China Triumph International Engineering Co Ltd v WeLink Global Limited & Ors [2026] EWHC 1872 (Comm)

[2026] EWHC 1872 (Comm)Case No CL-2025-000158
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 22 July 2026
Before
Paul Stanley KC(sitting as a Deputy High Court Judge)
Between
China Triumph International Engineering Co LtdClaimant(1) WeLink Global LimitedDefendants(2) WeLink Investments Holdings (Ireland) LimitedDefendant(3) WeLink Investment (Ireland) LimitedDefendant(4) WeLink Energy (UK) LimitedDefendant(5) WeLink Energy Investments (UK) LimitedDefendant
Duncan McCombe (instructed by Lewis Silkin LLP) for ClaimantAndrew Barns-Graham (instructed by Ignition Law) for Defendants and Proposed Additional DefendantsHearing Hearing date: 14 July 2026
Approved Judgment

Paul Stanley KC :

[1]The claimant (“CTIEC”) is a Chinese engineering company. The defendants are companies within the WeLink Group. WeLink’s business involves developing housing schemes and power projects. For many years, CTIEC and WeLink had a fruitful commercial relationship. Group companies contracted with CTIEC to participate in construction schemes. Debts built up. By 2021, projects were in financial difficulty. In the course, at the latest, of 2022 the parties fell out, apparently irreparably.[2]The specific claim in this case is a claim by CTIEC to recover debts which CTIEC says are due to it, totalling around £17.2m. The debts were created because of three UK solar farm projects. They originated with various companies within WeLink but were, according to the claim, assumed by the first defendant under three loan agreements in April 2019. CTIEC claims that all the companies in the WeLink group, including the second to fifth defendants, guaranteed those loans.[3]The application before me is about proposed amendments to the defence. These fall into two categories. First, there are some amendments of a familiar sort. They make changes to the allegations that the existing defendants wish to advance by way of defence or (in one case) by counterclaim. The question is simply whether I should, as a matter of discretion, permit them under CPR 17.1(2)(b). I shall call these the “existing defendants’ amendments”. Second, more controversially, the defendants want to join two other companies from the WeLink group—Project Greentown Ltd (“Green Town”) and Orcus SL (“Orcus”) as defendants. This is not because CTIEC is seeking relief against them, but so that they can make counterclaims against CTIEC. I shall call those the “additional counterclaims”. They raise issues about when the court can and should join someone as a defendant in order to enable that person to make a counterclaim.[4]Applying well-established principles, I shall largely (but not entirely) permit the existing defendants’ amendments. Although I consider that I would have power to do so, I decline to order joinder of the additional defendants to pursue their proposed counterclaims, because I would only do so if their joinder is “desirable”, and it is not.

Procedural history

[5]The claim form was issued on 10 April 2025. Particulars of claim were filed on 21 July 2025. The main claim against the first defendant relies on deeds of novation and loan agreements of 19 April 2019. They restructured debts originally owed by WeLink SPVs which were involved in three solar farm projects, so that the debts were assumed by the first defendant. The main claim against the second to fifth defendants is that Mr Barry O’Neill, WeLink’s CEO, had signed various emails on behalf of “the WeLink Group”, and that the effect of those emails was to commit each and every company within the group, including the second to fifth defendants, to guarantee payment of the debts under the loan agreements. There is a fall-back argument against some or all of the second to fifth defendants under what are said to be the principles established by Shamia v Joory [1958] QB 448 (CA), or in restitution for mistake. But nothing turns on those arguments.[6]The defence was filed on 31 October 2025. It accepted that the original debts arising from the three solar farm projects had been created. But it did not accept that the terms were set out in the deeds of novation and the loan agreements. Instead, the defendants said, the position in 2019 had been reflected in what were described as “rollover loans”. Under these, it was said, the debt relating to one of the projects—Raventhorpe—had been novated so that it was a debt owed by the fourth defendant, but with an agreement that it was to be subordinated, and that it would be repaid only upon completion of a project in Portugal, known as Solara4. The other two debts—relating to projects in Swindon and Shotwick—were taken on by the fifth defendant. They were also subordinated, and would be repaid only upon completion of a project in Spain, known as Puerto Royal.[7]The defence went on to allege that the relationship between CTIEC and WeLink had frayed during 2020, and that attempts to establish a joint venture had (despite letters of intent) not progressed. It was said that by late 2021, WeLink urgently needed to reach agreement with CTIEC to progress ongoing projects and repay debts. That had, it was alleged, resulted in certain agreements being made in December 2021. The catalyst was a refinancing with other lenders, which was to generate €30m. That had led, the defendants said, to an oral agreement reached in a telephone call between a director of CTIEC, Mr He, and WeLink’s CEO, Mr O’Neill on 18 December 2021 which was then “recorded in writing and supplemented” in a written memorandum of understanding which was executed on 22 or 23 December 2021 (the “December Memorandum”). Together those were labelled “the December 2021 Deal”.[8]The defence went on to allege that CTIEC had failed to perform its obligations under the December 2021 Deal, and that it was as a result of that it had not been possible to “fulfil the repayment plan” which had (it was said) been agreed as part of that “deal”. The defendants relied on a number of allegations, including allegations of various types of estoppel or collateral contract. No counterclaim was advanced.[9]The proposed amendments began to emerge shortly before the first case management conference, before Butcher J, in April 2026, partly in response to an interim payment application made by CTIEC. They have gone through a number of changes in the ensuing months. At the hearing, the parties focused on the most recent version, and I shall refer to that. Where I refer to paragraphs, it is to the paragraphs of this document.[10]There are two application notices. The first was issued only by the existing defendants (though it contemplated the joinder of Green Town and Orcus). The second added Green Town and Orcus as applicants. No permission was given to Green Town or Orcus to serve that application out of the jurisdiction.[11]There are two other relevant procedural matters of relevance. First, although it has applied for an interim payment, CTIEC has not made any application to strike out the existing defence, or any part of it. Second, CTIEC has brought separate proceedings against Mr O’Neill, personally, under a guarantee. I was told that one issue in that case is whether the December Memorandum is binding. That issue is the subject of an application to strike out parts of Mr O’Neill’s defence, or for summary judgment. That application has not yet been heard.

Principles: the existing defendants’ amendments

[12]I need not attempt a comprehensive restatement of the principles that govern whether to permit amendments. They were, subject to two specific points, common ground.[13]The power to permit or refuse permission to amend is discretionary. Since the circumstances in which permission is sought are infinitely varied, attempts to reduce them to inflexible rules are generally unhelpful. As Carr J put it in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 at [38]: “the overriding objective is one of the greatest importance. Applications always involve the court striking a balance between the injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted”.[14]A number of authoritative dicta have accumulated around the idea that an amendment will sometimes be refused if it is “late”; and that the later the amendment is put forward, the more difficult it will be to obtain permission. This provoked, before me, discussion about whether there was a “heavy burden” to justify “late” or only “very late” amendments, and what might make an amendment “very late”. This is largely a sterile debate, which risks missing the point of the sensible observations to be found in many cases. The dicta originated as a way of exorcising the ghost of the common assumption—which held good before the Civil Procedure Rules—that amendments should be approached indulgently, and generally allowed unless they caused prejudice to the other party that could not be compensated in costs. That was an important correction. But lateness is always relative, and in some sense any amendment that is not made at the earliest possible moment is “late” (later, anyway, than it might have been). The power is always a discretionary one depending on a multitude of case-specific factors. It does little to advance analysis to try to draw hard lines (between the “late” and the “very late”). Nor do adjectives about the weight of the “burden” really help. What matters—the cases are clear about this—is how prejudicial or disruptive an amendment will be, the reasons for it, its effect on the case, and the balance of fairness. This must be assessed in detail, not by wrangling over adjectives.[15]The second point that was controversial before me concerned the significance of the merits of any amendment. The court will not generally allow an amendment to be made in order to advance a case that has no realistic prospect of succeeding: see, e.g., Elite Property Holdings Ltd v Barclays Bank plc [2019] EWCA Civ 204 [40]–[42] (Asplin LJ); Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33 at [18] (Popplewell LJ); CNM Estates (Tolworth Tower) Ltd v Carvill Briggs [2023] EWCA Civ 490, [2023] 1 WLR 4335 at [77] (Sir Geoffrey Vos MR); Quah Su-Ling at [36]; Amersi v Leslie [2023] EWHC 1368, at [140] (Nicklin J). An amendment need not be perfectly drafted, and there may be cases where it can be allowed even though the responding party may have grounds to request further information. But it must generally present a case that is legally coherent and arguable—one that there is a realistic prospect the court at trial might accept. And it must generally allege or be based on facts for which there is at least a coherently plausible evidential basis. But all the usual caveats that apply to summary judgment applications are equally relevant here: an amendment application is not the occasion for a “mini-trial”; an arguable legal case is not the same thing as one that is likely to succeed; the court treads warily in reaching legal conclusions on an incomplete factual record, especially in areas where the law is developing; and the court must be alive not only to the evidence that is available but to what is realistically likely to be available at trial.[16]For the defendants, Mr Barns-Graham submitted that the merits test can be put to one side if the amendments do not advance a new case, but simply “particularise” an existing one. He relied on Scott v Singh [2020] EWHC 1714 (Comm) at [19] (HHJ Eyre KC) and Gerko v Seal [2023] EWHC 63 (KB) (HHJ Parfitt) at [190]. I think this is to read remarks which expressed obvious common sense about how a discretion should be approached as if they introduced a categorical rule. These cases point out that the merits-based assessment of amendments which introduce large swathes of new factual or legal issues into a case will, rationally, be more intensive than if an amendment adds little. That is because decisions to permit or refuse amendment always have to be carried out with an eye to the overriding objective. An amendment which will transform the issues will naturally attract more intensive scrutiny. Attention should always be on how the amendment, as an amendment, alters the landscape. A merely typographical change to a paragraph alleging, say, the existence of an implied term—I mean one that makes no change of substance—should not invite inquiry into whether the legal arguments for implying the term are strong, so as to become, by a side-wind, an application to strike out the original allegation. The important question is not whether the change is to many words or a few, or can be described as “particularisation” or something else. A change of one word may be transformative. The briefest particular may open vast new fields for factual inquiry. What matters is to understand how far, in substance, the amendment will change the case, and the implications of that change.

The existing defendants’ amendments

[17]I do not agree that the defendants’ amendments are to any significant degree “late”, much less “very late”, or that their justification involves any “heavy burden”. They are proposed at an early stage (before disclosure or directions for trial) of a complex case, and will have no material adverse impact on trial preparation.[18]Uncontested amendments. The amendments to paragraphs 1, 2, 13, 14(c), 18, 24, 29, 30, 31(f), 34, 37, 38(d), 40, 41, 50, 51(c), 54, 59, 69 (in part), 70, and 71, and to headings A and C were not opposed. I shall therefore permit them.[19]Paragraph 17(b). I see no sensible objection to the amendment to paragraph 17(b), which deletes the word “owed” after “debt”. The debate about the word is, on both sides, ritualistic. The inclusion or exclusion of “owed” makes no difference either way, since a debt is by definition something owed (whether or not it is presently payable is a different question). I shall allow the amendment.[20]Paragraph 17(g). By the end of the hearing, the defendants accepted that amendments proposed to paragraph 17(g) to introduce implied terms were unnecessary, since they added nothing to allegations already made earlier in paragraph 17. I need not therefore grant permission for them, and will not do so.[21]Paragraph 30. In paragraph 30, the defendants wish to include a cross-reference to urgency and the commercial circumstances referred to in paragraph 21. They say that this is relevant to the question whether the December Memorandum (or any aspect of what they plead as the December 2021 Deal) was legally binding. I see no substantial argument against these amendments which do not add any area of factual inquiry, but clarify the defendants’ case. I shall permit them.[22]Paragraph 31(c). In paragraph 31, the defendants wished to include the following, which is in substance almost entirely a new allegation:
“c. all debt repayment obligations owed by WElink companies to [CTIEC] (including those relating to the Projects) were agreed to be contingent on [CTIEC’s] performance of its obligations under the December 2021 Deal, including the return of the €13m sum, completion of Solara4 by 31 March 2022, engaging with and implementing the business plan, and the construction of Heartlands, including the distributor road. This term was expressly agreed and reflected the parties’ shared understanding, as evidence by the fact that it was a premise of the business plan that [CTIEC’s] performance of its obligations was a prerequisite to WElink’s ability to make repayments. Alternatively, the term is to be implied because: (i) it is necessary to give the December 2021 Deal business efficacy and/or was so obvious as to go without saying between the parties (including because it was a premise of the business plan for the reasons given in paragraph 6 of [the defendants’] response date 9 January 2026 to [CTIEC’s] Request for Further Information dated 18 November 2025, which addresses the existence of a materially similar implied term in the Loan Agreements), and/or (ii) it arises pursuant to the ‘prevention principle’.”
[23]At the hearing, Mr Barns-Graham accepted that this term, at least as pleaded there, is not sustainable. It is not, in fact, the defendants’ case that this was an express term. Nor, indeed, is the defendant’s case that any breach by CTIEC—whatever its consequence—operated to defeat any right to payment. What the defendants really seek to allege is that it was an implied term of the December 2021 Deal that if the claimant breached its obligations under that alleged contract (each of which is separately pleaded in paragraph 31(b)–(e) of the existing pleading, so they need not be set out again), the defendants would be under no obligation to pay any outstanding sum to the claimant if their inability to do so was the result of that breach.[24]I am not prepared to give permission to amend paragraph 31(c) in the form proposed. So far as it alleges any express term, the defendants accept that it has no realistic prospect of success, for there is no such express term. So far as it alleges an implied term, the term it pleads goes beyond the case the defendants actually seek to make, and has profound legal difficulties. As pleaded, any failure by the claimant to perform its obligations under the agreement, however trivial or fleeting, would extinguish the defendants’ liability. It is quite impossible to see how a term so broad could be “necessary”, “obvious”, or required by the ‘prevention principle’ (by which the defendants mean a putative legal principle that a contract breaker cannot complain if its counterparty does not perform because of its own breach).[25]I shall therefore refuse permission for that proposed amendment. The defendants should reformulate the implied term they wish to allege, so that it matches the case they want to advance. I should not be taken to say that such a term, if formulated, is one for which permission should be given. It is sufficient to say that paragraph 31(c) as currently formulated is not properly arguable, and undesirable because it does not clarify, but obscures, the real issues in the case.[26]Paragraph 31(d). I do not think that the claimant mounted any serious objection to the reformulation in paragraph 31(d) of the amended defence. I do not see any objection to it (since in any event it simply makes clear what was, I think, already implicit in the existing defence).[27]Other amendments. The remaining amendments to this part of the case do not appear to me to make any substantial change. Paragraph 32 pleads in terms that the December 2021 Deal is a binding contract to which all companies in the WELink group are party. That is not a new allegation: it is already expressed in paragraph 30. Paragraphs 36 and 37 repeat allegations (again, already clearly in play) that the claimant’s failure to live up to its obligations under the December 2021 Deal prevented the defendants from repaying their debts. They also make it clear that the defendants’ alternative argument, if the December 2021 Deal is not the governing regime for repayment, is that the 2019 “rollover” loans apply. I agree with the defendants that this was, already, the logical consequence of their existing case.[28]Mr McCombe, for the claimant, says that this is all fanciful: the December Memorandum could not conceivably be a source of legal obligations. Nor is it credible to suppose that it created a multi-party contract to which every member of the WeLink group was party. He cannot say that the suggestion that the December 2021 Deal contained binding obligations is a new one, or that refusing the amendments would remove that issue from the case. But he says, in effect, that the court should refuse to permit amendments which rearrange the deckchairs on an already sinking ship.[29]I agree with the defendants that an amendment application is not an apt vehicle to consider that submission. Suppose I refused the amendments, because I thought the December Memorandum was obviously incapable of being a contractual document. What then? The plain fact is that the allegation that it is such a document would remain part of the case, since it already is, and has not been the subject of any summary judgment application. What then would be the point of forcing the parties to a trial of that issue, but on the basis of a pleading that is not in precisely the form that reflects the case that the defendants wish to make? I can see none.[30]If I thought it was transparently clear that the December Memorandum was not legally binding (for instance if it contained a term to that express effect), I might take a different view. But the submissions I heard did not demonstrate that. Mr McCombe made many forceful points (for example as to its title and the inherent improbability of extracting binding obligations from the handwaving terms of a slide presentation). But there are at least some points the other way: for instance the fact that the Memorandum describes itself as being a “clear agreement” about “what is to be done by when”, and that some at least of its points require clear and immediate action (e.g. to “immediately provide approval” for a specific refinancing). More significantly, it is a document which obviously has a large hinterland, including oral discussions. I have almost no evidence from either side about that, and none from the individuals involved. It is written in English and Chinese, and I also have no evidence about the meaning of the Chinese words. And, improbable as one might think it would be that a reference to the “WeLink group” should mean it is a contract made on behalf of each and every member of that corporate group, I do not think I can dismiss that when it is precisely the basis for CTIEC’s own case about the guarantees.[31]I shall therefore permit those amendments. That need not and may not be the end of any interlocutory argument about the effect of the December 2021 Deal. I cannot know whether I would reach the same conclusion if I had before me not an amendment application focused on piecemeal changes which do not alter the thrust of the defendants’ case, but a summary judgment application challenging that proposition root and branch, with proper evidence and fully developed argument. My decision about amendment does not preclude such an application being made or succeeding. I simply decide that, in circumstances where that overall issue will remain part of the case come what may, and where the evidence and argument before me has not permitted it to be considered even with the focus that a summary judgment application would require, I am satisfied as a matter of discretion that the overriding objective is better served by permitting the defence to be amended, so that if such an application is made it is considered on the basis of a defence in which the defendants have put their best foot forward.[32]Paragraph 33. In paragraph 33, the claimant’s only objection was to an allegation that the third defendant made a payment to CTIEC when, it was said, that payment was actually made by Green Town. Since, however, the defendants’ case is (and is stated to be) that the payment was made by the third defendant on Green Town’s behalf (as is clear from paragraph 80(b)), the difficulty resolves itself. I will allow the amendment, provided it reads “D3 on behalf of Green Town …”.[33]Paragraph 94. The final point, best considered here rather than in relation to the additional defendants, concerns a proposed counterclaim by the third defendant (paragraph 94). This does not raise any of the issues concerning the additional defendants: it is clearly a counterclaim, by an existing defendant, with no difficulty about jurisdiction. The only substantive objection to it was that it was insufficiently particularised. I do not think that is a weighty objection to a small claim. If further particulars are needed, they can be provided in due course. I shall therefore permit it.

The additional counterclaims

[34]The amendments proposed by the additional defendants consist, substantively of three claims.[35]The first is a proposed counterclaim by Green Town. That is set out in paragraphs 81–88. Green Town was a WeLink company that was engaged in developing the Heartlands project in West Lothian. A subsidiary of Green Town originally contracted with an English subsidiary of the claimant relating to this under an EPC contract. There were then amended and restated EPCs under which the claimant was to perform development work. The work that needed to be done in late 2021 (it is said urgently) included the construction of a distributor road. The proposed pleading alleges that CTIEC wrongfully failed to provide £12m of funding which was said to be required under the business plan that formed (on the defendants’ case) part of the December Memorandum. It is said that this led to funding difficulties and delay in starting work on the distributor road, which in turn led to the inability to develop the site, and a loss of profit estimated at £71.9 million.[36]The core of the allegations is set out at paragraph 87:
“By the conduct set out above: a. [CTIEC] breached the Heartlands EPCs by failing (i) to commence phase one of the distributor road as soon as reasonably practicable (or at all), (ii) to procure the completion of the works with due expedition and without delay, and (iii) preventing the construction of the distributor road by refusing to engage WEUK or any other subcontractor, having decided against taking the steps necessary for [a third party] Loan Offer to be accepted; b. [CTIEC] thus breached the December 2021 Deal by (i) not engaging fully with WELink and not committing sufficient resources to Heartlands, in breach of paragraph 5(a) of the MoU, (ii) not engaging with WELink or taking action to implement the business plan immediately in the 2022 new year, in breach of paragraph 6 of the MoU, and (iii) not funding or engaging with, and actively preventing, the construction of phase one of the distributor road; and c. [CTIEC] thereby also breached its duties which arose by reason of the December 2021 Deal being a relational contract, as set out in paragraphs 78 to 79 above.”
[37]The second counterclaim is made by Green Town at paragraphs 89–90. Those allege that a payment of €13 million was made on Green Town’s behalf to CTIEC under the December Memorandum. It is said that it should have been returned, but was not. That sum is claimed both by Green Town, and by the third defendant (which made the payment on Green Town’s behalf).[38]That same payment then features again in the third additional counterclaim at paragraphs 91–93. This time the additional claimant is Orcus, which was involved in the Puerto Real solar project. It claims that, if the payment back to Green Town had been made, Green Town would have used that payment to fund Orcus in purchasing a tranche of shares in the relevant joint venture company. As a result it says, it had to obtain alternative finance at high cost, which ultimately led to a “fire sale” of the shares, with an estimated loss of €8.5 million compared to what it says it would have made if it had been able to hold the shares and complete the project before selling profitably.

The principles

[39]It is common ground that, to enable these counterclaims to be made, the court needs to take two decisions. It first needs to decide that Green Town and Orcus should be joined as defendants to this case. The relevant power in that respect is in CPR 19.2(b): (2) The court may order a person to be added as a new party if –(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.[40]Assuming the party is added as a defendant, its ability to make a counterclaim is governed by CPR 20.4(2): (2) A defendant may make a counterclaim against a claimant –(a) without the court’s permission if the defendant files the counterclaim with the defence; or (b) at any other time with the court’s permission. The parties assumed that part (b) applied. I am not sure that this is right, since if joined Green Town and Orcus would not be “amending” a defence but filing one for the first time. But in practical terms it does not matter, since unless I order Green Town and Orcus to be joined, it does not arise.[41]Usually, a “defendant” is someone who the claimant has chosen to sue, and therefore what CPR 20.4 contemplates is that someone who has been targeted as a defendant by the claimant may respond with a counterclaim of their own. The usual way for a person who has not been made the subject of any claim to make one is for that person to issue a claim form. Here, however, Green Town and Orcus are not the subject of any claim by CTIEC. They seek to become “defendants”, in name only, in order to advance their own claims.[42]This led CTIEC to make two preliminary submissions. First, Mr McCombe said, the application must fail in limine because Green Town and Orcus needed to apply to be joined, and that application was a form of “originating process” for which permission to serve on CTIEC in China was required, and had not been obtained. I disagree, for two reasons.(a) As is common ground, the existing defendants can make any application they choose to make, without permission being required: they can serve that application on CTIEC’s solicitors at the address for service it has given here. No doubt the court would need to consider whether Green Town or Orcus consented. But they need not make any application themselves.(b) Although I accept that an application notice may sometimes be originating process for which permission to serve can and should be given, I do not accept that any application made against an existing party is such process. A familiar example of process which would fall to be treated as originating is a claim against a third party, such as for third party disclosure. But there are many situations in which third parties may need to make applications in existing proceedings against existing parties (for instance, to vary an injunction that affects a third party, or to intervene). I do not agree that such applications are to be treated as if they were “claim forms”. They are applications in the proceedings which can be served on a party at the address for service it has given.[43]Mr McCombe’s second preliminary submission was that because CPR 20 uses the term “defendant”, and because a “defendant” is defined by CPR 2.3 as a person “against whom a claim is made”, then even if joined “as a defendant”, Green Town and Orcus would not really be defendants and would not therefore be able to make a counterclaim. I do not agree. In Pawley v Whitecross Dental Care Ltd [2021] EWCA Civ 1827, [2022] 1 WLR 2577 the Court of Appeal accepted that the court has jurisdiction to order joinder of a person “as a defendant” over the claimant’s objection, albeit that it would be exercised only rarely. It must follow that once joined “as a defendant” that person is so treated, including having the ability to counterclaim. That was the conclusion of Mr Christopher Pymont KC in Shetty v Al Rushaid Petroleum Investment Co [2011] EWHC 140 (Ch) at [17]. If justification is needed, I think one would say that once someone is joined as a defendant, they thereby become a person “against whom a claim is made”, since “claim” need not mean “claim for relief” but includes anyone joined as a defendant to be bound by the judgment.[44]Disposing of those objections, however, leaves a point of real substance. If Green Town or Orcus wished to sue CTIEC, each would normally have to issue a claim form, and each would normally need to obtain permission to serve that claim form out of the jurisdiction. Joinder to counterclaim circumvents that procedure. Somewhat surprisingly, neither party could say how an application for service out would or should be handled if it was made. For present purposes, I approach the question on the assumption most favourable to CTIEC, which is that there would be no available “gateway” for permission to serve out. (I stress: I have not heard argument on this, and I take it as an assumption for the sake of argument only.)[45]The difficult question concerns service. Mr McCombe submitted that it must be wrong in principle—a matter of jurisdiction—to permit a claim to be made by joining a new party as claimant and then permitting them to bring a counterclaim if that person was outside the jurisdiction.[46]It is one of the peculiarities of English common law that personal jurisdiction—the court’s power, from its perspective, to bind a person by its judgments—depends not on facts in the world, but on procedure: we do not serve a person with proceedings “because we have jurisdiction”; we have jurisdiction “because we have served proceedings”. Thus it is that the rules which normally govern jurisdiction are rules about service. On one view, this gets things back to front: a more tidily organised system would first identify when jurisdiction should properly be asserted, and then devise procedural rules for serving parties against whom jurisdiction can properly be asserted. But this is the approach that English law takes. See Adrian Briggs, Civil Jurisdiction and Judgments (8th ed, Informa 2025) at section 1.05:
“A fundamental characteristic of the common law’s approach to jurisdiction is that it equates jurisdiction with service of process. A defendant who has not been served (at all) is not, or not yet, subject to the jurisdiction of the court. A defendant who has been served … is subject to the jurisdiction of the court, for it is service, and only service, and always service, and nothing but service that gives the court personal jurisdiction over the defendant. To put it another way, service is the act which creates, crystallises, the jurisdiction of the court in relation to the claim.”
[47]Mr Barns-Graham submitted that, on a proper analysis, that means that if a (counter)-claimant can find another route to get the claim before the court, then that will serve the same purpose. Those who bring proceedings, and thereby opt in to the court’s procedural rules, cannot dine a la carte. They “submit” to the court’s power to control the resulting case in accordance with the entirety of the CPR, including rules 19 and 20. That act gives the court jurisdiction over them to apply all the rules, just as if they were within the jurisdiction.[48]Mr Barns-Graham referred to me to three cases which, he submitted, showed that this was the right analysis.[49]The first in time is Union Bank of the Middle East v Clapham (unreported, CA 1981). A Dubai-based bank had lent money to a Sharjah-registered company, supported by personal guarantees from its directors. The bank sued the directors in London, on the guarantee. Those proceedings were resisted by the guarantors, whose defence alleged that the bank had wrongly taken over the company’s assets. They then sought to join the company, not simply as a defendant, but to make a counterclaim concerning that allegedly wrongful action. Mustill J refused to permit that, because the bank was outside the jurisdiction and permission would not have been given to serve the writ in Dubai.[50]At that time the relevant rules provided that the court could join as a party: “(i) any person … whose presence before the Court is necessary to ensure that all matters in dispute … may be effectually and completely determined and adjudicated upon … (ii) any person between whom and any party … there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed … which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause …”.[51]Lord Denning MR said that it was just and convenient for the company to be joined both as a defendant and to counterclaim, a conclusion he thought “very necessary and proper”. He went on:
“The only complication which arises is with regard to the judge’s view of order 11, rule 1 [which provided for service out]. He thought that, as leave would not be given to serve the bank out of the jurisdiction in an original action, the company should not be allowed to do so indirectly by way of counterclaim. It seems to me that the answer is this: that the bank, in coming to this court to sue the guarantors, have submitted to the jurisdiction of the court. By submitting to the jurisdiction of the court, they also submit to its jurisdiction in relation to any counterclaim which is sufficiently and properly connected with their own claim …”
[52]Griffiths LJ said this:
“I agree that were a foreigner brings himself within our jurisdiction by starting an action here, the terms of order 11 have no relevance to the subsequent conduct of this action; and it is for that reason that I agree that this appeal should be allowed.”
[53]The editors of Dicey, Morris & Collins (16th ed) express some doubt about this decision. But it seems to me to be clear authority, not only under the Rules of the Supreme Court but applicable to the CPR, that once an action has been begun a claimant cannot object to the exercise of the court’s power to order a party to be joined as a defendant, including to make a counterclaim. And that applies even in a case where permission to serve out would not have been given, or could not have been given.[54]This might, at first sight, seem surprising. But is it so? When it comes to service out, the rules clearly allow that once one defendant has been served in the jurisdiction, other persons against whom related claims are brought may be joined to the claim as proper parties: see PD 6B para 3.1 (3). They also show that if an existing defendant’s counterclaim involves a third party, permission may be granted to serve the third party as an additional defendant to counterclaim: PD 6B para 3.1(4). This reflects a policy which enables the consolidation of related claims in a single forum. Why should a similar position not apply where the boot is on the other foot, and a person has brought a claim against one defendant, but others wish to participate and have a good reason to do so in order to resolve related issues efficiently?[55]The second case to which Mr Barns-Graham referred is Shetty v Al Rushaid Petroleum Investment Co [2011] EWHC 140 (Ch). In that case, proceedings had been brought by Mr Shetty in England, pursuant to an exclusive jurisdiction agreement, against two companies. A third company, ARPD, then applied to be joined as a defendant in order to bring a counterclaim, wishing to allege fraud. Christopher Pymont QC held that this was possible. Except in general terms, I do not think this case takes matters any further. It does not appear to have been submitted on behalf of Mr Shetty that the fact he was outside the jurisdiction made a material difference, so the point was not really hammered out in argument.[56]The third case was Whyte v Whyte [2005] EWCA Civ 858. This indicates that when considering, for the purposes of enforcement of a judgment at common law, whether a defendant in a foreign court “submitted”, the submission is regarded as including “related claims”. But in that case (and in the leading authority on which it relied, Murthy v Sivajothi [1999] 1 WLR 467 (CA)) the claims were not just related, but were between the same parties, and the real question was not whether a submission might extend to claims by third parties, but how far it related to a particular set of proceedings. If anything, it seems to me, Murthy tends to undermine Mr Barns-Graham’s submission. For in that case, having held that the submission extended to related claims, Evans LJ stated two provisos (at 476, emphasis added):
“This is provided, of course, that such claims may properly be brought against him under the rules of procedure of the foreign court, either by the original claimant or by others who are parties to the proceedings there at the time he makes the submission.”
[57]That suggests that, for the purposes of enforcing a foreign judgment, the English courts would not regard a judgment obtained by counterclaimants who had joined the proceedings after submission, even if the matters were related, as subject to the submission. But that does not take one very far, because it is well established that the circumstances in which the English court regards a foreign court as having in personam jurisdiction for the purposes of enforcement can, and often are, narrower than the circumstances in which it regards itself as having jurisdiction.[58]In the end, it comes down to Union Bank of the Middle East v Clapham. That decision is binding upon me. Whatever doubts the editors of Dicey may have about it, it seems to me to establish a principle which survives the transition a quarter of a century ago from the Rules of the Supreme Court to the Civil Procedure Rules. That principle is that the court does regard a claimant who brings proceedings here as placing itself fully in the hands of the court’s rules which permit both the defendants it has chosen to sue and third parties whom it has not chosen to sue to join the proceedings and make counterclaims. Since that can be done without service of any originating process, the rules about permission to serve out do not need to be satisfied.[59]Having said that, I think that court will exercise special vigilance where the counterclaim is to be made by a third party. The joinder of a defendant against the claimant’s wishes is, anyway, exceptional, as Pawley shows. The further removed the counterclaim is from the original claim, the greater the caution required. That was clearly expressed by Lord Denning MR in Union Bank of the Middle East when he spoke of the need for the counterclaim to be “sufficiently and properly connected with [the claimant’s] own claim”. The court will need to be satisfied that the commonality of issues truly makes joinder desirable. Moreover, and as part of that analysis, the court is likely to need to be satisfied—before deciding that joinder is desirable—that England is the most appropriate forum in which the case can be tried in the interests of the parties and for the ends of justice. In addition, when it is being asked to permit not merely amendments but entirely new claims, the court will wish to be satisfied, as it would on any application to serve a claim form out of the jurisdiction, that the merits of the claim give it a realistic prospect of success.

Application of those principles

[60]I have reached the clear view that it is not “desirable” to join Green Town or Orcus to the proceedings in order to enable them to advance the counterclaims they have pleaded. Even if there were no jurisdictional implications, I would on perfectly ordinary grounds decline to order joinder. Moreover, even if it could be said to be “desirable” to order joinder, I would not exercise my discretion to do so, because of the baneful consequences it would have for the management of this case.[61]I agree that there is “an issue” between Green Town and Orcus, on the one hand, and CTIEC on the other which is “connected to” the matters in issue in the proceedings. That issue is whether the December 2021 Deal, as the defendants allege, was a binding contract. Technically, that issue arises (it seems to me) between every company in the WeLink group and CTIEC.[62]The question then is whether it is “desirable” to join Green Town and Orcus to the proceedings so that that issue can be resolved. I accept that there is some advantage to doing so, because it avoids the risk of inconsistent judgments on the point in this and other proceedings. That therefore sits on the positive side of the ledger.[63]But “desirability” is never one sided, for there is a balance to be struck. Adding Green Town and Orcus so that they can bring a counterclaim will greatly expand and complicate the case: i) So far as Green Town is concerned, it will require the court to grapple with the contractual terms not just of the December 2021 Deal, but of a number of EPCs. That will have to be done against what is evidently a long and complex history of the development of the Heartland site. Given the size of Green Town’s claim (far larger than the sums claimed by CTIEC), that claim will inevitably assume huge prominence in the case. As best I can judge it, this would be really heavy commercial litigation in its own right. ii) My fears about this are enhanced, not allayed, by the extremely condensed way the Green Town claim is pleaded. Succinct pleading is to be commended. But I cannot really imagine that a claim covering several EPC contracts and events stretching back over six years has been more than vaguely sketched in the few pages that have been added to the defence. This is not a simple claim, and it is inevitable that the current pleading will be supplemented either by amendment or by extensive particulars. iii) Quite apart from the complexity of the underlying facts and contractual terms, the quantification of the Green Town claim will depend on evidence about the value of the site if developed, and the costs of developing it. That is likely to be extensive, technical, and quite unrelated to anything which is currently in issue in the case. iv) Even Green Town’s superficially simpler claim for the “return” of €13m raises similar difficulties, not the least of which is that it feeds into Orcus’s claim (which I discuss in the next paragraph). I see nothing “desirable” about including Green Town as a defendant simply so that it can bring one of a number of claims it has, which will need to be considered together.[64]The same goes for Orcus. The issues there are probably largely factual and financial, but they are likely to be complex, and there will evidently be serious questions about causation and remoteness of damage, as well as valuation. They will require the court to understand the terms of Orcus’s involvement with the project, its financial position in detail, negotiations with third party lenders, and to carry out valuations of shares in an asset on various alternative bases. As with Green Town’s claim, it seems inconceivable that the issues are more than sketched in the few brief paragraphs that currently make up that claim.[65]Moreover, none of the counterclaims is closely related to the claim that CTIEC makes. The overlap is entirely the result of one aspect of the defendants’ defence to that claim, and is confined to the contractual force of the December 2021 Deal. This is quite a way removed from the position as it was in Union Bank.[66]Joinder of Orcus or Green Town to pursue these claims risks turning already complex proceedings, which will require firm case management, into something intractable. The defendants submitted that refusing joinder would not avoid but merely “relocate” complexity. I do not agree. Where the points of overlap are confined, and the areas of non-overlap are large, relocation of the complexity into cases where there can be sustained focus on individual claims is, in my assessment, far more likely to lead to an efficient resolution of the disputes. To the extent that coordinated case management is justifiable, it can be provided.[67]It is not as if Green Town and Orcus do not have means of pursuing claims, if they have claims to pursue. Subject to any arbitration provision in the EPC that may affect Green Town, they can—if so minded—seek permission to serve a claim on CTIEC, and the existence of these proceedings will count in their favour so far as establishing that England is the appropriate forum. If a relevant gateway for service out exists (and it was not their case that it did not), and if their claims have sufficient merit to justify proceedings (which, they say, they do) they will get that permission. The court may or may not then consider case management methods, such as partial consolidation or combined hearing of the claims or preliminary issues in them, which would reduce or eliminate the possibility of inconsistency.[68]I am strengthened in my sense of where the balance of desirability lies, also, by the thought that the risks of inconsistency, although present, seem small. There is no reason to think that the court will not have all the material to reach a conclusion about the binding effect, in general, of the December 2021 Deal on the first occasion it considers it. Although the parties will be different, they are represented by the same legal team, and they are related parties which can be expected to coordinate their activities (Green Town and Orcus can participate “behind the scenes” as much as they like). Even if a decision on one occasion does not have effect as res judicata, the parties will have good reason to take a realistic approach.[69]For those reasons, I do not consider that it is “desirable” that Green Town or Orcus should be joined as parties to this claim. On the contrary, the desirable course is that they should pursue their claims in separate proceedings. That being so, I decline to order their joinder. I canvassed with counsel, and have considered, an intermediate possibility, namely that I join Green Town and Orcus as defendants but refuse to permit them to counterclaim, so that they will be bound by any decision that the December 2021 Deal is binding, but not able to advance any claims of their own. Neither counsel was enthusiastic about this suggestion, and I do not think it serves any useful purpose. It would be an unsatisfactory half-way house. The desirable course is to leave them to pursue their claims independently.

Other matters

[70]That leaves, I think, three loose ends.[71]First, the draft pleading contemplated moving some key pleas about the terms of the December 2021 Deal from the defence to the counterclaim. I am not sure that aided clarity. But it certainly does nothing useful when there is no substantial counterclaim. Though I doubt it is controversial, I would not be minded to permit those amendments.[72]Second, the counterclaim as formally advanced includes a claim by the third defendant to the return of the money paid by it on behalf of Green Town. As presently advised, I would not permit that amendment (even to advance a claim by the third defendant), because I do not see that the third defendant—which avowedly acted as agent for Green Town in making the payment and asserts that it was to Green Town that it should have been returned—can arguably maintain it. It therefore fails the merits test.[73]Third, the counterclaim contains an allegation of implied terms of the December 2021 Deal as a “relational contract”. It is not clear to me whether those allegations serve any purpose if the additional defendants’ counterclaims are not part of the case. But if they do have a residual value (as part of the defence), then I do not understand there to be any objection to them, in principle, as raising properly arguable points of law, and they might therefore survive my decision not to join Orcus and Green Town. This is a matter that I would invite the parties to consider.

Conclusion

[74]For the reasons set out above: i) I shall permit the existing defendants’ amendments to be made, with the exception of the terms pleaded in paragraph 31(c) of the draft defence that was before me, but including the third defendant’s legal expenses counterclaim. ii) I will not order joinder of Green Town or Orcus, or any of the consequential amendments that plead counterclaims on their behalf.[75]I shall hear counsel on the precise form of my order, and any consequential matters, including (if necessary) the claimant’s outstanding interim payment application.