The High Court's judgment in Campeau v Gottex Real Asset Fund 1 (OE) Waste Sarl [2025] EWHC 2322 (Comm) provides guidance on the application of jurisdiction clauses in relation to third party rights and the effect of the Contracts (Rights of Third Parties) Act 1999 (the Third Party Rights Act) in this context.
This article first appeared in the Practical Law Dispute Resolution column on 24 October 2025. Reproduced from Practical Law with the permission of the publishers. For further information visit www.practicallaw.com.
Background
The dispute arose out of a sale and purchase agreement (SPA) of April 2019 between the defendant, Gottex Real Asset Fund 1 (OE) Waste S.À.R.L (OE Waste) (as seller), and Geco Holdco Ltd (as buyer), for the sale of Granville Ecopark Holding Company Limited (GEHCL). At the time of the SPA, the claimant, Mr Campeau, was a director of GEHCL.
Under clause 10.3 of the SPA, OE Waste warranted that it would not bring claims against "any Target Company" (including GECHL) or their directors, officers, employees, or agents. Clause 10.3 expressly provided that it was intended to benefit the Target Companies and those individuals for the purposes of the Third Party Rights Act.
Clause 18.2 provided for the exclusive jurisdiction of the courts of England and Wales for any dispute "which may arise out of or in connection with" the SPA, including "any dispute relating to any non-contractual obligations".
Unlike clause 10.3, clause 18.2 of the SPA did not, however, contain a provision stating that non-parties such as GEHCL or its directors could benefit from it.
The proceedings
In late 2023, OE Waste commenced proceedings in Luxembourg against Mr Campeau and others, alleging negligence and breach of duty (and indicating an intention to allege fraud) in relation to the SPA and the alleged sale of GEHCL at an undervalue.
In response, Mr Campeau contested the jurisdiction of the Luxembourg courts and issued English Part 8 proceedings seeking declarations and an anti-suit injunction based on clause 10.3 and the English jurisdiction clause in the SPA. He served these proceedings out of the jurisdiction without permission relying on CPR 6.33(2B), which OE Waste then challenged on jurisdictional grounds.
Issues
OE Waste argued that Mr Campeau was not entitled to serve the claim form out of the jurisdiction without permission in reliance on the jurisdiction clause, because he was not a party to the SPA, and there was no other basis (whether under the Third Party Rights Act or as a matter of contractual construction) for him to be treated as a party to or permitted to rely on the exclusive jurisdiction clause.
The court concluded that neither the CPR, nor the 2005 Hague Convention required that Mr Campeau should be a party to the exclusive choice of court agreement.
The court then went on to consider whether Mr Campeau had a good arguable case that his claims fall within the ambit of the jurisdiction clause.
The court's reasoning on contractual construction
After consideration of the authorities, the court stated that leaving aside the statutory effect of the Third Party Rights Act, "the answer to the question of whether a jurisdiction clause covers claims by or against a non-party depends only on an exercise of contractual construction and implication". In the absence of express words as to the jurisdiction clause extending to claims by and against third parties, the starting point in interpreting a jurisdiction clause is that only the parties to the contract are covered. But, "the issue is nevertheless one of construction, which is to be conducted on a conventional basis."
The court found that the language of clause 18.2 was very broad, covering "any dispute which may arise out of or in connection with this deed (including any dispute relating to any non-contractual obligations". This breadth was sufficient to encompass disputes by and against third parties and a dispute between a party and one of the non-parties specified in clause 10.3 as to the effect of that clause would be a dispute which arises out of or in connection with the SPA.
The court also considered commercial coherence, noting that the SPA was designed to protect the acquired group and its officers from claims by the seller. It would make little sense, the court reasoned, for such claims to be litigated in courts different from the English courts, which the parties had chosen by virtue of clause 18.2. Further, the buyer could enforce clause 10.3 in England; it would be anomalous if a protected officer could not do the same.
The court concluded that there was a good arguable case that clause 18.2 applied to disputes about third-party rights under clause 10.3 and that the parties had agreed that such a dispute would be subject to the jurisdiction of the English courts. Accordingly, the case fell within CPR 6.33(2B)(b), and, in the court's view, also (a) and (c).
The court's findings on the Contracts (Rights of Third Parties) Act 1999
In light of the court's conclusion on the construction of the contract, it was not necessary for it to consider the effect of the Third Party Rights Act. However, the court decided to address the point.
The court found (thus, obiter) that there was a good arguable case that section 1 of the Third Party Rights Act, coupled with clauses 10.3 and 18.2 of the SPA, meant that Mr Campeau was obliged to bring any action seeking to enforce his rights under clause 10.3 in accordance with the exclusive jurisdiction clause in clause 18.2.
Section 1(4) of the Third Party Rights Act provides that, "This section does not confer a right on a third party to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract."
The court considered that clause 18.2 was wide enough to include a dispute as to the term relevant to the third party's claim, and on the facts was therefore a "relevant term": Mr Campeau was bound by it.
Consequently, for the purpose of CPR 6.33(2B)(b), the SPA "contains a term to the effect that the court shall have jurisdiction" to determine Mr Campeau's claims, or that Mr Campeau's claims are "in respect of" such a contract, for the purpose of CPR 6.33(2B)(c).
Outcome
The court dismissed OE Waste's application to set aside service of the claim form. Additionally, the court extended the validity of the claim form to allow permission to serve out to be sought if necessary, noting that there was a likely gateway under PD 6B paragraph 3.1(6)(c).
Key takeaways
This case provides several important lessons for litigators and contract drafters, including:
- To avoid uncertainty, state expressly whether jurisdiction (and arbitration) clauses apply to third-party beneficiaries and to what extent.
- The use of broad wording such as "arising out of or in connection with" increases the likelihood that third-party disputes connected with the conferred benefit will fall within the scope of the jurisdiction clause.
- For service out of the jurisdiction without permission under CPR 6.33(2B), the claimant's non-party status is not fatal. Here the question of contractual interpretation is key.
- Consider anti-suit strategies at an early stage where protected entities are sued overseas in breach of a no-claims undertaking governed by an English jurisdiction clause.