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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Pearson Education Ltd v Prentice Hall of India Private Ltd [2005] EWHC 655 (QB) (22 April 2005) URL: http://www.bailii.org/ew/cases/EWHC/QB/2005/655.html Cite as: [2005] EWHC 655 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd April 2005

Mrs Justice Gloster, DBE:

1. This is an application by the defendant, Prentice Hall of India Private Limited ("the defendant"), (1) to set aside an order made by Master Foster on 19 December 2003 under CPR 6.20/6.21 granting permission to the claimant, Pearson Education Ltd ("the claimant"), to serve proceedings on the defendant in India; and (2) alternatively, for an order that the proceedings be stayed on the grounds of forum non conveniens. At the hearing before me, Mr Daniel Gerrans of counsel appeared on behalf of the defendant and Mr Stephen Houseman of counsel appeared on behalf of the claimant.

Background

2. The defendant is an Indian publishing company, formed in 1963 as a joint venture between a United States publisher, Prentice-Hall Inc. and local Indian interests. Currently, it is substantially owned by local interests, its principal shareholder and director being a Mr Asoke Ghosh. The claimant is an English company, which has at all material times been, and is, a subsidiary of Pearson plc ("Pearson"). In 1998 Pearson acquired Simon & Schuster, the publishing group of which Prentice-Hall Inc. then formed part, and Prentice-Hall Inc. changed its name to Pearson Education Inc ("PEI"). The present dispute between the parties concerns the defendant's rights to print, publish and sell works under 97 individual licensing agreements ("the Agreements") entered into between 1986 and 1997, under which the defendant was licensed to print, publish and sell low-cost English language copies of 97 copyright works in India and other Asian countries. The original licensors under these Agreements were either Prentice Hall International (UK) Limited ('PHI') or Prentice Hall Europe ('PHE'). The Agreements contain a choice of law clause (clause 13), which provides that the Agreement "shall be construed and interpreted according to the laws of the United Kingdom", but no choice of jurisdiction clause. Clause 7 provided that the defendant's rights thereunder should automatically terminate, and revert to the licensor, in the event that the defendant failed to rectify any violation or breach of its obligations within one month of a written notice requiring it to do so.
3. According to the claimant, and as alleged in the Particulars of Claim, the rights under these Agreements were validly assigned to the claimant in 1999. The defendant stopped paying any royalties or providing any accounts or other materials as required under the Agreements in 1996. The claimant (and its predecessors in title) had therefore assumed that the titles had gone out of print and the relevant rights had reverted under the Agreements (clause 7). However, in late 2003, the claimant discovered that the defendant was continuing to print the Titles, despite the fact that it had failed to perform its obligations under the Agreements for the previous seven years.
4. On 4 November 2003, alternatively on 18 December 2003, purporting to exercise its rights under the Agreements, the claimant served default notices on the defendant for non-payment of royalties since 1996. On 22 December the claimant, having obtained permission to serve out from Master Foster, issued the Claim Form against the defendant. The claimant contends that the defendant failed to remedy those breaches within one month of such notice or at all, and that, accordingly, the Agreements automatically lapsed under clause 7 at the expiry of that period. Although the defendant purported to remedy its accumulated breaches in November 2004, by tendering royalty cheques and taking other steps, the claimant disputes that such late attempt at performance was sufficient and contends that, in any event, it was not capable of "saving" the Agreements from the automatic termination and expiration provisions of clause 7.
5. The defendant does not effectively dispute that it was in breach of the various Agreements. Its argument is that (i) the claimant had no title to sue at the time that it issued the Claim Form in December 2003, because there had been no valid assignment of the rights under the Agreements from the original licensors to the claimant; or (ii) even if the necessary assignments can be proved, the claimant had no more than an equitable title at the time it issued the notices of default on 4 November and 18 December 2003, and an equitable title was not sufficient to entitle it to exercise rights under clause 7. Accordingly, the defendant contends that there has been no valid termination of the Agreements or reverter of the rights in favour of the claimant. These two defences were referred to as "the Title to Sue Defence" in the argument before me. So far as the claimant's other claims are concerned, the defendant effectively concedes that it has no defence.
6. Procedurally the position is as follows. The defendant made its application to set aside under CPR 11 on 19 February 2004. The application was made out of time under CPR 11(4), after the defendant had first filed an acknowledgment of service indicating its submission to the jurisdiction and requested an extension of time for serving its Defence. This led to a consent order dated 23 March 2004 and the defendant's filing of an amended acknowledgment of service. The defendant subsequently paid the sum of £10,000 into court as security for the claimant's costs of the Part 11 application. The hearing of the Part 11 application was then adjourned successively during 2004.
7. By letter dated 11 November 2004, the defendant's solicitors made an open offer, followed by a further open letter on 22 November 2004. The defendant tendered payment to the claimant and took other steps in purported satisfaction of its obligations under the Agreements and agreed that a number of the Agreements had been terminated. More significantly, the defendant openly indicated its willingness to submit to the jurisdiction of the English court in respect of the claimant's claims for an account and inquiry, the question of interest on sums due and paid, and the determination of legal costs in the action and on its application.

Relevant principles relating to jurisdiction

8. The relevant principles relating to jurisdiction are not in dispute. Lawrence Collins J in Ophthalmic Innovations International (UK) Ltd v Ophthalmic Innovations International Incorporated [2004] EWHC 2948 (Ch) (16 December 2004), at paragraphs 38-42, summarised the position as follows:

"38. CPR 6.21(2A) provides that the court will not give permission for service out of the jurisdiction unless it is satisfied that England is the proper place to bring the claim. The claimant has to satisfy the court of three matters: first, that it has a cause of action against the defendant 'with a reasonable prospect of success' (CPR 6.21(1)(b)); second, that the case falls within one of the heads of CPR 6.20; and third, that England is the appropriate forum.

39. On the first question, it was held under RSC Order 11, the predecessor of CPR 6.20, that the standard of proof which the claimant had to satisfy in showing that it had a cause of action was whether, on the written evidence, there was a serious question to be tried, i.e., a substantial question of fact or law, or both, which the claimant bona fide desires to have tried: Seaconsar Far East Ltd v Bank Markazi Iran [1994] 1 AC 438. It is not likely that the test under CPR 6.21(1)(b) of a 'reasonable prospect of success' is any different.

40. On the second question, the standard to be applied when deciding whether the jurisdiction of the court had been sufficiently established under one or more of the heads of what is now Rule 6.20 is that of good arguable case, which is a concept with some degree of flexibility depending upon the issue: Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547, at 558, per Waller LJ, approved [2002] 1 AC 1, at 10, per Lord Steyn.

41. On the third question, which goes to the discretion of the court, the claimant must show good reason why service on a foreign defendant should be permitted: see Amin Rasheed Shipping Corp v Kuwait Insurance Co [1984] AC 50; Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460.

42. In Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 478 et seq, Lord Goff of Chieveley confirmed that in service out of the jurisdiction cases the burden of proof was on the claimant, whereas in stay cases the burden was on the defendant. In the case of service out of the jurisdiction the claimant is seeking to persuade the court to exercise its discretionary power to permit service on the defendant outside the jurisdiction:

'The effect is, not merely that the burden of proof rests on the plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so. In other words the burden is, quite simply, the obverse of that applicable where a stay is sought of proceedings started in this country as a right.'"

9. For my part, although, as Lawrence Collins J suggests, there may not be any difference in practice between the application of the two tests, namely "serious issue to be tried" under RSC Order 11 and "a reasonable prospect of success" under CPR 6.21(1)(b), there is, at least, a semantic difference between the two. Accordingly, I prefer to approach that issue by asking myself whether the claimant has indeed satisfied me that it has a cause of action against the defendant which has a reasonable prospect of success.
10. It is common ground that the second requirement is met. The defendant concedes that the choice of law clause referring to "the laws of the United Kingdom" (clause 13) should be construed as referring to the laws of England, thus satisfying Rule 6.20(5)(c).
11. The first and third requirements are in dispute, however. The defendant maintains that the claimant cannot establish that its claim against the defendant has a reasonable prospect of success, and that, in any event, India is the most appropriate forum for determination of any dispute between the parties. The defendant also maintains that the claimant, in making its application for service out of the jurisdiction, omitted to inform the Court of facts material to the Court's decision. For any of these reasons, according to the defendant, the Order giving permission to serve out of the jurisdiction should be set aside.
12. Before I turn to consider these arguments, I remind myself that it is not appropriate for a judge hearing an application under CPR 11 to conduct a detailed mini-trial of the merits, whether legal or factual, of what may be complex issues arising in the litigation. In particular, in relation to the issue as to whether the claim against the defendant has a reasonable prospect of success, the benefit of any evidential or legal doubt should usually be given to the claimant at this stage; see the 2004 White Book, Volume 1 at CPR Part 6.21.15 and per Lord Templeman in Spiliada Maritime Corporation v. Cansulex Ltd. [1987] A.C. 46 at 465E-G.
13. I turn now to consider each argument in turn.

Cause of action 'with a reasonable prospect of success'

14. CPR 6.21(1)(b) requires the claimant to show that it has a cause of action against the defendant which has 'a reasonable prospect of success'. It is common ground that royalties under the Agreements have not been paid since 1996, and that the defendant did not remedy these breaches when it received notices of default in late 2003, although it did offer to do so 12 months later, in late 2004. The claimant therefore seeks remedies for the accrued breaches, and a declaration that the Agreements have been terminated by virtue of clause 7. Outstanding royalties amount to approximately $20,000 in relation to the PHE works (since purportedly tendered by the defendant) and approximately $42,000 in relation to the PHI works. Both parties acknowledge that the validity of the purported terminations is the most important issue in the present action.
15. Even conceding these facts, the defendant maintains that the claimant does not have a cause of action 'with a reasonable prospect of success', because of the Title to Sue Defence.
16. Numerous issues arise in relation to this defence. Details of the assignments from the original licensors to the claimant remain unclear. The claimant's original Particulars of Claim, formulated in December 2003, assert that rights were assigned to the claimant directly from the licensors (PHE and PHI), or indirectly via two intermediate companies. These intermediaries are referred to as International Book Distributors Limited 1 ("IBD1") and International Book Distributors Limited 2 ("IBD2"), although both were registered, at different times, simply as International Book Distributors Limited. Subsequent investigations have revealed that the chain of assignments may be more complex than this. A draft of proposed Amended Particulars of Claim, which sets out in greater detail the chain of assignments, was before me at the hearing.
17. Despite these uncertainties, the first of the defendant's assertions appeared to fall away, at least in part, during the course of the hearing. It emerged as common ground that the claimant had an arguable case with a reasonable prospect of success that it was entitled to enforce remedies for past breaches of the terms of the Agreements, either as legal or equitable holder of these rights (in relation to equitable assignees, see Weddell v JA Pearce & Major [1988] Ch 26; Three Rivers District Council v Bank of England [1996] QB 292), not least because, as was admitted by the defendant, the claimant had now, at the latest after service of its reply evidence on this application on 25 October 2004 (which explained the successive chain of assignments), given notice of the assignment of the Agreements to the defendant and therefore had become legal assignee of the PHE works. However, the defendant submitted that this concession was too insignificant to affect the jurisdiction issue, since it gave the claimant no more than had been offered by the defendant in its November 2004 offer letter, and so the claimant had no serious cause of action based on these grounds. Clearly, however, in my judgment, given the history between the parties over the past eight years, the claimant cannot realistically be expected to accept such an offer without some means of verifying what is actually due under the Agreements in relation to the past breaches. On any basis, it is entitled to a proper account of the sums which are due to it, which is part of the relief which it seeks in the current proceedings.
18. However, the defendant's concession leaves the termination issues untouched. Mr Gerrans argued that the analysis applied in relation to past breaches could not save the claims based on termination of the Agreements. He relied on Warner Bros Records Inc v Rollgreen Ltd [1976] 1 QB 430 (CA), where it was held that an equitable assignee could not exercise an option under the assigned contract, without first getting in the legal title; until then, the option had to be exercised by the legal assignor. He submitted that, accordingly, there was no entitlement in the claimant to serve the default notices under clause 7.
19. Most of the claimant's arguments at the hearing were directed at this issue. As I have already said, an application on jurisdictional issues is not the occasion for a final determination of the merits of the underlying claim. The claimant merely needs to show that it has an arguable case with reasonable prospects of success. In order to demonstrate this, Mr Houseman, on behalf the claimant advanced various alternative arguments, including (but not limited to) the following.
20. First, he submitted, that even without a straightforward assignment from PHI, PHI's rights under the Agreements became vested in IBDI (and, later, in IBD2 and then the claimant) because PHI entered into the Agreements as agent for IBD1 as undisclosed principal.
21. Second he submitted that the claimant's rights as eventual equitable assignee of the rights under the Agreements were converted into legal rights because the claimant gave effective notice to the defendant of the relevant assignments as required by the Law of Property Act 1925 section 136. He submitted that there was no requirement under section 136 that specific notice of each successive intermediate assignment had to be given to the debtor, and no authority directly on the point. He relied, amongst other cases, upon Colonial Insurance v ANZ Banking Ltd. [1995] 1 WLR 1140 at 1144-45 (a case relating to notice affecting the priority of successive equitable assignments under the Rule in Dearle v Hall) and Mannai Investment Co Limited -v- Eagle Star Life Assurance Co Limited [1997] AC 749 as authority for the proposition that, in a modern commercial context, where the substance of the communication is more important than its form, and particularly where what is involved is successive "internal" assignments between members of the same corporate group, it suffices for the purposes of section 136 if the debtor is given relevant information about the last assignment in the chain, from which it is perfectly apparent that the original assignor and its successor will have made intermediate assignments.
22. Third, he submitted, by reference to correspondence in the bundles before me in the period December 1998 to 4 November 2003, that express notice had in fact been given to the defendant of the relevant assignments. He submitted that that appeared from the cumulative communications which had to be construed by reference to factual matrix material such as the defendant's knowledge of the arrangements by which Pearson had acquired the business of Simon & Schuster in 1998 and the claimant had acquired the titles in 1998-9.
23. Fourth, Mr Houseman submitted that, even if the claimant did not give the required form of express notice to the defendant, the defendant is nonetheless estopped from denying that the claimant is the legal assignee of the relevant rights. It was common ground before me that it is legally possible for a debtor to be estopped from relying, in answer to a claim by an assignee of a chose in action, on a defence arising from a failure to comply with the requirements of section 136; see e.g. Technocrats International v Fredic [2004] EWCH 692 (QB) at paragraph 56.
24. Fifth, he submitted that, even if the claimant was not the legal assignee at the time it issued the default notices, the notices were nonetheless effective because legitimately issued by the equitable assignee, or were subsequently (and retrospectively) given effect when the claimant became the legal assignee.
25. Finally, in further written submissions supplied after the hearing, Mr Houseman contended that, irrespective of the position under section 136 of the Law of Property Act, a valid assignment of copyright takes place when there is a written assignment signed by the assignor. There is no requirement for notice to be given to any licensee of the copyright to make such a transfer effective; see section 36(3) of the Copyright Act 1956 ("the 1956 Act") and section 90(3) of the Copyright, Designs and Patents Act 1988 ("the 1988 Act") (between them covering the period when the Agreements were created in 1986-1997 and when the assignments occurred in 1998-1999); see also Copinger at 8-52. The assignee of the copyright (its new owner) becomes bound by any pre-existing licence of the copyright, provided only that he (the assignee/owner) has notice of the licence; see section 36(4) of the 1956 Act; and section 90(4) of the 1988 Act. Without notice to the licensee, the new copyright owner thus becomes the new licensor by statutory novation. The licensee enjoys all the same rights against the new owner/licensor as he did against the original owner/licensor: see section 92(2) of the 1988 Act.
26. Thus, Mr Houseman contended that, in the present case, the claimant became the copyright owner of all 97 Titles in July 1999 (or, it is said, this is, at least, seriously arguable); so the claimant is bound by the terms of the Agreements without any question of notice of assignment to the defendant ever arising. The question therefore is whether, in those circumstances, the claimant had capacity to give a notice under clause 7 requiring remedy of breaches of the Agreements. The answer which Mr Houseman puts forward is that the claimant did have such capacity, because "Proprietor" in the Agreements referred to, or included, the copyright owner, whether original or by assignment; this, he submits, is supported by clause 7 itself (rights could only revert to the copyright owner); clause 8 (allowing unfettered assignment on the Proprietor's side); and clause 9 (reserving future rights, which could only mean to the copyright owner). He also submitted that this construction is supported by Mr Ghosh's evidence, where he says he only intended to contract with the copyright owner.
27. In support of this argument, Mr Houseman pointed out that, if the claimant, as copyright owner and with the obligations of licensor under the Agreements, did not have capacity to give a notice under clause 7, then the Agreements would create commercially unsound results: the original licensor (IBD1), which might well have been dissolved or wound up many years before, would possess the only right to invoke clause 7, despite the fact that the breaches by the licensee (the defendant) cause damage only to the copyright owner (the claimant), and it is only the claimant who has any commercial interest in the invocation of clause 7, because it is to the claimant (and only to the claimant) that the relevant rights revert upon termination of the Agreements. Thus, he submitted, it is seriously arguable that the letter sent by the claimant to the defendant on 4 November 2003 was a valid notice under clause 7.
28. In addition, Mr Houseman argued that the claimant was entitled to seek permission to serve Amended Particulars of Claim to reflect new factual information, although not to alter its cause of action (Grupo Torras SA v Al-Sabah [1995] 1 Lloyd's Rep 374). Such amended Particulars, he suggested, would enable it to make extended arguments in support of its title to sue and right to issue default notices (and authorities to the contrary, such as Smith v Henniker-Major & Co (a firm) [2003] Ch 182, could be distinguished on the facts as being concerned with title transfers taking place after the commencement of proceedings).
29. In response to these arguments, Mr Gerrans, on behalf of the defendant, made detailed submissions on the facts and on the relevant law, for the purpose of demonstrating that the claimant had no reasonable prospect at trial of succeeding in relation to any of the above issues. I accept that the burden is on the claimant to satisfy the Court that it does indeed have a reasonable prospect of success in relation to its claims. It is no discourtesy to counsel that I do not set out, in this judgment, his detailed submissions which were all carefully rehearsed both orally and in his two written skeleton arguments.
30. The legal arguments advanced by both parties at the hearing confirmed that the relevant legal issues are not straightforward. Some involve controversial and often novel points of law. More importantly, the resolution of many of the legal issues depends on a prior determination of genuine disputes of fact. Having heard the arguments, I am satisfied that the claimant has discharged the burden of satisfying the Court that it does indeed have a reasonable prospect of success in relation to the undoubted causes of action that it has against the defendant.
31. In particular, I consider that it is seriously arguable, in the light of the judgment of Peter Gibson LJ in Three Rivers District Council v Bank of England [1996] QB 292, in particular at pages 307F – 315F, and the provisions of the 1956 Act and the 1988 Act referred to in Mr Houseman's post-hearing submissions, that the claimant, even if it had not given written notice of the assignments at the time of its service of default notices under clause 7 of the Agreements, was indeed in a contractual relationship with the defendant, such as to entitle it, in its capacity as legal proprietor of the Titles, to serve such notices. Otherwise there would be an imbalance between the position of the assignee/ new licensor on the one hand and the licensee on the other; thus, for example, the latter, as exclusive licensee, would be entitled to exercise its rights under the Agreements against the latter under section 92(2) of the 1988 Act, irrespective of the formality of written notice, but the assignee/new licensor would not, unless it had given prior written notice of the assignment of the licence agreements under section 136 of the Law of Property Act. In these circumstances it appears to me that it is seriously arguable that there are grounds for distinguishing Warner Bros Records Inc v Rollgreen Ltd [1976] 1 QB 430 (CA), which was the cornerstone of Mr Gerrans' arguments in relation to the termination issue. Moreover, as Peter Gibson LJ pointed out in Three Rivers, the decision in that case has been the subject of considerable academic criticism.
32. Accordingly, in my judgment, the claimant has satisfied this requirement of CPR 6.21(1)(b).

Most appropriate forum

33. In persuading the Court to exercise its discretion to allow service out of the jurisdiction, the onus of proof on the claimant in relation to this third requirement is not simply to show that the action could be tried in England, but that England is 'clearly' the most appropriate forum for the trial of the action, in the interests of the parties and the ends of justice; see Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, at 481 per Lord Goff.
34. Mr Houseman's submission on behalf of the claimant is that the relevant Agreements are governed by English law, and the claimant's entitlement to pursue its claims under these Agreements raises issues of assignment, formalities, notice, agency and estoppel, all of which are governed by English law and all of which involve events and evidence located in England (albeit not exclusively). The claimant's further suggestion that, if these claims were to be pursued in India, they would be subjected to delay and different procedural and substantive hurdles is not of itself material to the decision on the appropriate forum; see Konamaneni v Rolls Royce Industrial Power (India) Ltd [2002] 1 WLR 1269, 1287B-E per Lawrence Collins J.
35. The principal counter-argument put forward by Mr Gerrans, on behalf of the defendant, is that there are already various sets of proceedings in train in India as between the defendant and PEI, which indirectly impact on the termination issues. The first of these actions was begun by the defendant in 2000; it has not yet come to trial. A detailed chronology of the Indian proceedings was attached to Mr Gerrans' skeleton argument. However, although the Indian proceedings involve the defendant, they do not, as presently constituted, involve the claimant, nor do they involve any of the Titles with which these proceedings are concerned. Indeed, various of PEI's subsidiaries, not including the claimant, had been joined as parties to one Indian action brought by the defendant against PEI but were dismissed from the suit (although this ruling is currently under appeal). What the defendant is now seeking to do in the Indian proceedings, by an application dated 25 February 2005, is to join the claimant as an additional defendant to the defendant's principal action against PEI, in order to claim that, if the 97 Agreements have effectively been terminated by the claimant, then PEI is liable, under its alleged "Master" agreement dated 7 September 1983 with the defendant, to grant further licences to the defendant, and that the claimant, as successor to PHE and PHI, is also bound by the terms of the alleged 1983 agreement. For all these reasons it is contended that there will be an overlap of issues between the Indian proceedings and the English proceedings and that, since any default judgment in the English proceedings will not be enforceable in India, India is the appropriate forum.
36. In my judgment it is clear that, so far as the present Indian proceedings are concerned as between PEI and the defendant, there is no overlap of issues. Those are proceedings between different parties, raising different issues in relation to an agreement to which, on its face, the claimant is not a party. It was only in February 2005, long after the English proceedings were started, that the defendant sought to join the claimant as a party and allege that it was bound by the alleged 1983 agreement. I accept the submission of Mr Houseman that this can only be regarded as a tactical jurisdictional ploy to support the defendant's case in this court on appropriate forum. It is not anticipated that there will be any determination of this application before 7 July 2005. Moreover, there is no real risk of any overlap of issues or inconsistent findings between the English courts and the Indian Courts, as matters presently stand. Before the issues under the alleged 1983 agreement can be determined, there will have, in any event, to be a determination of the issues raised in the current English proceedings in order to establish whether the defendant's rights under the Agreements have determined. In my judgment these are eminently suitable for determination by the English court, since they will have to be decided by reference to English law and concepts. Nor do I think that I should be greatly impressed by the defendant's statement of intent that it will not enter an appearance here, if it fails in this application, and that accordingly no judgment against it will be enforceable in India. It is highly likely that the English proceedings will be resolved by the time the Indian proceedings are heard; it must be highly doubtful whether, once this court has indicated that it is retaining jurisdiction over the issues relating to termination of the Agreements as between the claimant and the defendant, that an Indian court would wish to embark on a determination of the same issues. Moreover, the fact that, as the defendant has effectively conceded in its November offer letter, the issues referred to in the last sentence of paragraph 7 above are issues that are going to be tried in the English proceedings in any event, is also a factor that weighs in the exercise of my discretion.
37. Accordingly, in my judgment, neither the existence of the current Indian Proceedings nor the contemplated Indian Proceedings suggest that India is clearly a more appropriate forum for this action, or that England is not the appropriate forum.

Non-disclosure in initial application

38. When the claimant made its initial application for an Order to serve out of the jurisdiction, it alerted the Court to the fact that the defendant might seek to challenge its title to sue, and indicated (correctly) that there were proceedings on foot in India involving the defendant, although not the claimant. A great deal more detail has emerged on both issues since that initial application was made. Nevertheless, there is no credible basis in the defendant's suggestion that the initial application was marred by any non-disclosure, intentional or otherwise, that was sufficient to affect the exercise of the court's discretion and so suggest that the Order should be set aside on this ground alone; see Konamaneni (above), 1301G-H per Lawrence Collins J. Accordingly, I reject the defendant's submissions in this respect.

Conclusion

39. For the reasons given above, the defendant's application to set aside the Order made by Master Foster on 19 December 2003 is refused. In my judgment the requirements of CPR 6.21 are satisfied and the defendant has failed to demonstrate that the action should be stayed on the grounds that England is not an appropriate forum, and India is a more appropriate forum, for determination of the relevant disputes between the parties. I shall also give permission to the claimant to amend the Particulars of Claim in the form, or substantially in the form, of the draft before me. I take the view that the amendment reflects new factual information and does not alter the nature of the claimant's cause of action.
40. After the handing down of this judgment, I shall hear arguments as to costs and as to whether, in the light of the copyright issues that have been raised and the issues of equitable assignment, it is more appropriate that this case should be transferred to the Chancery Division.
41. I am indebted to both counsel for their helpful written and oral submissions.