BALCOMBE LJ: This is an application for leave to appeal from an order
made by Mr Justice Sheen on 24th July 1992 when he dismissed a third
party's application for an order that the third party proceedings be
stayed under Article 16(1)(a) of Schedule 1 of the Civil Jurisdiction and
Judgments Act 1982, which is normally called the Brussels Convention.
The facts, so far as relevant to this application, are that the plaintiff in the
main action, who was the boatswain on a roll on roll off ferry, sustained
personal injuries on 7th May 1986 when he was struck by a trailer whilst
walking down the ramp connecting the ferry to the quay at Dieppe. The
vessel concerned was owned by the first defendant, who employed the
plaintiff, and the trailer was driven by the agent of the second defendants.
They are a French company. They had the use of the ramp under an
agreement in writing dated 16th April 1984. The third party is, in the
English translation of that agreement, the C., a public body. Under that
agreement the recitals provide:
"Pursuant to Clause 23, on measures of detail, of the General Conditions
governing public equipment, the purpose of this Agreement is to lay down
the respective obligations of the C. and the Users [the second defendant,
called the Users in the agreement] as regard the utilisation of the ferry
ramps at the Port of Dieppe (...)"
Clause 1 provides:
"By way of exception to Clause 15 of the General Conditions, the C.
hereby undertakes to make the ferry ramp available to the User in
consecutive four-hour time slots, on the conditions laid down in the
General Conditions governing the concession, and on the conditions
hereinafter contained.
Clause 3
The C. hereby grants a priority right of use of the ferry ramp for the (...)
quay from 8.00 am to 12.00 noon and from 2.00 pm to 6.00 pm from
Mondays to Fridays."
I have not actually seen the general conditions in any detail, but it is the
contention of the third party that they contain provisions which on their
true and proper construction would exempt or exonerate the third party
from any liability in respect of the damages which had been awarded
to the plaintiff against the second defendant. I should mention that
judgment on liability was given in favour of the plaintiff as against both
defendants on 14th June 1991 apportioned as to 25 per cent to the first
defendant and 75 per cent to the second defendant. Essentially, in that
finding the judge held that the second defendant was liable in failing
to provide some form of segregation between pedestrian and vehicular
traffic on the ramp. The third party, on my understanding, of its own
volition took no part in the main action because by then it had issued a
summons, that the third party proceedings in the action be stayed under
the provisions of Article 16 of Schedule 1 of The Brussels Convention and
it was that summons that came before Mr Justice Sheen on 24th July
of last year. Article 16(1) of The Brussels Convention is in the following
terms:
"The following courts shall have exclusive jurisdiction, regardless of
domicile:
(1) in proceedings which have as their object rights in rem in, or
tenancies of, immovable property, the courts of the Contracting State in
which the property is situated (...)"
The judge held on the evidence before him – and this is now accepted
by the second defendant – that the ramp is immovable property. So
the issue really is, do the third party proceedings have as their object
a tenancy of immovable property in France? That seems to me at the
moment to raise two issues, both of which the judge decided against
the third party, namely, does the 1984 agreement create a tenancy of
the ramp and, secondly, do the third party proceedings have as their
object a tenancy of the ramp which Mr Geddes, for the third party before
me, submits really must mean: does the principal subject-matter of the
proceedings fall within the Article? In reliance on that he relies both on
a passage in O'Malley and Layton on European Civil Practice, and also a
passage from the commentary by Professor Jenard which is expressed to
be authoritative in this context. For present purposes I am prepared to
accept that that is a proper way of interpreting the Article, namely, is that
the principal subject-matter of the third party proceedings?
As I have said, the third party proceedings are a claim by the second
defendant for contribution, or indemnity, from the third party in relation
to the damages suffered by the plaintiff in the action. As I have already
said, that relates essentially to the pattern, in so far as the third party
had any responsibility for it, of vehicular and pedestrian traffic on the
ramp.
As a matter of English law, if that were material, I have no doubt at all
that the 1984 agreement does not create a tenancy within English law. It
is at most a licence to use the ramp at particular periods and is not even
the kind of licence which approaches a tenancy which the House of Lords
had to consider in Street v Mountford [1985] AC 809, [1985] 2 All ER
289. But I am by no means certain that English law is really relevant in
this context. I think in this context, since the Article refers to tenancies of
immovable property, it would be a tenancy according to French law unless
there is some supra-European meaning for which Mr Geddes contends.
As a matter of French law, Mr Justice Sheen heard evidence from French
lawyers and came to the conclusion, on hearing that evidence, that the
1984 agreement was not a tenancy of the ramp within the meaning of
French law essentially for two reasons: first, because it was not a tenancy
in the normal sense of that word in French law; I hasten to say that
French law does not use the word "tenancy"; it uses the word "bail" – but
I think it is clear what I mean – and secondly, that, because the ramp and
other equipment, which was the subject-matter of concession by the state
to the third party, was in the public domain, it could not be the subject-
matter of a lease. Again Mr Justice Sheen, having heard the evidence of
the French lawyers concerned, came to a conclusion on that and those
were conclusions he was entitled to come to. But Mr Geddes before me
takes the point that what is a tenancy is not to be governed exclusively by
English or French law in this case, and he refers to a passage in O'Malley
and Layton, paragraph 20(12) at page 525, where the learned authors of
that book in a commentary on Article 16(1), say this:
"The question whether rights in rem or tenancies of immovable property
are independent concepts for the purposes of the Convention remains to
be decided by the European Court of Justice. It is suggested that they
probably are."
The argument goes this way: when in Article 16(1) the word "tenancies"
is used, it is not intended to refer to a tenancy within the meaning of
any particular system of law of the contracting parties. It has a meaning
which is, or could well be, above and beyond any national meaning of
tenancy and only the European Court can decide what is the meaning
of tenancy for the purposes of the Article. Let me say at once that I
would accept that that would certainly raise an arguable point of law fit
to be considered by this court if I were satisfied that, within what was
intended to be covered by Article 16(1), these third party proceedings
are proceedings which have as their object tenancies of immovable
property, and for that purpose, namely, whether I am satisfied that these
proceedings are within the object of that Article, I refer to two cases in
the European Court. The first is the case of Sanders v van der Putte,
reported in [1977] ECR 2383. The passage to which I refer is from the
judgment at page 2391:
"Tenancies of immovable property are generally governed by special rules
and it is preferable, in the light of their complexity, that they be applied
only by the courts of the States in which they are in force.
The foregoing considerations explain the assignment of exclusive
jurisdiction to the courts of the State in which the immovable property
is situated in the case of disputes relating to tenancies of immovable
property properly so-called, that is to say, in particular, disputes between
lessors and tenants as to the existence or interpretation of leases or
to compensation for damage caused by the tenant and to giving up
possession of the premises.
The same considerations do not apply where the principal aim of the
agreement is of a different nature, in particular, where it concerns the
operation of a business.
Furthermore, the assignment, in the interest of the proper administration
of justice, of exclusive jurisdiction to the courts of one Contracting state
in accordance with Article 16 of the Convention results in depriving the
parties of the choice of the forum which would otherwise be theirs and,
in certain cases, results in their being brought before a court which is not
that of the domicile of any of them.
Having regard to that consideration the provisions of Article 16 must not
be given a wider interpretation than is required by their objective."
To the like effect is the more recent case of Hacker v Euro Relais GmbH,
the report of which I have seen is in The Times newspaper of 9th April
1992, where again the European Court were invited to hold that a
complex contract relating to the provision of a number of different
services against payment of a global price – it was a holiday contract
including a tenancy of a cottage or chalet in Holland for which a German
citizen had contracted with a German travel agency – it was held that that
was not within the provisions of Article 16(1). I quote from parts of the
judgment reported in The Times:
"As the Court had pointed out in Case 241/83 Rosler v Rottwinkel (...)
the raison d'etre of the exclusive jurisdiction conferred by article 16(1) on
the courts of the contracting state in which the property was situated was
the fact that tenancies were closely bound up with the law of immovable
property and with the provisions, generally of a mandatory character,
governing its use, such as legislation controlling the level of rents and
protecting the rights of tenants including tenant farmers."
Then there is a later reference to Sanders v van der Putte (to which I
have already referred). I do not think I need to say more on that case. As
I say, it follows Sanders v van der Putte.
Even though, accepting for the purposes of argument, that it would be
open to the European Court of Justice, if this matter were to go before
it, to give the word "tenancy" in Article 16(1) a meaning different from
that which it contains either under English law or French law, on the
facts of this case I am quite clear in my mind, as indeed was the judge
below, that this is not a case which is within the object of Article 16(1) as
explained by the European Court in those two cases. The only relevant
matter in the third party proceedings, so Mr Geddes contends, is that
under the 1984 agreement his clients are exempt from any contribution
towards the damages sustained by the plaintiff. Even if, contrary to
the effect of the agreement both in English law, as I understand it, or
in French law, as the judge found on the evidence before him, as not
creating a tenancy, it were open to the European Court to hold that the
agreement did create a tenancy, there is no possible reason why the
agreement should be within the ambit of the object of Article 16(1) so
as to be construed by the European Court as creating a tenancy. On that
basis, therefore, it seems to me that there is no seriously arguable point
to be taken before this court. Further, in so far as I have a discretion here,
it does seem to me that these proceedings have been delayed quite long
enough. The point about jurisdiction was taken by the third party at the
last minute.
Although, if I were satisfied that this court did have jurisdiction or that
there was an arguable case to that effect, I would have granted leave for
the reasons that I have endeavoured to give, in my judgment there is no
sufficiently arguable point of law here to make it appropriate that I should
give leave to appeal, and I therefore refuse leave.