High Court finds tort jurisdictional gateway satisfied in fraud case where only indirect harm suffered in England

The High Court has held that a claim brought by a bank against several shareholders of a company for deceit and unlawful means conspiracy met the requirements of the jurisdictional gateway for tort claims (among other gateways) but declined to exercise jurisdiction on grounds of forum non conveniens: Abu Dhabi Commercial Bank Pjsc v Shetty & Ors [2022] EWHC 529 (Comm).

The decision applies the Supreme Court's decision in FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45 (considered here) that it is sufficient for the tort gateway to apply if the claimant has suffered any actionable damage within the jurisdiction, whether direct or indirect. Brownlie was a personal injury case and the Supreme Court recognised that, in cases involving wholly economic loss, the mere fact of some financial loss – however remote – felt by a claimant where they were based would be an unsatisfactory basis for the exercise of jurisdiction. In the present case, however, the court found that the requirement for indirect damage in England was satisfied because the relevant loan agreements had been brought into effect at solicitors' offices in London – even though no funds had been transferred to or from England. That is arguably quite a tenuous connection with the jurisdiction, and underlines the potential breadth of the gateway.

However, the decision is consistent with the approach endorsed by the Supreme Court in Brownlie that the gateway should be interpreted broadly, with the doctrine of forum non conveniens left to police which claims should in fact be heard in England. In the present case the High Court found that Abu Dhabi was the more appropriate forum for the dispute, including (among other factors) because there were disputed issues of UAE law.

For more information on the decision, see this post on our Banking Litigation Notes blog.