„(…) GLIDEWELL L.J.:
[1] I will ask Hirst L.J. to give the first judgment.
HIRST L.J.:
[2] This is an appeal by the plaintiffs, Mr. G. and Mrs. G., against an order
of Mr. S., Q.C. sitting as a Deputy High Court Judge of the Queens Bench
Division on 13 November 1991, whereby it was declared this Court has
no jurisdiction over the second defendant, Dr. C., in respect of the subject
matter of the claim, or the relief sought in the action, and as a result
ordered that the action as against the second defendant be dismissed
with costs. The appeal is brought by leave of the deputy judge himself,
and the question at issue is whether, under the provisions of the Brussels
Convention on Jurisdiction in Civil and Commercial Matters, the Court has
jurisdiction over the second defendant, who is a veterinary surgeon and
who is domiciled in Germany. The first defendant, Mr. P. is domiciled in
this country, and no problem arises in his case.
[3] The action was begun against the first defendant alone on 31 May
1990, and it was only after the service by the first defendant of his
original defence, which has since been amended on 17 July 1990, that
the plaintiff issued his summons to add the second defendant, and
that summons was dated 6 September 1990. In fact, the basis of the
application at that juncture under Order 11 was unsound because if the
plaintiff has a good claim against the second defendant over which the
court has jurisdiction then he can serve the writ under the terms of the
Convention.
[4] The reason for the application to join the second defendant was that
the first defendant's defence both denied liability and implicated the
second defendant in the decision to buy the horse, which is central to the
facts of the present case, as I shall shortly make clear.
[5] The second defendant was represented in the court below before
the deputy judge, and indeed successfully contested the summons as
a result of which the learned judge gave the judgment in his favour. He
did, however, a few days ago, indicate to the Court that he would take
no further steps in this appeal, and he has also addressed a letter to the
Court, dated 17 May, which states as follows:
I do not intend to make use of counsel for the Respondent in the Court
of Appeal due to the factual and legal situation, and I ask the court to
dismiss the Appellant's appeal ex-officio. In this I rely on the convincing
statements from the High Court judgment of 19 November 1991 and the
submission of Messrs. Biddle & Co. of 30 December 1991.
[6] The reference to Messrs. Biddle and Co.'s submission relates to a
cross- notice which raises one further point on which the learned Judge
found in the plaintiff's favour, and I shall be dealing with that point in its
appropriate context later in the judgment.
[7] Notwithstanding the second defendant's decision not to contest the
matter, since this issue is a question of the Court's jurisdiction under the
Convention, it would clearly be wholly inappropriate to decide this case on
the footing that the appeal succeeded by default.
[8] The facts are very conveniently summarised by Mr. Burton in his
skeleton argument and his chronology. The plaintiffs, Mr. and Mrs. G.,
were interested in purchasing two horses, one of which, O., was to be for
their daughters E. for riding in show jumping, and it is this horse only with
which the present case is concerned.
[9] The plaintiffs instructed the first defendant, Mr. P., to act in connection
with the purchase, and in January 1989 he informed them that he had
found a suitable show jumper at the stables of a M. F. near Paris. The
horse was tried out, and in late January or early February the plaintiffs
instructed Mr. P. to obtain a veterinary report on the horse, negotiate its
purchase, if appropriate, to arrange for its transportation to England.
[10] Mr. P. then engaged the second defendant Dr. C., who, as already
noted, is a veterinary surgeon resident in Germany, to travel to France
and report inter alia on the horse O. for the purpose of deciding whether
that horse should be purchased. Dr. C. produced a written report, to
which I will refer in a little more detail in a moment, which revealed
a problem with the navicular bone in the horse's right front foot. That
report was dated 9 February 1989, and was sent in English by Dr. C. from
Germany to England for the attention of Mr. P., and stated in the key
sentence, which is vital to the present case:
The right front navicular bone shows a central decalcified area.
[11] It is Mr. P.'s case, and critical to the present application, that upon
receipt of that written report he had a telephone conversation with Dr.
C. for the purpose of explanation or interpretation of the report in this
regard, and that in the course of that telephone conversation Dr. C. orally
reassured Mr. P. by telling him that the problem was not serious.
[12] Mr. P. consequently advised the plaintiffs that they did not need to
be concerned about the defect, and that it did not justify a reduction of
the purchase price which had been agreed at £75,000. In the event, after
the horse had been brought to England it went lame as a result of the
defect within only two months of its purchase, and it is the plaintiffs' case
that it lost all but £3,000 of its value as a result of the defect, and that in
addition they suffered further substantial loss and damage.
[13] The learned judge held in a nutshell that the case was governed by
Article 2 of the Convention, which provides that persons domiciled in a
Contracting State shall be sued in the courts of that state, and he rejected
the plaintiff's submission that the exceptions to that rule, laid down in
Articles 5(1), 5(3) and 6(1) of the Convention, were applicable.
[14] The learned judge gave a full and detailed judgment on all the points
at issue, but it is manifest that if the plaintiffs can bring themselves within
any one of the three exceptions the Court has jurisdiction to hear the
case against the second defendant under the terms of the Convention.
Since it seemed to the Court, having read all the papers, that Mr. Burton's
case was at its strongest and most concise under Article 6(1), we invited
him to concentrate his argument on that article. Article 6(1) provides as
follows:
A person domiciled in a contracting state may also be sued... [and then
sub-paragraph (1), which is the critical one]... where he is one of a
number of defendants in the courts for the place where any one of them
is domiciled.
It is Mr. Burton's central contention that since the first defendant, Mr. P.,
is domiciled in England, that Article, in accordance with the interpretation
which has been placed on it both in the Jenard Report, and also in the
European Court of Justice in a case called Kalfelis, to which I shall be
referring in a moment, this can fall within the ambit of that paragraph,
and the plaintiffs are therefore entitled to sue Dr. C. in England.
[15] The Jenard Report, to which of course this Court is permitted to
refer under section 3 of the Civil Jurisdiction and Judgments Act 1982 as
an aid to construction, states as follows, at pages 26 to 27: 1. In order
for Article 6(1) to be applicable there must be a connection between the
claims made against each of the defendants, as, for example, in the case
of joint debtors.
2. An action cannot be brought against one defendant solely with the
object of ousting the jurisdiction of the courts of the state in which the
other defendant is domiciled.
3. Jurisdiction derived from the domicile of one of the defendants was
adopted by the committee of experts because this makes it possible to
obviate the handing down in the contracting states of judgments which
are irreconcilable with each other.
[16] That principle was adopted by the European Court of Justice in the
case of Kalfelis v. Bankhaus Schröder Münchmeyer Hengst and Co. At
page 5583 the European Court stated as follows:
The principle laid down in the Convention is that jurisdiction is vested
in the courts of the state of the Defendant's domicile, and that the
jurisdiction provided for in Article 6(1) is an exception to that principle. It
follows that an exception of that kind must be treated in such a manner
that there is no possibility of the very existence of that principle being
called into question.
[17] They then referred in terms to the Jenard Report, and proceeded as
follows:
The rule laid down in Article 6(1) therefore applies where the action
brought against the various defendants are related when the proceedings
are instituted. That is to say, where it is expedient to hear and determine
them in order to avoid the risk of irreconcilable judgments resulting
from separate proceedings. It is for the national court to verify in each
individual case whether that condition is satisfied.
Those last words are, of course, important as they show it is for this
Court, as the national court seized of the decision, to decide on the
particular facts of this case whether the conditions laid down by the court
are satisfied.
[18] May I say at once that there is no question here, and it could not
even be reasonably suggested, that this action has been brought against
Mr. P. with the object of ousting the jurisdiction of the German courts. As
already mentioned in my brief recital of the history of the case, the action
was originally brought perfectly properly and regularly against the first
defendant alone, and it was only when the first defendant implicated the
second defendant in his defence that the decision was taken to join the
second defendant.
[19] It follows that the questions we have to consider in the present case
are twofold:
(1) Are the claims against the various defendants connected or related?
(2) Is there a risk of irreconcilable judgment resulting from separate
proceedings?
[20] In order to answer those two questions it is necessary first to
consider the facts and matters alleged in the pleadings in greater detail in
order to appreciate the inter-relationship between the claims against the
two defendants.
[21] In the statement of claim the following allegations are made against
the first defendant:
PARAGRAPH 8:
The first defendant acting on the plaintiff's behalf engaged the second
defendant, a veterinary surgeon, to examine and report upon O. The
second defendant contracted with the plaintiffs as disclosed alternatively
undisclosed principals. The second defendant knew or sought reasonably
to have known that the examination and report were required by a
potential purchaser of the horses.
PARAGRAPH 9:
It was the implied term of the said engagement that the second
defendant would exercise reasonable skill and care in the examination of
O. and in the preparation of the report thereon, and/or in advising the
plaintiffs or their agent, the first defendant, on the condition of O. and its
suitability to purchase.
PARAGRAPH 11:
The plaintiffs admit and aver that
(1) On or about 9 February 1989 the second defendant sent by facsimile
to the plaintiff's office for the attention of the first defendant a report
on the two horses which stated inter alia in relation to O. 'the right front
navicular bone shows a central decalcified area.' Neither of the plaintiffs
saw the report until after O. had been purchased.
(2) The first defendant telephoned Rachel G. on about 9 February and
informed her that the second defendant's report, referred to above,
showed that there was a problem with the navicular bone of O.'s right
front leg.
(3) The first defendant told Rachel G. that according to the second
defendant the problem was not a serious one.
[22] Then it is said that in reliance on the first defendant's advice and/
or the second defendant's report the horse was brought for the sum of
£75,000.
[23] It is then alleged that the horse was not suitable by reason of the
defect for a show jumper, nor reasonably fit for the purpose for which he
was purchased.
[24] There follows an allegation of negligence in paragraph 13C against
the first defendant that he:
(1) Failed to warn the plaintiffs of the serious or potentially disastrous
nature of the condition known as navicular.
(2) Failed to warn the plaintiffs that the condition was liable to render O.
worthless or practically worthless as a showjumper.
(5)... and this is critical... relied upon the report, and/or the advice
of the second defendant when he knew or ought to have known that
the contents of the second defendant's report was inconsistent with
the advice that the condition was not serious, and/or the insurance
certification.(7) Advised the plaintiffs there were no grounds upon which a
reduction in price could be negotiated.
(8) Failed adequately or at all to instruct a veterinary surgeon to provide
an opinion on whether or not O. was suitable for purchase as a nationally
or internationally competitive showjumper.
At paragraph 14:
In breach of the implied terms referred to above and/or negligently
the second defendant's examination and/or report and/or subsequent
explanation of the report to the first defendant was inadequate and/or
wrong and/or misleading.
The particulars of negligence as against the second defendant made
various assertions concerning the radiologist's x-rays, which I do not need
to refer to, and then proceeded as follows:
(4) Advised the plaintiffs and/or the first defendant on their behalf that O.
was suitable for insurance purposes.
(5) Failed to advise the plaintiff and/or the first defendant on their behalf
of the consequences of his findings in relation to the front navicular bone.
(6) Failed to advise the plaintiffs and/or the first defendant on their behalf
that the condition was potentially disastrous.
(7) Advised the plaintiffs and/or the first defendant on their behalf that
the condition was not serious or was insignificant [that is a reference to
the telephone conversation to which I have already referred].
(8) Failed to advise the plaintiffs and/or the first defendant on their behalf
that O. was not suitable for national or international showjumping for the
purchase.
[25] There are then pleas of consequential loss and damage which I do
not need to refer to.
[26] The relevant parts of the first defendant's defence, starting with
paragraph 7 on page 24 are:
The report of Dr. C. was supplied to the plaintiffs and to the [first]
defendant prior to purchase. Dr. C. also provided a certificate to the
plaintiffs that there were no objections to insuring that horse, the [first]
defendant having previously advised that the horse should be insured.
Now a critical paragraph:
(8) Upon receipt of the report the [first] defendant spoke with Dr. C. by
telephone, and was advised by him that the findings in relation to the
right front navicular bone were not significant in a nine year old horse.
(9) It is admitted that Rachel G. asked the [first] defendant whether
in the light of the report a reduction in the purchase price should be
negotiated. The [first] defendant stated that as Dr. C. had stated that the
findings did not indicate a problem, there were no grounds for a price
reduction. It is denied that the [first] defendant was asked to express an
opinion on the merits of the purchase or on the soundness of the horse.
(10) It is denied that the plaintiffs purchased O. in reliance upon any
advice by the [first] defendant as to its soundness. The only advice upon
which the plaintiffs rely in relation to the horse's soundness was that
which emanated from Dr. C., including his certificate that there were no
objections to insuring the horse.
(11) In answer to the allegations of negligence the [first] defendant
avers:
(a) That the [first] defendant and the plaintiffs were entitled to rely upon
the expert opinion and certificate of Dr. C..
(b) That the [first] defendant had no qualifications to enable him to
express an opinion on the merits of Dr. C. as findings and certificate.
(c) That the [first] defendant had no grounds to believe that the finding of
Dr. C. indicated that there was a serious defect in the horse rendering it
liable to lameness at any time, and unsuitable for showjumping.
11B.... Further, the plaintiffs did not rely, or it was unreasonable for them
to rely, on the skill and judgment of the seller. The plaintiffs relied on the
advice which emanated from Dr. C. who had carried out an inspection on
O.
[27] All that is spelt out in considerably greater detail in the affidavits
sworn on the plaintiff's behalf, which I do not need to read, but I should
mention two other documents just very briefly at this stage; first, at page
79, a report by an independent veterinary expert, Mr. L., Batchelor of
Veterinary Medicine, Ph.D. M.R.C.V.S., which criticises Dr. C.'s reports,
and says that, in effect, with the trouble diagnosed in the navicular bone
he should have appreciated that the horse was a bad prospect as a show
jumper.
[28] Then there is a letter on page 127 from Dr. C., dated February 15,
1989, stating in terms: 'There are no objections in order to insure the
horses,' one of the two horses being O..
[29] The learned deputy judge's conclusion on Article 6(1) so far as
relevant was as follows:
Application of Article 6(1)
The interpretation of Article 6(1) is to be determined in accordance with
the principles layed down by any relevant decision of the European court
to giving appropriate weight to the Jenard report.... The starting point
in my judgment is that Article 6(1) represents a derogation from an
exception to the general rule in Article 2 that a person domiciled in a
contracting state is prima facie to be sued in the courts of that state.
Article 6(1) must therefore be interpreted strictly.
The European Court of Justice, in dealing with the meaning of Article
6(1) in Kalfelis and in dealing with other derogations of Article 2, and
then some authorities are cited, 'has emphasised the need to avoid the
multiplication of the bases of jurisdiction under the Convention. One
quotation from the European Court of Justice in Somafer will suffice to
illustrate this fundamental point:
'Multiplication of the bases of jurisdiction in one and the same case is
not likely to encourage legal certainty, and the effectiveness of legal
protection throughout the territory of the community, and therefore
it is in accord with the objective of the Convention to avoid a wide
and multifarious interpretation of the exceptions to the general rule of
jurisdiction contained in Article 2.'
In my judgment, therefore,(1) the Article 6(1) exception must be
construed and applied strictly so as not unduly to derogate from the basic
principle of Article 2. The liberal approach adopted by the English courts
when applying order 15 rule 6 to the joinder of parties, or the test of
necessary or proper party under order 11 rule 1(1)(c), cannot be adopted
by analogy since that would be contrary to decisions of the European
Court of Justice in Kalfelis and other cases, including Somafaer.
(2) In order to conform with the decisions of the European Court of
Justice the right approach is to determine whether there is a real and
substantial risk that separate trials of the claims against the defendants
will result in irreconcilable judgments so as to bring the case within the
Article 6(1) exception.
(3) In many cases it will be only the legal consequence of the separate
judgments that will give rise to a real risk of irreconcilability, but the
courts must look at the substance of the claims against the different
defendants and assess the risk giving due weight to the possibility of
conflicting determinations of factual and other issues common to each of
the claims.
Adopting this approach I have looked at the substance of the G.s' claims
to see what risk there may be of irreconcilable or incompatible judgments.
In my judgment the risk is not such as to bring the G.s' claims against
Dr. C. within Article 6(1). The claims against Mr. P. and Dr. C. are related
in the sense that the claims concern the same horse. Both the claims are
based on alleged failure to use due care in assessing the condition of O.,
and Mr. P. was the agent through whom the G.s engaged the services of
Dr. C., but there is no substantial risk of irreconcilable on incompatible
judgments.
The claim against Dr. C. will turn on whether or not he used due care
when exercising his expertise as a vet in taking the x-rays and analysing
them. The claim against Mr. P. will turn on his selection of a vet, his
reporting of the vet's conclusions and whether, despite not being trained
as a vet, he ought to have appreciated that the navicular condition of O.
was a serious one.
The claims are separate ones, turning to a considerable extent on
different facts. The risk of irreconcilable judgments if the claims are heard
separately by courts in England and Germany is so small as to lead me
to the conclusion that the G.s cannot rely on Article 6(1) and cannot
proceed against Dr. C. in England. The only one of Mr. Purle's examples...
[of which a number were raised, including the telephone conversation]...
which appear to raise a serious question as to irreconcilability was his first
example; that is, inconsistent findings as to the soundness of O.'s leg.
However, this example has to be considered in relation to the different
cases being made against the two defendants.
The case against Dr. C. is based on his alleged breach of duty in taking
the x-rays and analysing them. The primary issue will relate to veterinary
expertise and as to what deductions a reasonably skilled and careful
person trained and experienced as a vet should have made from an
analysis of the x-rays.
The case against Mr. P., insofar as it relates directly to the condition of O.,
seems to be based on deductions he should allegedly have drawn from his
physical examination, given that he has long experience with horses but
has no training as a vet, and from learning of the navicular condition from
Dr. C.'s report, though in the context, Mr. P. alleges, of being assured by
Dr. C. that the condition was not serious.
In view of the quite different way that the G.s plead their case against the
two defendants, in my judgment the risk of inconsistent findings as to the
soundness of O. in any relevant way is not substantial, and anyway not
such to give rise to any real risk of irreconcilable judgment.
[30] It will be observed that the learned deputy judge clearly regarded
the two claims as connected, and in my judgment he was quite right in
that conclusion, since one only has to look at the pleadings themselves
to see how close is the connection between the two cases against the
two defendants. His ratio decidendi was, in essence, that there is no risk
of inconsistent findings, or at least an insufficient risk, to bring Article
6(1) into play, particularly in the light of his view as to the degree of
dominance held by Article 2 over the exceptions in the ensuing articles.
[31] Mr. Burton has submitted before us today that the learned judge's
approach was erroneous, because the learned judge gave too much
weight to Article 2; because he was wrong in his assessment of the
risk of inconsistent findings; and because he left out of the account, or
gave insufficient weight to, the critical issues concerning the telephone
conversation. It was on that conversation between the two defendants, as
pleaded both in the statement of claim and in the defence, that Mr. Burton
focused when putting forward his case as to the risk of inconsistent
findings.
[32] He submitted that clearly that conversation is an absolutely critical
factor in the case, since it is fundamental to the first defendant's defence
that he relied on the oral advice imparted to him in that conversation,
that the defect in the horse's leg which had been diagnosed was not
serious, and that he passed that advice on to Rachel G.
[33] In their case against the second defendant the plaintiffs specifically
rely on that telephone conversation, as amounting to negligence on the
part of Dr. C., having regard to the terms of his written report.
[34] Those submissions were developed by Mr. Burton in an analysis of
some passages in the judgment. Mr. Burton pointed out that there is
no reference at all to the telephone conversation in the learned judge's
summary of the relevant facts, and the relevant respective claims,
until the penultimate sentence, when he does refer to Mr. P.: 'being
assured by Dr. C. that the condition was not serious.' That, he submits,
downgrades what is the central point into a side issue, and also overlooks
the significance of that conversation in the case against Dr. C.. That, says
Mr. Burton, is underlined by these words of the judgment:
The claim against Dr. C. will turn on whether or not he used due care
when exercising his expertise as a vet in taking the x-rays and analysing
them.
[35] Mr. Burton says that then is a feature in the claim against Dr. C., but
much more important is the assurance which was allegedly given in the
telephone conversation, that even allowing for the diagnosis which had
been based on the x-rays, nothing serious was to be taken from it, and
that it was permissible to buy the horse at the price suggested, and also
to insure it.
[36] In my judgment those criticisms are valid, and are reinforced by the
judge's statement at the start of paragraph 41, where he says:
The only one of Mr. Purle's examples which appear to raise a serious
question of irreconcilability was his first example; that is, inconsistent
findings as to the soundness of O.'s leg
[37] In fairness to the learned deputy judge it may be that he was unduly
influenced by the fact that counsel then appearing for the plaintiffs put
the soundness of O.'s leg in the forefront of the potential area of conflict.
[38] I find Mr. Burton's argument in relation to the telephone conversation
compelling, and in my judgment that alone demonstrates very clearly the
risk of irreconcilable findings.
[39] In connection with that there might well be other possible areas of
conflict, e.g. in relation to contributory negligence.
[40] All these are issues of fact, and as I have already noted in my
quotations from the judgment, the learned judge held that a conflict of
fact, just as much as a conflict of law, may bring the provision of Article
6(1) into play.
[41] That is a point which was challenged by Dr. C. in the cross-notice
which was originally filed, which of course has not been addressed on his
behalf in this court today because he has not appeared. However, it is
only right, since it was referred to in that cross-notice, and since Dr. C.
referred to it in his letter of 17 May, that I should deal with the point.
[42] In my judgment the learned Judge was quite right in concluding that
Article 6(1) is applicable just as much to the risk of inconsistent findings
of fact as it is to the risk of inconsistent findings of law.
[43] In a judgment which I gave in the case of Barclays Bank v. the
Glasgow City Council, I concluded that this was the correct construction
of the Article, though nothing turned on that in the eventual outcome of
the case on Article 6(1) because I also concluded there was no risk in the
interest rate swaps case of such inconsistent findings of fact. That part
of my judgment has been upheld by the Court of Appeal in a judgment
which is yet an unreported by delivered on 19 May, 1993.
[44] There is, therefore, in my judgment clear authority in the Court of
Appeal that potential conflicting findings of fact are just as relevant for
Article 6(1) purposes as potential conflicting findings of law.
[45] Indeed, I would add two comments on that which seem to me
apposite. First, the risk of conflict in conclusions of law may be a serious
matter; if they involve a point of European law they may eventually
be reconciled on appeal to the European Court of Justice. Conflicting
findings of fact, on the other hand, are virtually impossible to reconcile
if different judges in different jurisdictions within the EEC, hearing and
seeing different witnesses, reach different conclusions which have hinged
on an assessment of the reliability of individual witnesses; and of course
the problem may be compounded in cases where there are different
procedures in the different national courts in the way in which they
hear the evidence and assess it. Moreover, different findings of fact also
frequently lead to different conclusions of law.
[46] For all these reasons it seems to me that the cases against the
two defendants here are so closely interwoven, and the telephone
conversation in question is so central to the determination, not only of the
second defendant's liability but also of the first defendant's liability, that
the risk of inconsistent findings is to be taken particularly seriously.
[47] In my judgment, therefore, this is a case where Article 6(1) applies
and to use the words of the European Court of Justice in the Kalfelis case:
The Plaintiff has in my judgment succeeded in verifying the conditions laid
down in Article 6.
[48] Finally I wish to say a word about the judge's approach to Article
6(1) and the other exceptions in the other rules which follow upon Article
2. Undoubtedly Article 2, which requires the domicile of the defendant to
govern jurisdiction, is the basic provision, and the succeeding Articles are
exceptions which must not be given an unduly wide or loose construction
so as to destroy the Article 2 principle; but it does not follow that the
exceptions, including Article 6(1), are so subservient that they could only
be invoked in special circumstances. Indeed, in my judgment, once a case
is brought fairly and squarely within Article 6(1), the plaintiff, in the words
of the article itself:
may sue, or the defendant may also be sued, in that jurisdiction.
[49] That conclusion is, I think, underlined by Mercury Publicity Limited
v. Wolfgang Loerke, which is a decision of another division of this court,
which consisted of Purchas, Stocker and Russell L.JJ. The Article there in
question was Article 5(1), which is another of the exceptions, but exactly
the same point applied mutatis mutandis to Article 6(1); at page 154
Purchas L.J. stated:
A plaintiff claiming for breach of contract has an option under Article 2
and Article 5(1) to sue the Defendant either in the place of his domicile
or in the place of the performance of the obligation in question under
Article 2 and 5(1) respectively. Mr. Green relied on the reference to
Kalfelis by the European Court in Six Constructions Limited v. Kreischer,
submitted that Article 5(1) was in some sense in derogation from the
rights in Article 2, so that unless a clear and positive case was established
under Article 5 in a situation of ambiguity or uncertainty Article 2 would
prevail. I am not convinced that European law supports this submission
to the extent suggested by Mr. Green. Mr. Burton submitted there was a
freedom of choice in the Plaintiff to choose between the two options (see
the judgment of the court in Tessili v. Dunlop).
There follows a quotation from the European Court judgment in that case:
Article 5 of the Convention provides; a person domiciled in a contracting
state may in another contracting state be sued (1) in matters relating
to contract in the courts for the place of performance of the obligation
in question. This provision must be interpreted within the framework of
the system of conferment of jurisdiction under Title 2 of the Convention.
In accordance with Article 2 the basis of this system is the general
conferment of jurisdiction on the court of the defendant's domicile.
Article 5, however, provides for a number of cases of special jurisdiction
at the option of the Plaintiff. This freedom of choice was introduced
in view of the existence in certain well defined cases of a particularly
close relationship between the dispute and the court which may most
eventually be called upon to take cognisance of the matter.
[50] In my judgment that approach is fully apt to the present case,
and I stress the words 'option' and 'freedom of choice.' It follows that
where a potential conflict on this vital issue of fact has been so clearly
demonstrated by Mr. Burton in the argument, there must be an option,
which the plaintiffs are entitled to exercise under Article 6(1), to sue Dr.
C. as well as Mr. P. in this Court.
[51] Going back to the quotation from the Somafer case, on which the
learned deputy judge relied, it is perhaps worth noting that the result of
this appeal will, far from leading to a multiplication of proceedings, avoid
a duplication of proceedings both here and in Germany.
[52] In view of the very clear conclusion I have reached on Article 6(1)
it is unnecessary to consider the alternative cases advanced under
Articles 5(1) and 5(3) or might well have necessitated a reference to the
European Court of Justice, particularly seeing that the Court of Appeal in
the City of Glasgow Corporation case has recently referred the issues in
that case under those two articles to the European Court of Justice. For all
these reasons, I would allow this appeal.
ROCH L.J.:
[53] I agree.
GLIDEWELL L.J.:
[54] I also agree that the appeal should be allowed for the reasons given
by my Lord, Hirst L.J., with which I agree, with one sole reservation.
That is that for myself I would have wished to hear further argument
on the question whether the decision of this Court in Mercury Publicity
v. Wolfgang Loerke necessarily applies to the situation in this case,
where what we are considering is Article 6 rather than Article 5. I am not
disagreeing about that. I am merely putting up a marker that for myself
I would not have relied so strongly, as I think my Lord does, upon that
particular case. With that sole reservation, I totally agree, the appeal
should be allowed. (…)“
Appeal allowed with costs.