Criminal Code), corruption (Articles 171-174 of the Criminal Code) and aiding and abetting (Article 225 of the Criminal Code). The investigations carried out by the Office of the Promoter of Justice have focused on a real estate investment in London, set up for speculative and financial purposes, in part - at least as far as preliminary inquiries have ascertained - using sums of money belonging to the Secretariat of State and used by same to support the religious and charitable works of the Holy Father (known as Peter's Pence). … Based on what the investigation has uncovered so far, the damage caused to the assets of the Secretariat of State by way of the criminal conversion activities described above is enormous (currently quantifiable as no less than 300 million euro). This Office considers that each of the suspects is answerable for the following offences: Abuse of power (official misconduct) (Article 175 of the Criminal Code) Embezzlement (Article 168 of the Criminal Code) Corruption (Articles 171-174 of the Criminal Code) Money laundering, self-laundering and use of proceeds of criminal origin (Articles 421, 421b, 421c of the Criminal Code). Given that the relations between the different parties inside and outside the Secretariat of State existed for a considerable amount of time, by setting up complex legal instruments based in various countries, also 'black lists', and with the many criminal offences committed, a further offence is alleged of criminal association (see Article 248 of the Criminal Code) against the Holy See."

"Finally, we need to communicate that Athena Capital, REF [sic], WRM and Mincione have been forced to take legal action in the High Court of Justice, in the Business and Property Courts of England and Wales, Commercial Court (QBD), with the preliminary statement about to be notified to the defendant, the Secretariat of State. The aim of the action is to obtain a Declaratory Relief judgement which will achieve, among other things, the recognition and confirmation of the rights and obligations of each of the parties based on the Framework Agreement, the SPA, the Transfer Agreement, the Power of Attorney and, more generally, their validity and binding nature on the parties."

"23. I understand that, if the Secretariat is accepted as a civil party to the Vatican Proceedings (which is likely to take place during the hearing on 5 October or later), the Secretariat will have access to the same documents and exhibits filed by the OPJ and that will be filed by the defendants to the Vatican Proceedings. 24. These documents will include the Transaction Documents, together with correspondence relating to the Transaction. 25. Therefore, contrary to what was stated at paragraph 106 of Paniagua-1, the Secretariat should be able to give a precise and comprehensive account as to which documents remain in the hands of the OPJ and, where the Secretariat is no longer in possession of the same, download copies of the files or request electronic versions from the OPJ." ii) The reply evidence from Mr Paul Michael Walsh, a partner of Hill Dickson LLP, the Defendant's solicitors, (in his fourth witness statement) said: "12. After the hearing on 27 July, the Prosecution provided both the defence teams and the civil parties with some 29 GB of electronic documents. I am informed by Mons. Díaz Paniagua that additional documents are expected to be provided in the coming weeks. 13. However, and in any event, it remains the position that the Secretariat of State does not itself have effective access to all the evidence which may be relevant to defending the present claim, in particular, as regards key witnesses in this case. For instance, I am informed that Mr Tirabassi (who is accused in the Indictment as I will explain below) remains suspended and that he is not cooperating with the Vatican Court nor with the Secretariat of State."

"Pursuant to CPR 66.4(2), a request is made for service outside of the jurisdiction in accordance with Mr Justice Bryan's order of 17 June 2020 to be arranged by the Foreign and Commonwealth office under the State Immunity Act 1978."

"A request is made for permission to serve out of the jurisdiction under the State Immunity Act 1978. Pursuant to such request and pursuant to paragraph 1 of the Bryan J Order, the Claimants have permission to serve the Claim Form and Particulars of Claim and all other documents in these proceedings on the Defendant out of the jurisdiction under the State Immunity Act 1978 and pursuant to CPR 6.44."

"1. By reason of the fact only that the purported service of the Claim Form made pursuant to the Bryan J Order was contrary to the mandatory provisions of section 12(1) of the State Immunity Act 1978 (the "

"1. Declares, pursuant to CPR 11(1), that the Court has no jurisdiction over the Defendant or, alternatively, shall not exercise any jurisdiction it may have; and / or 2. Setting aside the claim form dated 16 June 2020 (the "

"As set out in the evidence in support of this application, the requirements to permit service out of the jurisdiction are not met. In relation to the relief claimed in the Particulars of Claim ("

"From the documentation I have reviewed and which I exhibit, it seems clear that a number of individuals (including former working members of the Secretariat of State) are under investigation, alongside Mr Mincione, for having allegedly committed criminal offences. These include Mgr. Alberto Perlasca, the former head of the Administrative office of the Secretariat of State, Mr. Fabrizio Tirabassi and Mr Enrico Crasso, a 'financial manager' and banker employed by Credit Suisse." and "

"During a recent press conference, Pope Francis was asked about the London investment. While confirming that he had personally authorized the October raids, he emphasised that proof of corrupt or illegal activity was 'not yet clear', before concluding that 'it passed what passed: a scandal.' 'They have done things that do not seem clean', the pope said. Last week, the Holy See press office confirmed that several investments and funds used by the Secretariat of State were under investigation. 'Lines of enquiry which may help clarify the position of the Holy See with respect to the aforementioned funds and any others, are currently being examined by the Vatican judiciary, in collaboration with the competent authorities,' a statement said. ii) An article from Governance, Risk & Compliance Monitor Worldwide dated 19 December 2019, including the following: "

"Pope Francis himself, on his return from Japan, had clearly said that 'there is corruption, you see it' while the Secretary of State, Paolo Parolin, had defined the whole affair as 'opaque'. Even if it is not certain that crimes can be proved. So much so that for this reason that a civil action, for damages, is not off the table." iv) The following report in the Financial Times of 8 June 2020: "

"Further, it is wrong to suggest that the Secretariat of State 'is not a civil party ( parte civile ) in any Vatican criminal proceedings as against Mr Mincione'. As noted above, the proceedings continue and the Secretariat of State's position as a civil party to those proceedings is not affected. I further understand from Monsignor Carlos Fernando Diaz Paniagua that Mr Mincione's lawyers in those proceedings have not opposed the Secretariat of State's inclusion as a civil party."

"… takes civil action incidental to the criminal proceedings indicated in the title of this document, pursuant to the terms of Article 54 of the Criminal Procedure Code, in the name of and on behalf of the Secretariat of State and the APSA, in accordance with the declaration of civil action incidental to criminal proceedings and related special mandate which she files and attaches to the present report (and which must be understood to be recorded in full in the present report), against the following accused parties: Mauro Carlino, Enrico Crasso, Tommaso Di Ruzza, Cecilia Marogna, Raffaele Mincione, Nicola Squillace, Fabrizio Tirabassi, Gianluigi Torzi, Giovanni Angelo Becciu, Logsic Humanitarne Dejavnosti, D.O.O. (in the person of the legal representative Cecilia Marogna), Prestige Family Office SA (in the person of the legal representative Enrico Crasso), Sogenel Capital Investment (in the person of the legal representative Enrico Crasso), Hp Finance LLC (in the person of the legal representative Enrico Crasso), in relation to the charges indicated in the declaration of civil action incidental to criminal proceedings attached to the present report, for the purpose of obtaining the full indemnity of all damages to assets and otherwise, incurred by the Secretariat of State and the APSA due to the conduct described in the charges indicated in the declaration of civil action incidental to criminal proceedings attached hereto."

"14. On 22 July 2021, both the Secretariat of State and the Administration of Patrimony of the Apostolic See (Amministrazione del Patrimonio della Sede Apostolica, the APSA), as the "injured parties" identified it the Indictment, formally joined the criminal proceedings. I am informed that APSA are separately represented and are participating in the trial with different counsel. They joined as civil parties for the purpose of obtaining a full indemnity in relation to all the damage incurred to assets and otherwise as a result of the alleged criminal conduct which was the subject of the Indictment. This was done pursuant to the terms of art. 54 of the Vatican Criminal Procedure Code (' CPC '). 15. I am advised by Mons. Díaz Paniagua that according to art. 2043 of the Vatican Civil Code "

"This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority ( acta iure imperii )."

"If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. The agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned."

"1. Between April 2002 and July 2003 the fifteenth Defendant (now known as Silver Waves Shops Limited, but then called Louis Duty Free Shops Limited: hereinafter 'LDFS') held the duty free, logo and gift shop concessions on five cruise ships owned and/or operated by companies in the Festival Group (Festival). LDFS needed employers' liability cover in respect of its employees who would staff the shops on the ships and, as part of the negotiation of a Retail Concession Agreement with Festival, Festival ultimately agreed to obtain insurance cover for LDFS on Festival's P & I cover with the Claimant (the Club). 2. The process for agreeing the inclusion of LDFS on the Club's cover was essentially left to Festival and its brokers PL Ferrari (Ferrari). The Club maintains that what was agreed between Ferrari and the Club's managers (Charles Taylor) on 8/9 May 2002 was that LDFS would be insured as a 'Joint Entrant' on the Festival covers with the Club. It is accepted for the purposes of the current application that there is a triable issue as to whether LDFS is bound by an Agreement concluded by Ferrari and Charles Taylor that it should be insured as a Joint Entrant, on the basis that there is a triable issue as to the actual authority of Festival and Ferrari to bind LDFS in respect of P & I cover. 3. The Club's rules provide for English jurisdiction by rule 32.1 which reads as follows: 'Disputes and differences The Member hereby submits to the jurisdiction of the High Court of Justice of England in respect of any action brought by the Club to recover any sums which the Club may consider to be due to it from a Member. Without prejudice to the foregoing the Club shall be entitled to commence and maintain any action to recover any sums which the Club may consider to be due to it from a Member in any jurisdiction.' 4. The Club claims that LDFS is liable to it in respect of premiums and calls for the 2002/03 and 2003/04 Club years in respect of ships entered with the Club by Festival. Since LDFS is a Cypriot company, service of the claim form was effected on it in Cyprus. The claim form contained a certificate stating that the English Court had power under Council Regulation 44/2001 of 22 December 2000 ('the Jurisdiction Regulation'), because LDFS was a party to an agreement conferring jurisdiction to which Article 23 of that Regulation applied. 5. Following service, LDFS issued an application seeking a declaration that the Court had no jurisdiction over it or alternatively that the Court should not exercise jurisdiction over it and that service of the claim form upon it should be set aside."

"LDFS maintained that the question of consensus had to be considered as between LDFS itself and the Club and not by reference to any dealings through its agents, although for these purposes it conceded that Ferrari and Festival were arguably its agents."

"53. The effect of LDFS' argument is to negate the concept of agency, at least in a large number of situations and thus to override principles of national law in relation to it. The whole basis of agency in English law and elsewhere is that, if the agent has actual or ostensible authority to conclude a contract on behalf of the principal, then the principal is bound. As a matter of principle and logic, if the agent specially agrees a jurisdiction clause, and it is within his actual or ostensible authority to do so, that ought to bind the principal. The agent stands in the shoes of the principal. If this was not recognised, a person dealing with a fully authorised agent would still have to enquire behind the agency, to ensure that there was a specific agreement by the principal to the jurisdiction clause. I consider that this cannot be right."

"Provided therefore that there is actual authority or ostensible authority on the part of the agent, the issue is whether or not the requirements of Article 23 are satisfied, as between the agent and the third party."

"(1) Where the claimant intends to serve a claim form on a defendant under rule 6.32 or 6.33, the claimant must— (a) file with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve the claim form out of the jurisdiction; and (b) serve a copy of that notice with the claim form. (2) Where the claimant fails to file with the claim form a copy of the notice referred to in paragraph (1)(a), the claim form may only be served— (a) once the claimant files the notice; or (b) if the court gives permission as relevant."

"The purpose of the notice which has to be provided under CPR 6.34 is probably twofold. First, it provides some sort of mechanism to police service of proceedings without permission under the Regulation so as to try to ensure that only proper cases make use of the opportunity to serve out of the jurisdiction without permission. It obviously requires and expects the claimant (or its solicitor) to consider the point, and to that extent is intended to act as a sort of filter. Second, it provides an indication to the recipient of the notice that the claimant considers that there are no equivalent proceedings on foot so that the recipient can decide whether to challenge service (and jurisdiction) if it disagrees (though the recipient is less likely to be interested in that because it will form its own view on the matter anyway)."

"None of that makes the state of mind of the person signing the notice (at least assuming that the belief is genuinely held) relevant to the propriety of service. As a matter of principle the conditions required by CPR 6.33 are either fulfilled or they are not. If there is a challenge it should be on the footing that the conditions are not fulfilled. Nothing else makes any real practical sense. If the conditions are not fulfilled then service ought not to be effected, and if necessary the English court will go on to decline jurisdiction (Article 29(3)) and, presumably, strike out the proceedings. That seems to me to be the real question, and it is hard to imagine how the state of mind of the maker will be of any interest to the defendant. It will make no difference whether the maker is conscientious and wrong or unconscientious and wrong — the result will be the same."

"It is very important in cases said to fall under the Regulation, where this court takes jurisdiction on the basis of a statement in a claim form pursuant (now) to CPR 6.33, and accordingly there is no requirement for the court's leave to serve the proceedings out of the jurisdiction, that solicitors issuing proceedings take particular care to ensure that they have a reasonable basis for their belief, and that the facts supporting it are stated in a transparent fashion in the claim form. First seisure under the Regulation may obviously have important consequences for both parties, and for proceedings in other jurisdictions. It is therefore vitally important: (a) that jurisdiction is not wrongly asserted without reasonable belief; and (b) the grounds are clearly stated so that a jurisdictional challenge can, if necessary, be speedily and easily made. This did not happen in the present case."

"Mr Davis argued that, by analogy, what matters here is not what BDI's patent attorneys identified as the ground for this court's jurisdiction on Form N510. What matters is whether this court has jurisdiction or not. I agree."

"23. It follows – Mr Davis did not dispute that this was the case – that the claim form has not been properly served. That being so, the claimant must seek relief from the sanction which would normally follow from a failure to correctly serve a claim form and I must apply the usual rules under CPR 3.9. In summary, I must consider whether the breach is trivial. Secondly, I must consider why the default occurred. Thirdly, I must consider all relevant circumstances in deciding whether relief should be granted. 24. It seems to me I cannot characterize this as a trivial breach, and therefore, I must apply the two other factors. 25. It's not possible for me to say why the failure it occurred. There are at least two possibilities. One, which Mr Johnson pressed on me, was that the claimants simply failed to send an electronic copy of Form N510 to the court. The other possibility, which I cannot discount, is that there was a mistake by someone at the court. Mr Davis submitted that it would be unfair for me to reach any kind of conclusion today, without at least giving the claimant the opportunity to deal with the matter by investigating the reasons why Form N510 was not filed. 26. What really mattered in practice was that Form 510 was served on the defendant, so they were in receipt of it. The failure to put it on to the court file, while being in breach of the rules, does not seem to me in all the circumstances to be a breach causing sufficient prejudice to Argent Scotland to warrant the consequence that BDI must start again. Therefore, I will retrospectively give BDI permission to file Form N510 out of time."

"52. The last point taken on behalf of Uttam on this aspect of the argument was that, where there is an exemption from a requirement of permission to serve out of the jurisdiction under rule 6.32 or rule 6.33, there is nevertheless a mandatory requirement under rule 6.34 to file with the claim form a notice (in form N510) containing a statement of the grounds on which the claimant is entitled to serve the claim form out of the jurisdiction. Because Cargill did not do so when serving Law Debenture in this case, it is said that permission is required under rule 6.34(2)(b). 53. The view which was taken by Cargill's solicitors at the time was that because service was being effected within the jurisdiction, pursuant to a contractual entitlement, there was no need to file a form N510 notice. As I have indicated, that view was correct. If, however, it had been incorrect, I would have had little hesitation in giving retrospective permission under rule 6.34(2)(b) for the claim form to have been served in that way without a form N510 notice. Insistence on such a notice would serve no useful purpose."

"26. It follows from this conclusion that in my view, the certification provided by the liquidator's solicitors in Form N510 was the wrong certification. No permission to serve out was required, but the relevant provision was CPR r 6.33(3) not CPR r 6.33(1). Here, however, I agree with the approach of Judge Hacon in BDI-BioEnergy International AG v Argent Energy Ltd (unreported) 19 December 2017, that the critical question is not whether the correct box has been completed on the form, but substantively whether the case is an appropriate one for service without permission or not (see at para 19). For the reasons already given, it seems to me it is, and that the defect in Form N510 is a minor, formal irregularity which causes no prejudice and which does not invalidate the service effected: see IR 2016, r 12.64."

"114 Ms Lane told me that there were three defects in the service of the claim form and the particulars of claim. 115 The first was that in breach of CPR 6.34(1)(b) the claim form was not served with Form N510, the form which contained the statement of the grounds on which the claimants were entitled to serve the claim form out of the jurisdiction. (Form N510 was filed pursuant to r.6.34(1)(a), but it was not served.) 116 The second was that although Ablynx pleaded reliance on the relevant licences to establish its exclusive licence, copies of them were not served with the particulars of claim in breach of PD63, para.4.1(2). 117 The third was that in breach of PD51U, para.5.1, Ablynx did not serve an initial disclosure list of documents with the claim form or particulars of claim and that the initial disclosure list was not served until five days after the date on which the claim form expired for service within the jurisdiction. 118 Mr Turner admitted the breaches. Ms Lane did not suggest that any of them had caused the defendants any prejudice. Neither did she direct my attention to any sanction under the rules from which Ablynx expressly requires relief pursuant to CPR 3.9. However, Ms Lane referred to the judgment of Edwards-Stuart J in Venulum Property Investments Ltd v Space Architecture Ltd [2013] EWHC 1242 (TCC) ; [2013] 4 Costs LR 596 . This was an application to extend time for service of the particulars of claim. Edwards-Stuart J ruled that the court's discretionary power to extend time should be exercised according to the framework set out in CPR 3.9. He refused to extend time, stating three factors that were of particular importance: (i) the claimant delayed for five years between the event complained of and service without any explanation for the delay; (ii) the claim was not a strong one; and (iii) the claimant was advancing a claim for bad faith pleaded in particularly vague terms such that the claimant did not merit indulgence. 119 There are no equivalent factors in the present case. Ablynx did not become aware of V565 until June 2017 and the delay of just over a year in starting the action can be explained by attention being focused on the litigation in the Netherlands. I have no basis on which I could say that Ablynx's claim is weak (or strong). In my view, none of the breaches of the rules was either serious or significant within the meaning given to those terms by the Court of Appeal in the context of the first stage of the assessment under CPR 3.9, see Denton v TH White Ltd [2014] EWCA Civ 906 ; [2014] 1 WLR 3926 . 120 I decline to set aside service of the claim form or particulars for breach of the rules."

"The procedure in the present case was by way of originating summons for a declaration that no offence had been committed. It is conceded that it is only in a most exceptional case that this procedure should be used where the plaintiff on the summons could be the subject, or is the subject of, criminal proceedings in respect of the matter raised on the summons."

"The respondents concede that the procedure adopted in the present case ought only to be adopted in very exceptional cases where it could be seen that it was just and convenient to deal with the particular problem. It was justified in the present case because there were threats to prosecute retailers and wholesalers who were really not responsible at all for the introduction of this scheme."

"Taylor Q.C. on the issue of jurisdiction. The Crown does not desire to pursue this matter since it has been abandoned before Your Lordships' House and therefore in the circumstances all that it is desired to state on this question on behalf of the Attorney-General is that there must be very few and rare cases in which the course taken in the present case could properly be adopted. It would be necessary that the facts should not be in dispute. On the question of discretion attention is drawn to the following passages in the authorities: London & Country Commercial Properties Investments Ltd. v. Attorney-General [1953] 1 W.L.R. 312, 316-317; Thames Launches Ltd. v. Trinity House Corporation (Deptford Strond) , [1961] Ch. 197, 204, 209 and Munnich v. Godstone Rural District Council [1966] 1 W.L.R. 427, 428, 434D et seq. 438."

"The justification for the Court of Appeal taking this unusual and unprecedented course — no case was cited to us where a civil court had after the commencement of a prosecution, granted a declaration that no offence had been committed — was said to be the length of time it would have taken for the matter to be determined in the criminal courts. I can well see the advantages of persons being able to obtain rulings on whether or not certain conduct on which they propose to embark will be criminal and it may be a defect in our present system that it does not provide for that. Here, I wish to emphasise, it was not a question whether future conduct would be permissible but whether acts done were criminal. It was said that the administration of justice would belie its name if civil courts refused to answer reasonable questions on whether certain conduct was or was not lawful. I do not agree. I think that the administration of justice would become chaotic if, after the start of a prosecution, declarations of innocence could be obtained from a civil court."

"My Lords, it is not necessary in this case to decide whether a declaration as to the criminality or otherwise of future conduct can ever properly be made by a civil court. In my opinion it would be a very exceptional case in which it would be right to do so. In my opinion it cannot be right to grant a declaration that an accused is innocent after a prosecution has started. While I would allow the appeal on this ground alone, I have felt it to be desirable to state my opinion on the questions on which the Court of Appeal and Donaldson J. pronounced."

"My Lords, the speech of my noble and learned friend, Viscount Dilhorne, contains a close and careful consideration of the many cases cited to this House on the subject of the modern law relating to lotteries. The reasons he gives and those developed by my noble and learned friend, Lord Lane, in a speech which I venture to describe as one of outstanding clarity and cogency, have convinced me that no advantage would accrue were I to carry out my original intention of contributing one of my own. I have therefore destroyed the draft upon which I had been engaged; In its place, let me say simply that, being in respectful agreement with my noble and learned friends, I concur in holding that this appeal should be allowed …"

"I am in entire agreement with my noble and learned friends that this is not a case in which the discretion of the court should have been exercised to make the declaration. By doing so the civil court, in my opinion, improperly intruded into the domain of the criminal court, notwithstanding that criminal proceedings had already been begun. We were not referred to any reported cases where such intrusion had occurred and in my opinion it ought not to be permitted except possibly in some very special circumstances which are not found here."

"Understandable though that action was, was it right, even assuming there was no illegal lottery, that a declaration in these circumstances should be granted? Although the appellant contested this aspect of the matter before Donaldson J and the Court of Appeal he did not do so before this House. It would not however be right in a matter of such great importance for your Lordships to let it pass without expressing a view. There is no doubt that there is jurisdiction to grant a declaration in these circumstances. Anyone is on principle entitled to apply to the court for a declaration as to their rights unless statutorily prohibited expressly or by necessary implication: Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260 and Ealing London Borough G Council v. Race Relations Board [1972] AC 342 . There was no such prohibition here; but was the learned judge right to exercise his discretion as he did, as the Court of Appeal thought he was?"

"Counsel appearing before your Lordships' House were unable to find any case in which a defendant in criminal proceedings already properly and not vexatiously instituted had applied for a declaration that the criminal proceedings were unfounded or based on a misapprehension as to the true meaning of the criminal statute. I do not find that dearth of authority surprising. It would be strange if a defendant to proper criminal proceedings were able to pre-empt those proceedings by application to a judge of the High Court whether sitting in the Commercial Court or elsewhere. What effect in law upon the criminal proceedings would any pronouncement from the High Court in these circumstances have? The criminal court would not be bound by the decision. In practical terms it would simply have the inevitable effect of prejudicing the criminal trial one way or the other. Where there are concurrent proceedings in different courts between parties who for practical purposes are the same in each, and the same issue will have to be determined in each, the court has jurisdiction to stay one set of proceedings if it is just and convenient to do so or if the circumstances are such that one set of proceedings is vexatious and an abuse of the process of the court. Where, however, criminal proceedings have been properly instituted and are not vexatious or an abuse of the process of the court it is not a proper exercise of the court's discretion to grant to the defendant in those proceedings a declaration that the facts to be alleged by the prosecution do not in law prove the offence charged."

"For these reasons, in my judgment, I should refuse the relief sought in this motion. I am, however, concerned that what is in fact a commercial dispute between two bodies of standing and good repute in their field should be determined with the minimum of duplication of effort and cost. I accept Thames & Hudson's submission that the Chancery proceedings are much more likely to determine that dispute once and for all. Even if the magistrate were to find that the fair dealing defence was not available to Thames & Hudson in respect of the Beckmann book it by no means follows that it will not be available to them in respect of their World of Art series. The evidence necessary to decide the Chancery proceedings will not be extensive and I was told that it ought to be possible to try the case within four or five working days. On the present state of the lists, and if the parties act with due diligence, it ought to be possible to obtain a trial date within six or nine months of today. It would obviously be unfortunate if this Court and the Magistrates' Court arrived at different conclusions as to whether the Beckmann book published the works of Max Beckmann in breach of copyright. I have concluded, on the facts before me, that the criminal proceedings cannot be categorised as vexatious or an abuse of process. That is a finding that does not bind the magistrate to whom the application to strike out the criminal proceedings can be renewed on the same or further evidence on the adjourned hearing of the summonses in August. I do not wish in any way to be seen to attempt to conduct the business of the Magistrate's Court. However, I place for consideration by the magistrate the possibility that he might permit the final disposal of the summonses to be adjourned pending the decision in the Chancery proceedings and provided that he is satisfied that those proceedings are being pursued to a hearing with due diligence. He may rest assured that this Court will use its powers to ensure that that takes place."

"It will readily be seen from those passages, first that the House of Lords found no jurisdictional bar to the grant of declaratory relief in these cases, and second that its strictures were targeted principally at the particular course adopted there, namely the accused's attempt by civil process to pre-empt criminal proceedings already started against them."

"1. The decision falls to be taken not as one of high principle but rather in the light of a number of relevant considerations. 2. The Court should adopt an essentially flexible approach to the exercise of its declaratory jurisdiction in this field. The only rigid rule is, following Imperial Tobacco , that once criminal proceedings have begun, the civil courts should not intervene. 3. That said, other things being equal, criminal disputes, even upon pure issues of law, are best decided: (a) in criminal courts, and (b) between the parties most directly affected by their outcome. The civil courts should, moreover, be the warier of embarking on this jurisdiction: (i) otherwise than at the suit of the Attorney General (not least where he has refused his fiat for relator proceedings), (ii) when it involves existing, and not merely prospective future, conduct, (iii) when what is sought is a declaration of criminality rather than of non-criminality, and (iv) (not this case) when the facts are in issue. 4. The availability of an alternative remedy is always a relevant, and may be a decisive, factor. The Court should consider the various advantages and disadvantages of the respective remedies. …"

"78. Overall I conclude that the interesting argument which I have heard on the authorities has been in danger of over-refining an exercise which is essentially discretionary. The overarching issues relevant to this case which can be taken away from the authorities and which I apply when coming to consider the individual declarations sought are as follows: i) The touchstone is utility; ii) The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose; iii) The prime purpose is to do justice in the particular case: see TQ Delta, LLC v ZyXEL Communications UK Limited, ZyXEL Communications A/S [2019] EWCA Civ 1277 at [37]. 'Justice' includes justice not only to the claimant, but also to the defendant: see Fujifilm Kyowa Kirin Biologics Co., Ltd. v Abb Vie Biotechnology Limited [2017] EWCA Civ 1 ; [2018] Bus LR 228 ('Fujifilm') at [60]; iv) The Court must consider whether the grant of declaratory relief is the most effective way of resolving the issues raised: see Rolls Royce v Unite the Union [2010] 1 WLR 318 at [120]. In answering that question, the Court should consider what other options are available to resolve the issue; v) This emphasis on doing justice in the particular case is reflected in the limitations which are generally applied. Thus: a) The court will not entertain purely hypothetical questions. It will not pronounce upon legal situations which may arise, but generally upon those which have arisen: Zamir & Woolf at 4-036 & Regina (Al Rawi) v Sec State Foreign & Commonwealth Affairs [2008] QB 289 at 344. b) There must in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them: Rolls Royce at [120]. c) If the issue in dispute is not based on concrete facts the issue can still be treated as hypothetical. This can be characterised as 'the missing element which makes a case hypothetical': see Zamir & Woolf at 4-59. vi) Factors such as absence of positive evidence of utility and absence of concrete facts to ground the declarations may not be determinative; Zamir and Woolf note that the latter 'can take different forms and can be lacking to differing degrees'. However, where there is such a lack in whole or in part the court will wish to be particularly alert to the dangers of producing something which is not only not [f]utile, but may create confusion."

"Although Sabena has every reason to reserve its position as to whether it intends to make a claim against Dowty, it is doubtful if it will ever have cause to do so. The real dispute is as to who was responsible for the faulty design of the landing gear. This is now primarily a dispute between Dowty, Airbus and possibly BAA."

"This is not however a situation where the question of the joinder of Sabena can be considered in isolation from the question of jurisdiction. Jurisdiction is governed by the Convention and, if the Convention required Sabena to be sued now within this jurisdiction or if this was consistent with the policy of the Convention, then this would be a compelling circumstance against exercising discretion in a way which I have indicated. In fact there is nothing in the Convention which requires Dowty to bring proceedings in England and, if proceedings are brought, England does not have exclusive jurisdiction."

"it is clear that the Claimants have consistently fallen well short of the duty imposed upon them to (a) draw to the Court's attention the nature and extent of the criminal allegations against Mr Mincione and their interplay with the relief sought in the PoC; (b) produce the material evidence available to them (e.g., the Letter Rogatory to Switzerland) in a manner and with the requisite level of assistance which would have enabled the Court to weigh the question of grant fully; (c) failed altogether to draw the Court's attention to the Swiss proceedings and the fact of Mr Mincione's assets being frozen; and (d) omitted to address any basis for or against the 'useful purpose' and 'solid practical benefit' which might be achieved from allowing the claims for declaratory relief to proceed."

"34. First, at present, the Holy See is conducting prosecutorial investigations within the Holy See in relation to the Secretariat of State's investment policies and involvement with the Transaction. This appears to include specifically Mr Mincione who had been invited to attend an interview within the Vatican but who in the event will not. I also refer to the fact, as referenced in the Particulars of Claim, that the Holy See has made a request for judicial assistance to the Swiss authorities. However, all these are matters which relate to possibly contemplated criminal proceedings against Mr Mincione. I do not see therefore that they have any relevance on the question of permission to serve this Action out of the jurisdiction. I do not see that those matters override the jurisdiction provisions in the Framework Agreement and the SPA. … 39. Fifthly, the Holy See might argue that there is no dispute and so no need for the English Court to grant declaratory relief. But it seems plain to me from the actions taken by the Holy See in the said criminal context and to which I have referred above, as well as to the plethora of media reports in relation to which I infer that their sources or one of their sources must be an individual or individuals with authority within the Holy See (otherwise the Holy See would surely have denied the stories) that there are the disputes which are identified in the Particulars of Claim."