In Denning v Arcem Resources Limited [2026] EWHC 2426 (Ch), the High Court upheld the Defendants’ challenge to its jurisdiction under CPR Part 11. It found that the Claimant had not established a good arguable case that a side letter containing an exclusive English jurisdiction clause was supported by consideration.

The Claimant sought to rely on that clause to serve his claim under a loan agreement out of the jurisdiction without permission under CPR 6.33(2B). To do so, he needed a good arguable case that the side letter as a whole was a contract. He argued that his forbearance from suing after the side letter was signed amounted to consideration. The Court disagreed, holding that “bare forbearance is incapable of amounting to consideration”. There must be a causal link: the Claimant must have forborne “on the strength” of the Defendants’ promise. Here, he had supplied no evidential basis for that link beyond “the bare sequence of events”.

Nor did the mutual promises in the jurisdiction clause themselves provide consideration: such a clause “cannot on its own constitute consideration for a contract that otherwise lacks it”. The Court did, however, grant the Claimant’s alternative application, heard ex parte, for permission to serve out on the basis that the loan agreement is governed by English law.

Enyo Law acted for the Defendants, instructing Niranjan Venkatesan KC and Joe Johnson of One Essex Court.

Should you have any questions, please contact Daniel Levy, Konrad Rodgers, Oliver Rule, Deborah Tillett or Liam Baum.