SIMON BROWN LJ: This is a defendant's application for leave to appeal
against the order of Mr Simon Goldblatt QC sitting as a Deputy Judge of
the High Court made on 14 April 1994, allowing the plaintiff company's
appeal against the order of a District Judge made in Northampton on 22
February 1994, setting aside the plaintiff's writ.
The defendant is an Italian company, resident within a contracting state of
the European community. The central question before the Judge on appeal
was whether the plaintiff's claim falls within para 1 of art 5 of the Brussels
Convention 1968, a Convention made law by the Civil Jurisdiction and
Judgments Act 1982, to which it is scheduled.
Other questions too were raised before the Judge below, but no longer
need be referred to for the purposes of determining the present
application.
Article 5, so far as material reads:
"A person domiciled in a Contracting State may in another Contracting
State be sued:
(1) in matters relating to a contract in the courts for the place of
performance of the obligation in question."
Order 6 r 7(1) provides, so far as relevant:
"No writ which is to be served out of the jurisdiction shall be issued
without the leave of the court unless it complies with the following
conditions, that is to say -
(a) each claim made by the writ is either -
(i) one which by virtue of the Civil Jurisdiction and Judgments Act 1982
the Court has power to hear and determine...
(b) where a claim made by the writ is one which the Court has power to
hear and determine by virtue of the Civil Jurisdiction and Judgments Act
1982, the writ is endorsed before it is issued with a statement that the
Court has power under that Act to hear and determine the claim, and that
no proceedings involving the same cause of action are pending between
the parties in Scotland, Northern Ireland or another Convention territory."
The questions, apparently, therefore, to be asked are whether the
plaintiff's claim made by the writ arose in a matter relating to a contract,
and, second, assuming so, whether the relevant obligation fell to be
performed in England.
I turn at once to the Statement of Claim endorsed on the writ, noting as
I do so that the writ is endorsed also with a statement complying with
Ord 6 r 7(1)(b). The Statement of Claim, at page 12 of the bundle, reads
thus:
"STATEMENT OF CLAIM
The Plaintiff's claim is for
1. Damages for goods sold and delivered in the sum of #64,239.80.
2. Interest under clause 5.3.3 of the contract at the rate of 4% above B.
Bank base rate from time to time.
Particulars
Invoice Amount Cumulative Payment Rate Of Interest
(#) Amount (#) Due Interest (#)
E1459 139.10 139.10. 01.09.92 Sept 92-16% 1.85
Oct 92-13% 1.51
E4175 13,475.00 13,614.10 15.11.92
E1539 24,419.00 38.033.10 15.11.92 Nov 92-12% 380.33
E1656 26,092.00 64,125.10 17.12.92 Dec 92-12% 641.25
1739 114.70 64,239.80 02.01.94 Jan 93-11% 642.40
Feb 93-
Jan 93-10% 3,212.00
4879.34"
It may be noted that the last date in the fifth column should clearly be
January 1994 not 1993.
On any view, as was recognised below, that Statement of Claim is ineptly
drawn. It had indeed been amended by the plaintiff after service, but such
amendment was held by the Judge, to my mind rightly, to be ineffective
for present purposes: such amendment could not cure any defect in the
service of the original writ, if indeed it was defective.
The amendment sought was no more than to change for the opening two
words of para 1 from "Damages for" to "Price of". The great question
for the Judge was: did that inept drafting, the reference to "damages
for goods sold and delivered" rather than the "price of goods sold and
delivered", matter? Did it destroy the validity of the writ for the purposes
of art 5(1) and service under the rules?
The Judge held not. At page 5 C of the transcript he put it thus:
"When the defendant in Italy received this document he can have been
in no doubt whatsoever that he was being sued for the unpaid price of
goods which it was being said had been invoiced and delivered to him.
The language in which that claim was asserted is inept, but the effect of
the writ would have been crystal clear to its recipient. It follows that that
writ falls to be treated, as between the plaintiff and the defendant, as one
in which the defendant is being summoned to pay for goods which he has
received and for which he has not paid."
A little later in his judgment, at page 6 F, he said this:
"...three things stand out. The first is that the price of the goods was
invoiced in Sterling. The second is that such payments as were made by
the defendant were made in Sterling to the plaintiff's bank in England.
Thirdly -- and this is not challenged by the defendant -- in the absence of
anything else English law says that the obligation of the debtor is to seek
out his creditor.
At the end of the day this case comes down to a very simple position. The
defendant in Italy knew that he was being sued for the price of goods sold
and delivered when he received this writ and the contract or contracts
under which the price of the goods sold was claimed called for payment in
England. Those two matters are enough to bring the case unequivocally
within Article 5(1) of the Convention."
The pleaded grounds of appeal which by this application the defendant
seeks leave to advance are essentially twofold; first it is said that the
Judge should have concluded that the writ, as drafted, disclosed no
reasonable cause of action. Second, it is said that:
"If any 'obligation' was disclosed in the Writ, it was an inchoate obligation
to pay 'damages', and it could accordingly not be inferred either that (a)
the said obligation was 'a matter relating to contract' within Article 5(1),
or (b) that the place of performance of that obligation was England."
Clearly, those are to some extent related grounds, and what essentially
both come down to is this, that the Court is bound to look only at the
letter of the pleading, and to decline to seek to discover what in context
that letter actually means.
So far as that goes, in common with the Deputy Judge below, I for my
part would reject the argument outright. It involves altogether too slavish
an approach to the literal language of pleadings; it invites the Court to
eschew the use of its common sense. I have not the least doubt that this
claim could only have been understood as a claim for the price of goods
sold and delivered. Transparently, it was that, no more and no less. The
inept reference to damages cannot possibly have misled the defendant,
least of all in the context of particularised invoices which detailed prices,
dates due, and the like.
So much for the pleaded grounds. Before us today, however, Mr Saini,
who has only recently come into this case, seeks to expand the scope of
the proposed appeal. To that end he has helpfully supplied us with a draft
skeleton argument. The essential further point that he seeks to advance
is this; that it is necessary in the body of the pleaded claim to assert not
merely that the claim arises out of a contract, but also – and this is the
second limb which has to be satisfied to bring the matter within art 5(1)
– that the obligation in question here the payment of the price of these
goods, falls to be performed in England. That, of course, is not stated in
the present Statement of Claim although it was found satisfied because
of the unchallenged principle of English law to which the Judge below
referred.
In support of his argument that it must be specifically pleaded within the
writ, Mr Saini seeks to rely on the language of Ord 6 r 7(1) (to which I
have already referred) and of Ord 11 r 1(2), which I need not recite.
Speaking for myself, however, I am quite unable to find within the express
provisions of those rules any such requirement as he contends for.
Nowhere is it said that, not merely must the claim made by the writ be
one within the relevant Article, but each and every feature of the claim
which brings it within that jurisdiction must itself be specifically pleaded.
As my Lord pointed out in the course of argument, rather than there
being any such obligation to elaborate the particulars of the claim, Ord 6 r
7(1)(b) instead provides for certification of the Court's power to hear and
determine the claim.
I, for my part, therefore, am wholly unpersuaded that there is any
additional (hitherto unpleaded) ground of appeal available to the
defendant/applicant.
I add only this; as Mr Saini concedes, the present application is advanced
purely as a point of principle. Of course, if it were a good point, all well
and good, but to my mind it certainly takes on no added attraction
on that account. Counsel concedes that there would in any event be
nothing to preclude the plaintiff company here from starting afresh with
a more elaborately drafted pleading, which they could then serve on the
defendant. There is accordingly no reason why this Court should be over-
impressed by the jurisprudence emphasising that only exceptionally may
defendants be sued against their will in a member state other than that of
their own domicile.
That, however, is by the way. For the reasons earlier given there appears
to me no worthwhile argument available to the defendant in this matter,
and I would accordingly refuse leave to appeal.