COLMAN J:
The applications before the Court raise important issues as to the proper
construction of the CMR Convention enacted under the Carriage of Goods
by Road Act, 1965. Those issues relate to the limitations placed upon
the jurisdiction of the Court by that Convention and to the relationship
between the jurisdictional regime provided for by the Convention and the
jurisdiction regime applicable under the Brussels Convention as enacted
under the Civil Jurisdiction and Judgments Act, 1982.
Introduction
On July 18, 1997 the defendants, pursuant to a contract with Frans Maas
(UK) Ltd, collected 14 pallets of computer parts from the premises of Sun
Micro Systems International BV at Ashton-Under-Lyne for carriage by
road and delivery to Sun's premises at Montfoort in the Netherlands. The
sender under the CMR note was Design to Distribution Systems Ltd. That
party contracted for the carriage with Frans Maas Logistics (UK) Ltd, the
plaintiffs in these proceedings. The plaintiffs sub-contracted the carriage
to Frans Maas (UK) Ltd, who in turn, sub-contracted with the defendants.
The defendants' driver left the lorry unattended on a public road near his
home in the Netherlands during a weekend. It duly vanished. When it was
recovered, not surprisingly the goods were missing.
The plaintiffs are assignees from Sun Micro Systems of their rights
of action arising out of the contract of carriage and they bring these
proceedings in that capacity against the defendants as the carriers
responsible for the performance at the time when the goods were lost.
These proceedings were commenced on July 15, 1998, two days after the
assignment.
However, nearly a year earlier proceedings had been commenced in the
District Court of Utrecht. By those proceedings the defendants in these
proceedings, CDR, claimed a declaration that they were not liable for
the loss of the goods or alternatively that they were entitled to limit
their liability under CMR. Those proceedings were brought against three
defendants; (i) Frans Maas (UK) Ltd, with whom CDR had contracted as
carriers; (ii) Design to Distribution Ltd, the sender under the CMR note;
and (ii) Sun, the consignees under the CMR note. Service was effected on
the defendants in the Utrecht proceedings on Aug 8, 1997 which was the
latest date upon which the Court became seised of those proceedings. A
number of hearings have taken place in those proceedings and pleadings
have been exchanged. It appears that the Utrecht Court may arrive at a
decision as early as the end of April, 1999.
The defendants apply for the dismissal of the plaintiffs' claim in these
proceedings on the grounds that its pursuit in the English Courts is
contrary to art 31(2) of CMR. Alternatively, the plaintiffs apply for these
proceedings to be stayed pursuant to art 21 and/or art 22 of the Brussels
Convention. It is common ground that, as assignees from Sun, the
plaintiffs are to be treated as in the same position as Sun, namely as
consignees under the CMR note. It is also common ground that these
proceedings raise as between the plaintiffs and the defendants, CDR
Trucking, substantially the same issue as that raised by the Utrecht
proceedings between CDR and the three defendants in those proceedings,
including Sun.
The defendants' submissions
Mr Robert Thomas argues, on behalf of the defendants, that the plaintiffs'
pursuit of these proceedings is contrary to art 31(2) of CMR. The
Utrecht proceedings are in respect of a claim arising out of carriage
under CMR. In respect of that claim an action is pending before a Court
"competent", under par (1) of art 31 since Sun, the plaintiffs' assignors,
are a Dutch company and, although the defendants have claimed a
negative declaration in those proceedings, that is a perfectly legitimate
course. Since, as it is conceded on behalf of the plaintiffs, the present
action is "between the same parties and on the same grounds" as in the
Utrecht proceedings commenced nearly one year earlier, this action is
prohibited by art 31(2).
Article 31 provides as follows:
1. In legal proceedings arising out of carriage under this Convention,
the plaintiff may bring an action in any court or tribunal of a contracting
country designated by agreement between the parties and, in addition, in
the courts or tribunals of a country within whose territory;
(a) the defendant is ordinarily resident, or has his principal place of
business, or the branch or agency through which the contract of carriage
was made, or
(b) the place where the goods were taken over by the carrier or the place
designated for delivery is situated,
and in no other courts and tribunals.
2. Where in respect of a claim referred to in paragraph 1 of this article
an action is pending before a court or tribunal competent under that
paragraph or, where in respect of such a claim a judgment has been
entered by such a court or tribunal no new action shall be started
between the same parties on the same grounds unless the judgment
of the court or tribunal before which the first action was brought is not
enforceable in the country in which the fresh proceedings are brought.
3. When a judgment entered by a court or tribunal of a contracting
country in any such action as is referred to in paragraph 1 of this article
has become enforceable in that country, it shall also become enforceable
in each of the other contracting States, as soon as the formalities required
in the country concerned have been complied with. The formalities shall
not permit the merits of the case to be re-opened.
4. The provisions of paragraph 3 of this article shall apply to judgments
after trial, judgments by default and settlements confirmed by an order
of the court, but shall not apply to interim judgments or to awards of
damages, in addition to costs against a plaintiff who wholly or partly fails
in his action.
On the key issue whether the Utrecht Court is "competent" under art
31(1) in respect of the action brought before it by the defendants Mr
Thomas argues as follows.
(i) There is nothing in the CMR and, in particular art 36, which precludes
the commencement in an appropriate jurisdiction by a carrier in the
position of the defendants of proceedings for a declaration of non-liability
against a consignee of the goods carried;
(ii) Article 36 should be confined to claims brought against successive
carriers for, as appears from the title to Chapter VI of the Convention and
from arts 34, 37 and 39, the regime introduced by this chapter has no
application to claims by carriers against a consignor or consignee. Chapter
VI provides as follows:
Article 34
If carriage governed by a single contract is performed by successive road
carriers each of them shall be responsible for the performance of the
whole operation, the second carrier and each succeeding carrier becoming
a party to the contract of carriage, under the terms of the consignment
note, by reason of his acceptance of the goods and the consignment note.
Article 36
Except in the case of a counter-claim or a set-off raised in an action
concerning a claim based on the same contract of carriage, legal
proceedings in respect of liability for loss, damage or delay may only be
brought against the first carrier, the last carrier or the carrier who was
performing that portion of the carriage during which the event causing the
loss, damage or delay occurred; an action may be brought at the same
time against several of these carriers.
Article 37
A carrier who has paid compensation in compliance with the provisions of
this Convention, shall be entitled to recover such compensation, together
with interest thereon and all costs and expenses incurred by reason of the
claim, from the other carriers who have taken part in the carriage, subject
to the following provisions:
(a) the carrier responsible for the loss or damage shall be solely liable for
the compensation whether paid by himself or by another carrier;
(b) when the loss or damage has been caused by the action of two or
more carriers, each of them shall pay an amount proportionate to his
share of liability; should it be impossible to apportion the liability, each
carrier shall be liable in proportion to the share of the payment for the
carriage which is due to him;
(c) if it cannot be ascertained to which carriers liability is attributable for
the loss or damage, the amount of the compensation shall be apportioned
between all the carriers as laid down in (b) above.
Article 39
1. No carrier against whom a claim is made under articles 37 and 38 shall
be entitled to dispute the validity of the payment made by the carrier
making the claim if the amount of the compensation was determined by
judicial authority after the first mentioned carrier had been given due
notice of the proceedings and afforded an opportunity of entering an
appearance.
2. A carrier wishing to take proceedings to enforce his right of recovery
may make his claim before the competent court or tribunal of the country
in which one of the carriers concerned is ordinarily resident, or has his
principal place of business or the branch or agency through which the
contract of carriage was made. All the carriers concerned may be made
defendants in the same action.
(iii) Proceedings in the form of negative declarations are very commonly
used in European jurisdiction where proceedings have been threatened
against a plaintiff. Mr Thomas relies on a reference to that effect in an
article by Adrian Briggs and on the opinion of Advocate General Tesauro in
The Tatry, C-406/92, [1995] 1 Lloyd's Rep 302; [1994] ECR I-5439 at pp
1-5454 to I-5455.
(iv) Accordingly, had it been the intention of the parties to CMR to
exclude from the application of art 31(1) and (2) a claim for a negative
declaration, clear words could be expected to have been used.
(v) If the plaintiffs' arguments were right, the prohibition on negative
declarations would not be confined to proceedings brought by a carrier
against a non-carrier party with an interest in the goods, but would
even extend to a claim by one successive carrier against another for a
declaration that the former was under no liability to pay compensation to
the latter under art 37.
(vi) The result of the plaintiffs' construction would be a serious risk of
conflicting judgments.
It is further argued by Mr Thomas that, even if his primary submission is
wrong and CMR contains nothing to prohibit the English proceedings, then
the effect of art 57 of the Brussels Convention is to let in the jurisdictional
limitations contained in arts 21 and 22 of the Brussels Convention. That
is, because CMR makes no specific provision governing jurisdiction in
the case of an intermediate carrier's claim for a negative declaration and
there is therefore in effect an area of jurisdiction not specifically catered
for or a jurisdictional lacuna. Article 57 provides:
1. This Convention shall not affect any conventions to which the
Contracting States are or will be parties and which in relation to particular
matters, govern jurisdiction or the recognition or enforcement of
judgments.
2. With a view to its uniform interpretation, paragraph 1 shall be applied
in the following manner --
(a) this Convention shall not prevent a court of a Contracting State
which is a party to a convention on a particular matter from assuming
jurisdiction in accordance with that Convention, even where the defendant
is domiciled in another Contracting State which is not a party to that
Convention. The court hearing the action shall, in any event, apply Article
20 of this Convention.
(b) judgments given in a Contracting State by a court in the exercise of
jurisdiction provided for in a convention on a particular matter shall be
recognised and enforced in the other Contracting State in accordance with
this Convention.
Where a convention on a particular matter to which both the State of
origin and the State addressed are parties lays down conditions for the
recognition or enforcement of judgments, those conditions shall apply. In
any event, the provisions of this Convention which concern the procedure
for recognition and enforcement of judgments may be applied.
3. This Convention shall not affect the application of provisions which,
in relation to particular matters, govern jurisdiction or the recognition
or enforcement of judgments and which are or will be contained in acts
of the institutions of the European Communities or in national laws
harmonised in implementation of such acts.
It is argued that these proceedings should be stayed, if not because there
is no jurisdiction to hear the claim for a negative declaration under CMR,
but because the Dutch Court was first seised (art 21) or because these
claims are related (art 22).
The plaintiff's submissions
Mr Jonathan Hirst, QC argued on behalf of the plaintiff that it was
contrary to the jurisdictional code under CMR for a carrier to bring an
action for a declaration of non-liability against a consignor, consignee
or an intermediate carrier, such as CDR Trucking. Consequently, the
lis alibi pendens provisions of CMR did not operate to prevent the
plaintiff's English proceedings which were the only pending proceedings
permissible under the CMR. Article 31.2 had the effect of preventing
the commencement of a new action between the same parties on the
same grounds and relating to the same issues only if an action was
pending before a competent Court. However, the Dutch proceedings were
not covered by art 31.1 because those proceedings were not before a
"competent" Court within the meaning of art 31.2 since they were not
permissible proceedings. Mr Hirst further argued that the effect of art
36 was to prevent the bringing of proceedings for declarations of non-
liability against a goods' owner. It confined proceedings "in respect of
liability for loss, damage or delay" to proceedings against the first carrier,
the last carrier or the relevant performing carrier and permitted no other
party to be sued in respect of "loss of goods". Support was added to this
construction of art 31 of the Convention by art 39(2) which provided for
indemnity claims between carriers in terms which made it clear that the
defendant carrier ("the carrier concerned") must be the carrier said to
be liable to pay the indemnity. Such a carrier could not be a defendant
to a claim for a declaration of non-liability by a carrier allegedly liable
to indemnify. This reflected the general CMR jurisdictional regime which
was to identify the place of jurisdiction by reference to substantive claims
for liability on the part of the defendant and not in such a way as to
contemplate claims for declarations of non-liability by a party alleged to
be liable. If such claims could be brought, that jurisdictional regime would
be destroyed. For these reasons the word "plaintiff" in art 31 must be
confined to a party to the contract of carriage who advanced a claim for
substantive relief, such as damages for breach of the contract of carriage,
if a goods' owner, or, if brought by a carrier, for example, for payment of
outstanding carriage charges, or for an indemnity for losses suffered by
the carrier due to defective packing under art 10.
The proper construction of CMR
The Convention is designed to accommodate the litigation of disputes
under and relating to the contract of carriage, whether those disputes
relate to claims by the goods' owner against a carrier, by a carrier against
a goods' owner or by one carrier against another carrier. Thus, for
example, arts 7 and 10 specifically provide for the liability of the sender
to the carrier, arts 17 to 29 deal with the liability of carriers to the goods
owners and arts 37 to 39 deal with claims by one carrier against another
carrier where there have been successive carriers who have performed
the carriage provided for by one contract of carriage.
The scheme of the Convention therefore has to be understood against
that background. The two articles which designate the venue of
jurisdiction are arts 31 and 39. The former deals with legal proceedings
arising out of carriage under CMR in general, whereas art 39.2 deals with
claims by one of the successive carriers against another. Article 31.1 is
therefore applicable to legal proceedings in respect of issues arising out
of the contract whether those proceedings are brought by a goods' owner
against a carrier or by a carrier against a goods' owner.
Article 31.2 is designed to prevent multiplicity of proceedings in respect of
the contract of carriage. "A claim referred to in paragraph 1 of this article"
clearly means any claim advanced "arising out of carriage under this
convention" in par 1, whether advanced by a goods owner or a carrier.
The words "an action is pending before a court or tribunal competent
under (paragraph 1)" means that legal proceedings in which a claim of the
kind described in par 1 (arising out of carriage under CMR) is advanced
are in progress before a Court identified as an appropriate venue under
par 1.
Article 31.2 recognizes that, although an action may have been started
in the appropriate venue, a judgment yet to be obtained or already
obtained in the Court or tribunal in question may not be enforceable in
another country which is also an appropriate venue. Clearly the judgment
contemplated is one in respect of which enforcement proceedings
would be applicable, namely a judgment for damages or other remedy
properly the subject of such proceedings. That must be the correct
construction because nobody would start new proceedings to achieve
enforcement in a particular jurisdiction if all that they were after was a
judgment for a negative declaration of which they sought recognition for
defensive purposes as distinct from enforcement in that other jurisdiction.
Consequently, in art 31.2 the pending action or the judgment obtained,
as the case may be, and the new action contemplated as being started
in another jurisdiction must all involve claims for enforceable relief as
distinct from a declaration of non-liability, which might be expected to be
recognized in such other jurisdiction, but certainly would not be expected
to be enforced. Moreover, the bringing of an action "on the same grounds"
contemplates duplication of a claim so as to suggest that this paragraph
is indeed aimed at protecting the nemo debit bis vexari principle and is
not concerned with preventing defensive cross-claims. This construction
is also supported by the contents of pars 3 and 4 of art 31 which strongly
suggest that when the article refers to an enforceable judgment, it means
one capable of being the subject of enforcement proceedings.
Does it follow that art 31.1 is concerned only with claims for enforceable
relief as distinct from claims for negative declarations? There is certainly
nothing in the express words which would have that limiting effect.
There is no indication that the action brought by the plaintiff, whether
goods owner or carrier, can only be one in which he claims some form
of relief which could be the subject of enforcement proceedings. So it
could only be given that meaning if pars 1 and 2 can properly be read as
a composite jurisdictional code limited in effect to claims of the kind to
which par 2 is specifically directed.
There is, in my judgment, no basis whatever for limiting the effect of
par 1 in this way. Paragraph 2 is dealing with a particular problem -- the
protection of the nemo debit principle -- relating to a particular kind of
claim.
To confine by implication a provision such as par 1, which deals with
jurisdiction generally, and on the face of it with all kinds of claim, to
claims of the kind specifically dealt with in par 2 would not be a legitimate
process of construction. Moreover, given that proceedings for a negative
declaration are normal in continental jurisdictions, one would not expect
to find them excluded from a provision written in general terms, such as
art 31.1. Words expressly excluding such proceedings could be expected
to be used if that was the intention of the parties to the Convention.
The argument advanced by Mr Hirst, on behalf of the plaintiffs, that art
36 precludes the commencement of claims for declarations of non-liability
against a goods' owner is, in my judgment, misconceived. The function
of art 36 is to deal with the incidence of claims by a goods' owner against
carriers where there are successive carriers. It is not concerned either
with claims against goods' owners or with claims by one carrier against
another. The only claims to which it relates are those for liability for loss,
damage or delay and that can only be the liability of the defendant carrier.
Thus, where the number of successive carriers exceeds three -- the first
carrier, the last carrier and the performing carrier -- the goods' owner is
confined to one or more of such carriers unless he is sued by another of
the successive carriers, in which case he can deploy his claim by way of
counterclaim or set-off against that other carrier. This article therefore
cannot be used to exclude a claim by a carrier, successive or otherwise,
against a goods' owner for a negative declaration.
I do not consider that art 39 provides any assistance in relation to the
construction of art 31.1. There is certainly nothing in it which has any
bearing on actions by goods' owners, much less actions against them for
negative declarations. As was made clear in Cummins Engine Co Ltd v
Davis Freight Forwarding (Hull) Ltd, [1981] 2 Lloyd's Rep 402; [1981] 1
WLR 1363, this article is concerned only with proceedings for indemnity
or contribution made by one successive carrier against another carrier.
The "right of recovery" to which art 39.2 refers is a right to recover such
contribution or indemnity.
Since reliance has been placed on the decision in Cummins Engine Co,
it is right that I should indicate that there are two respects in which the
reasoning in my judgment differs from certain observations made by
Lord Justice Brandon in the course of his judgment. Firstly, he suggests
at p 406, col 2; p 1371 that the provisions of CMR in chapters V and VI
contemplate "two kinds of legal proceedings arising out of a contract
of carriage" -- by the sender or consignee against one or more carriers
and by one carrier against another. For reasons which I have given,
art 31.1 in my view clearly also covers claims by a carrier against a
sender or consignee. It is simply inconceivable that, given that there is
express provision in CMR for liabilities to the carrier on the part of the
sender or consignee, claims to enforce such liabilities should be excluded
from art 31.1. Secondly, it is suggested at p 406, col 2; p 1371 (F) that
the sender or consignee can sue all the successive carriers concerned
by reason of the combined effect of arts 31.1 and 34. Whereas all the
successive carriers are treated as responsible for the whole carriage under
art 34, the sender or consignee by reason of art 36 can only bring legal
proceedings against one or more of the first carrier, the last carrier and
the performing carrier.
The reasoning of Lord Justice Brandon on those two aspects of the
Convention was obiter and I do not follow it.
It follows that CMR contains nothing which prevents proceedings by
a carrier for a declaration of non-liability, provided that he brings the
proceedings in the appropriate Court, namely that specified in art 31.1.
It further follows that there is nothing in CMR which prevents a claim
for an enforceable remedy being brought in the Courts of one country
by a sender or consignee of goods against a carrier who has already
commenced in the Courts of another country proceedings for a negative
declaration in respect of the same loss or damage to goods under the
same contract of carriage against the same sender or consignee.
The effect of art 57 of the Brussels Convention
The starting point for any consideration of the application of art 57
must be the decision of the European Court in The Tatry, Case C-406/92
[1995] 1 Lloyd's Rep 302; [1994] ECR I-5439 which was subjected to
close analysis by both parties before me. The issues before the Court
in that case arose from a jurisdictional collision between proceedings
commenced in rem in the English Admiralty Court by cargo-owners
against shipowners in respect of cargo damage and proceedings
commenced in the Netherlands by shipowners against cargo-owners or
their agents seeking declarations of non-liability and for judgment as to
their entitlement to limit their liability under the International Convention
on the Arrest of Seagoing Ships, 1952. The English Court of Appeal
referred a number of issues to the European Court designed to ascertain
to what extent, if at all, arts 21 and 22 of the Brussels Convention were
applicable in addition to the jurisdiction regime provided for by the 1952
Convention. The relevant issue was stated thus:
3. Where a Contracting State is party to the Brussels Arrest Convention
1952 and its merits jurisdiction has been invoked by the arrest of a vessel
in accordance with the provisions of the Arrest Convention by cargo
owners in respect of a claim for loss arising out of the discharge of cargo
in an allegedly damaged condition, then in so far as proceedings have
previously been brought by the shipowner against the cargo owners in
respect of such alleged damage in another Contracting State, are the
courts of the Contracting State in which merits jurisdiction has been
founded by arrest entitled to retain such jurisdiction by virtue of Article
57 of the Brussels Convention 1968 (as amended by Article 25(2) of the
Accession Convention) if
(a) the two actions involve the same cause of action and same parties for
the purposes of Article 21 of the Brussels Convention 1968 (as amended);
or
(b) the two actions are "related actions" for the purposes of Article 22 of
the Brussels Convention 1968 (as amended) and it would otherwise be
appropriate for the court second seised to decline jurisdiction or to stay its
proceedings thereunder?
In the course of its judgment the Court analysed the issue in the following
way: (at p 306, col 2; p 1-5470)
The national Court's third question is essentially whether, on a proper
construction, art 57 of the Convention, as amended by the Accession
Convention, means that, where a Contracting State is also a contracting
party to another convention on a specific matter containing rules on
jurisdiction, that specialized convention always, subject to express
exceptions, precludes the application of the Brussels Convention, or that
the specialized convention precludes the application of the provisions of
the Brussels Convention only in cases governed by it and not in those to
which it does not apply.
At p 307, col 1; p 1-5471 the Court explained the effect of art 57 in the
following words:
Article 57 introduces an exception to the general rule that the Convention
takes precedence over other conventions signed by the Contracting
States on jurisdiction and the recognition and enforcement of judgments.
The purpose of that exception is to ensure compliance with the rules on
jurisdiction laid down by specialized conventions, since in enacting those
rules account was taken of the specific features of the matters to which
they relate.
That being its purpose, art 57 must be understood as precluding
the application of the provisions of the Brussels Convention solely in
relation to questions governed by a specialized convention. A contrary
interpretation would be incompatible with the objective of the Convention
which, according to its preamble, is to strengthen in the Community
the legal protection of persons therein established and to facilitate
recognition of judgments in order to secure their enforcement. In those
circumstances, when a specialized convention contains certain rules of
jurisdiction but no provision as to lis pendens or related actions, arts 21
and 22 of the Brussels Convention apply.
The effect of this reasoning is clearly that arts 21 and 22 must be applied
unless the other international convention expressly provides for the
eventuality of parallel proceedings in different jurisdictions and specifies
how the Courts of contracting states are to deal with such proceedings. In
the event of no such provision being made, arts 21 and 22 apply.
The specificity required of the other convention before application of
that convention before can properly be preferred to that of the Brussels
Convention is strikingly illustrated by the way in which the Court then
addressed the problem in that case.
It had been argued that, because art 3.3 of the 1952 Convention provided
that a ship should not be arrested more than once in different jurisdictions
by the same claimant in respect of the same maritime claim, art 57
should operate to exclude the application of arts 21 and 22. The Court
rejected that argument (at p 307, col 1; p 1-5472):
The cargo-owners' argument cannot be accepted. Where an arrest has
already been made in the jurisdiction of a Contracting State, art 3(3) of
the Arrest Convention prohibits a second arrest by the same claimant
in respect of the same claim in the jurisdiction, in particular, of another
Contracting State. Such a prohibition has nothing to do with the concept
of lis pendens within the meaning of art 21 of the Brussels Convention.
That provision is concerned with the situation where proceedings are
brought before two courts both of which have jurisdiction and it governs
only the question which of those two Courts is to decline jurisdiction in the
case.
In other words, because the 1952 Convention did not cover the relevant
jurisdictional ground which was covered by art 21, art 57 was not
engaged. The judgment impliedly applies similar reasoning to art 22.
Does art 57 apply in this case?
As I have already held, the purpose and effect of art 31(2) of CMR is
to prevent the duplication of claims for enforceable relief in different
jurisdictions. It is not concerned with the duplication of proceedings
merely because they raise the same issues in different jurisdictions. In
The Tatry, sup, the European Court, following its decision in Gubisch
Maschinenfabrik v Palumbo, [1987] ECR 4861, held that arts 21 and 22
are intended to prevent parallel proceedings before the Courts of different
Contracting States and to avoid the conflicts between decisions which
might result, in particular --
. . . the non-recognition of a judgment on account of its irreconcilability
with a judgment given in a dispute between the same parties in the State
in which recognition is sought. [See p 307, col 2; p 1-5473.]
It is to be observed that in the passage at p 307; p 1-5472, already cited,
in The Tatry the European Court contrasted that purpose and effect of arts
21 and 22 with the purpose and effect of art 3.3 of the 1952 Convention.
Whereas the scope of art 3.3 was confined to the duplication of arrests
of the same vessel in different jurisdictions, the scope of arts 21 and 22
extended to all proceedings between the same parties raising the same
issue in different jurisdictions.
This dichotomy is also to be found in the present case where art 31(2)
of CMR is as I have held, confined in application to prohibiting the
duplication in different jurisdictions of claims by the same claimant and
is not concerned with the duplication of the raising of issues in different
jurisdictions. For this reason art 57 is certainly not engaged where
there is a claim in one appropriate jurisdiction for a negative declaration
followed by a claim in another appropriate jurisdiction by the defendant
in the first proceedings against the plaintiff in those proceedings for
damages for breach of contract or for some other enforceable remedy
founded on the same factual basis as the claim for declaratory relief.
In such a case the second set of proceedings is outside the limited
jurisdictional control system which operates under CMR but is within the
jurisdictional control system prescribed by arts 21 and 22 of the Brussels
Convention. In such circumstances, if the latter system did not apply
there would be an acute risk of conflicting decisions and that eventuality
is the very mischief against which arts 21 and 22 are directed.
In these circumstances there can be no doubt that the plaintiffs cannot
on the basis of art 57 bring themselves within any relevant exception to
the application of arts 21 and 22. As I understand the plaintiffs' position,
Mr Hirst accepts that the inevitable consequence of this conclusion is that
these proceedings must be stayed.
SOLICITORS:
Clyde & Co; Holmes Hardingham Walser Johnston Winter.