Can A Third Party Rely On An Exclusive Jurisdiction Clause? What Campeau v Gottex Means For SPA Disputes

In Campeau v Gottex Real Asset Fund 1 (OE) Waste SARL [2025] EWHC 2322 (Comm), the High Court considered whether a non-party to a Share Purchase Agreement could rely on the agreement's exclusive jurisdiction clause. The judgment offers useful insight into how English courts approach the interaction between:

• Exclusive jurisdiction clauses
• Third-party rights under the Contracts (Rights of Third Parties) Act 1999 (the "1999 Act")
• Relevant Civil Procedure Rules (CPR) affecting jurisdiction challenges

Here we look at the interplay between these legal frameworks and highlight key takeaways for both contracting parties and third parties navigating cross-border or multi-party disputes.

Background

The dispute centres on the sale of Granville Ecopark Holding Company Ltd (the "Target") by OE Waste (the "Seller") to Geco Holdco Ltd (the "Buyer"). In 2019, the Seller and Buyer entered into a Share Purchase Agreement (SPA) to sell the Target for £17.7 million, with the potential for deferred consideration, as well as payment of £30.4 million to enable repayment of various debts. The SPA included provisions that prevented the Seller from suing the Target or its personnel (clause 10.3) – all of whom were expressly stated to be entitled to the benefit of that clause for the purposes of the 1999 Act. The SPA also contained an exclusive jurisdiction clause in favour of the courts of England and Wales (clause 18.2).

Mr Campeau was a director of the Target, but he was also Head of the Investment Advisory Team who provided counsel to the investment advisor to the fund which owned the Seller.

In December 2023, the Seller initiated proceedings in Luxembourg against Mr Campeau on the basis that the Seller had sold the Target on terms which did not adequately reflect its value. The Seller alleged that Mr Campeau was a de facto director, and as such, he had breached his duties in negotiating the SPA. It alleged this resulted in the Target being sold for £44.5 – £80 million less than its true value.

Mr Campeau firmly denied the allegations. He maintained that he was not a de facto director and did not participate in the SPA decision; the Seller was advised throughout by an investment bank during arms' length negotiations. Furthermore, Mr Campeau maintained that the Seller's claim in Luxembourg had been brought in breach of clause 10.3 of the SPA, and that clause 18.2 in any event required any claim to be brought against him in the courts of England and Wales.

In November 2024, Mr Campeau commenced Part 8 proceedings in England. The claim was served in Luxembourg without permission, relying on rule 6.33(2B) of the Civil Procedure Rules (which, in short, allows service out of the jurisdiction without the court's permission where there is an exclusive jurisdiction clause).

Mr Campeau sought the following:

1. A declaration that OE Waste waived any right to bring the claim which it was asserting in the Luxembourg proceedings.
2. An injunction requiring OE Waste to discontinue the Luxembourg proceedings and prohibiting it from:
   1. Bringing any further claim or other action in respect of negligence or otherwise against him in relation to any matter arising directly, or indirectly, out of, or in connection with, the SPA.
   2. Bringing any proceedings arising out of, or in connection with, the SPA in any court other than the courts of England and Wales.
3. Damages.

Subsequently, Mr Campeau also sought to rely on the additional service out gateways in CPR 6.33(2B)(b) and (c).

The Seller's Submissions

The Seller challenged the jurisdiction of the English courts and sought to set aside service of the claim form on the basis that the courts of England and Wales did not have (or should not exercise) jurisdiction. The Seller argued that Mr Campeau was not entitled to serve the Claim Form out of the jurisdiction without permission and in reliance on the exclusive jurisdiction provision in clause 18.2 of the SPA, because he was not a party to the SPA, and there was no other way, either pursuant to the 1999 Act, or by contractual construction, that Mr Campeau could rely on clause 18.2.

Mr Campeau's Submissions

Mr Campeau asserted that the claim brought by the Seller in Luxembourg contravened clause 10.3 of the SPA. Any such claim should be brought in England, as stipulated by the jurisdiction clause in the SPA. Relying on Civil Procedure Rule 6.33(2B), Mr Campeau served his claim on the Seller in Luxembourg without permission, arguing that this is permissible where an exclusive choice of court agreement exists, or where the claim falls within the scope of an agreement.

Mr Campeau relied on the wide wording of the exclusive jurisdiction clause in the SPA and the statutory effect of the Contracts (Rights of Third Parties) Act 1999. Mr Campeau argued that even though he was not a party to the SPA, clause 18.2 was sufficiently broad to cover his claims. Furthermore, the commercial intention was for such disputes to be resolved in England.

The Judge's Considerations:

Civil Procedure Rules

Under rule 6.33(2B) of the Civil Procedure Rules 1998, a claimant can serve a claim form on a defendant outside the UK where:

1. The court has 'power to determine' the claim under the Hague Convention on Choice of Court Agreements 2005, and the defendant is party to an exclusive choice of court agreement.
2. The court has jurisdiction to determine the claim under the contract.
3. The claim is in respect of a contract falling within point (b).

Rule 6.33(2B)(a) requires that the defendant is party to an exclusive choice of court agreement, but does not require that the claimant is also.

Similarly, rule 6.33(2B)(b) does not require that the claimant must be party to the contract in question.

Rule 6.33(2B)(c) applies only when the claim is one which falls within the scope of an exclusive jurisdiction clause.

Not being a party to the SPA, or the exclusive jurisdiction clause within it, did not preclude Mr Campeau from relying on the sub-rules of CPR 6.33(2B), although he had to show that his claims were within the scope of the exclusive jurisdiction. This was an exercise of contractual construction. In this case the wording of the exclusive jurisdiction clause was wide enough to embrace claims by third parties, and this interpretation accorded with the commercial sense of the provision.

The 1999 Act

Section 1(4) of the 1999 Act provides that a third party's right to enforce a contract term is 'subject to and in accordance with' the contract's other terms. This includes jurisdiction clauses; the explanatory notes to the Act envisage that a third party enforcing contractual rights may be bound by a jurisdiction clause. In this instance, the court found that the exclusive jurisdiction clause in the SPA was a 'relevant term' for the purposes of the Act and as such, there was a good arguable case that Mr Campeau, in seeking to enforce rights under Clause 10.3, was required to bring proceedings in England, and the English court had jurisdiction under CPR 6.33(2B).

The decision

The court found in favour of Mr Campeau and dismissed the Seller's application. The court determined that the SPA's jurisdiction clause was sufficiently broad to cover Mr Campeau's claims and that the English courts had jurisdiction under CPR 6.33(2B). The Seller's application to set aside service of proceedings out of the jurisdiction was therefore refused. This decision reinforces that non-parties may, in certain circumstances, rely on exclusive jurisdiction clauses when the contract and the statutory framework supports such an interpretation.

It should be noted however that this decision only determines the validity of Mr Campeau's service of proceedings out of the jurisdiction – it did not address the substantive dispute, including whether the release clause in the SPA will defeat the underlying claim. Nor does this decision in itself provide Mr Campeau with any injunctive relief to prevent continuation of the Luxembourg proceedings – that is again a matter to be resolved in the underlying Part 8 claim.

What does this mean for future disputes?

Care should always be taken when drafting agreements which potentially involve third parties –the 1999 Act can be an extremely useful tool, but must be approached with caution and the drafting must reflect the parties' aims. While this may not always be in the parties' contemplation when thinking about third party rights clauses, consideration should be given as to whether any such clause extends to the dispute resolution provisions in the contract (whether they provide for litigation or arbitration) and making any decision on this point express. If a jurisdiction clause is not drafted specifically enough, a broad interpretation may be implied which could have unintended consequences for the parties to the agreement.

The judge in this case also noted that it was regrettable that Mr Campeau's application for retrospective permission to serve out of the jurisdiction had not been listed for hearing in tandem, as it appeared there was at least one service out gateway that might have applied, which could have rendered questions about the validity of existing service out academic. Claimants seeking to bring proceedings in relation to a contract to which they are not a party should therefore also remember the useful jurisdictional gateway in PD 6B.3.1(6)(c) (introduced in the wake of Brexit) which allows a party to serve out of the jurisdiction with the court's permission if the claim is in respect of a contract governed by the law of England & Wales.

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