PRIVATE INTERNATIONAL LAW — jurisdiction — non-exercise of jurisdiction — preliminary discovery application — whether preliminary discovery application should be stayed or dismissed — whether preliminary discovery application captured by exclusive jurisdiction clause — interlocutory nature of preliminary discovery applications — whether application is a “dispute” or “claim” capable of being “settle[d]” — where second and third defendants not party to clause — whether non-parties may enforce exclusive jurisdiction clause — whether defendants waived right to rely on exclusive jurisdiction clause — discretionary considerations
PRELIMINARY DISCOVERY — elements of UCPR r 5.3 — whether plaintiff “may be entitled to bring a claim” — whether plaintiff made “reasonable inquiries” — whether plaintiff unable to obtain sufficient information — whether defendants have or have had possession of documents capable of assisting plaintiff in determining whether to commence proceedings — residual discretion
Quick Take
1An application for preliminary discovery under UCPR r 5.3 is not a 'dispute' or 'claim' to be 'settled' by the exercise of 'jurisdiction' within the meaning of an exclusive jurisdiction clause, because such an application does not involve the assertion or final determination of any pre-existing right and its interlocutory character means it does not 'settle' anything in the relevant sense — distinguishing clauses that prohibit 'proceedings' from those that confer exclusive jurisdiction over 'disputes' or 'claims'.
2A non-party to an exclusive jurisdiction clause who seeks a stay of proceedings against it must satisfy the Voth clearly inappropriate forum test, and contractual provisions excluding third-party enforcement rights (such as cl 7.12 of the BPA) may preclude a non-party from obtaining the benefit of the clause.
3Defendants who defend a preliminary discovery application on the merits — by filing substantive evidence, engaging in correspondence directed to the merits, and failing to file a motion to stay — waive their entitlement to rely on an exclusive jurisdiction clause to have the application stayed or dismissed, even where the point is raised belatedly in written submissions.
