Mr. Justice Wall (giving the judgment of the court):
The issue
This appeal arises from the refusal by the Senior Master of the Queen’s
Bench Division, in a judgment given on 9 March 2001, to strike out, for
want of jurisdiction, an action for damages for personal injuries brought
by J. W. H. (the claimant below and the respondent to the appeal in
this court) against M. E. J. (M. J.) and M. A. des I. de France (MAIF)
(respectively the first and second defendants in the court below and the
appellants in this court).
The case, which arises out of a traffic accident involving Mr. H. and M J. in
France in 1978, raises a short point under Article 5(3) of the Convention
on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters signed at Brussels on 27 September 1968 (the Convention) as
incorporated into English law by the Civil Jurisdiction and Judgments Act
1982.
The relevant Articles of the Convention
For the purposes of this case, only two Articles of the Convention are
directly relevant. Article 2 states the general rule: -
Subject to the provisions of this Convention, persons domiciled in a
Contracting State shall, whatever their nationality, be sued in the courts
of that State.
Article 5 provides for exceptions to the general rule. The relevant Article is
5(3):
A person domiciled in a Contracting State may, in another Contracting
State, be sued in matters relating to tort, delict or quasi-delict, in the
courts for the place where the harmful event occurred.
The question we have to resolve is; what is meant in this case by the
phrase “the place where the harmful event occurred”?
The facts
The facts are straightforward. On 8 July 1978, Mr. H. had the misfortune
to be involved in a road traffic accident in the region of Cherbourg in
France. He was seriously injured. M. J. was the other driver. On 20
February 1979 the French criminal court, le Tribunal Correctionel de
Cherbourg, found that M. J., who is a French national resident in France,
was wholly responsible for the accident. In addition to imposing criminal
penalties (including a two month suspended sentence of imprisonment)
the court ordered M. J. to make payments in respect of special damages
to Mr. H., who had been joined in the proceedings as partie civile.
On 27 April 1981, Mr. H. issued proceedings in a civil court, the Tribunal
de Grande Instance de Cherbourg (the Tribunal) against both M. J. and
MAIF, which is a French insurance company and which insured M. J..
Dr. Jacques F. was appointed by the Tribunal as the court expert and he
examined Mr. H.. On 14 March 1983 Mr. H. was awarded damages by the
Tribunal. For present purposes, it is unnecessary for us consider the detail
of either Mr. H.’s injuries, or the sum of damages awarded to him in 1983.
Two points, however, need to be noted. The first is that under French law,
damages for personal injuries are based on the court’s assessment of
the victim’s disability at the date of the award. Thus it is common ground
between the experts in French law in this case that the award made to
Mr. H. by the Tribunal on 14 March 1983 was based on the degree of
disability which Mr. H. had suffered as at that date, and was a final award
in relation to that degree of disability.
However, the second point to be noted is that the judgment of the
Tribunal expressly gave Mr. H. the right to return to the Tribunal to
seek a further award in the event of a subsequent deterioration in his
condition. In French Law this is a fresh cause of action designated en cas
d’aggravation.
On 12 December 1995, Mr. H., acting through French lawyers, issued
fresh proceedings in the Tribunal, claiming aggravation and seeking, inter
alia, an interim payment. On 26 February 1996, the Tribunal directed a
further medical examination by Dr. F. of Mr. H. (for which he was ordered
to pay the fee of 4,200FF) and made a provisional award of damages of
4,000FF. This appears, somewhat surprisingly to English eyes, to have
been less than the fee for the medical examination.
The medical report obtained pursuant to the direction of the Tribunal is
dated 22 May 1996. Mr. H. does not, however, appear to have pursued
his proceedings before the Tribunal. Rather, following unsuccessful
negotiations between English solicitors instructed on his behalf and
English solicitors instructed by MAIF, the present claim was issued in the
Queen’s Bench Division of the High Court on 30 May 2000.
In paragraphs 11 and 12 of the Particulars of Claim, the case is pleaded
as follows: -
11. As a matter of French law
(a) it is open to a claimant to return to [the Tribunal] following a
judgment for damages to seek a further award if there has been a
subsequent deterioration in his condition (aggravation);
(b) when a claimant makes a claim for (aggravation), this is by way of a
new action based on the new fact, viz the deterioration in the claimant’s
medical condition since the previous award;
(c) in accordance with Article L124-3 of the French Insurance Code, the
claimant is entitled to sue the second defendant [the first defendant’s
insurers] directly.
12. At all material times and, in particular, since 14 March 1983 the
Claimant has been resident and domiciled in England. Since 1983,
the Claimant’s condition has deteriorated to a significant extent. The
symptoms of such deterioration are directly related to the accident in
question and would not have arisen but for that accident.
Jurisdiction is then claimed under Article 5(3) of the Convention on the
basis that the “harmful event” occurred in England.
None of the propositions pleaded in paragraphs 11 and 12 of the
Particulars of Claim is, as we understand it, controversial. Furthermore,
as this is an argument about jurisdiction, the case, of course, proceeds
on the basis that the claimant has indeed suffered a deterioration in
his medical condition, and thus has a valid action in French law en cas
d’aggravation. The only question is whether or not he is entitled to bring
that action in England.
Three points were argued before the Senior Master one of which is not
now pursued. Firstly, the claimant argued that he was entitled to bring
proceedings in England against MAIF pursuant to Article 5(5) of the
Convention[1]. The Senior Master rejected that argument; there is no
cross appeal against his decision and we need say no more about it.
Secondly, M. J. and MAIF argued that the proceedings before the Tribunal
were lis pendens for the purposes of Articles 21 and 22 of the Convention.
The Senior Master rejected that argument and his decision on the point
is the subject of Amended Additional Grounds of Appeal. It was, however,
common ground at the hearing before us that Articles 21 and 22 only
became relevant if the appellants failed on the third point, namely the
argument under Article 5(3). It is, accordingly, to that which we now turn.
The argument under Article 5(3)
We have already set out the terms of Article 5(3) and identified the critical
phrase: “the place where the harmful event occurred”.
It is common ground that the term “harmful event” is an autonomous
Convention concept, not to be determined by reference to national law.
As we think is already apparent, Mr. H.’s case, in summary, is as follows.
Self-evidently, the accident occurred in France, and the original action,
which concluded in 1983, was properly brought in France. However,
aggravation is a fresh cause of action under French law. Mr. H. has been
domiciled and has lived in England throughout the period from 1983
to date. Therefore, the deterioration in his condition which founds the
basis for his cause of action en cas d’aggravation occurred exclusively in
England. Accordingly, the “harmful event” identified by Article 5(3) has
occurred exclusively in England, and the English courts have jurisdiction
to entertain his claim.
This is the reasoning which persuaded the Senior Master that the English
courts had jurisdiction. He said:
“The defendant’s argument is that the harmful event took place solely in
France in that the accident and the initial injuries occurred at the same
time and that the deterioration is no more than a consequence of those
initial injuries. In a sense that is true, but it ignores that the French law
prescribes two separate causes of action to these two sets of injuries. The
first certainly occurred in France and was properly dealt with there by the
award of the French Court. At that stage there were no additional injuries
for which the claimant could claim damages. It was only in later years
that the deterioration occurred and this is the further harmful event on
which the claimant relies.”
The Senior Master then considered a decision of the European Court of
Justice Bier v Mines de Potasse d’Alsace [1976] ECR 1375 (hereinafter
referred to as Bier) and continued: -
“Because I am bound to apply French substantive law and because of the
agreement of the French lawyers that there are two causes of action and
that the claimant must commence fresh proceedings in order to recover
damages for the deterioration of his health since the original award in
Cherbourg, I find that this case is on all fours [with] Bier, and the claimant
has the option to commence proceedings in either France or in England,
because the former was the place which gave rise to and was the origin or
the damage and the latter was the place where the damage occurred.”
The Senior Master did not consider that any of the later cases in the
European Court of Justice took the matter further. He regarded his
conclusion as according with the official report on the Convention (the
Jenard Report) which, he said, “supported the option of the choice of two
possible jurisdictions in cross frontier torts and noted in particular that
most such claims would result out of traffic accidents”.
We are unable to accept the Senior Master’s conclusions for a number
of reasons. First and foremost, we are satisfied that for the purposes of
Article 5(3) of the Convention the “harmful event” in this case was the
original “tort, delict or quasi-delict”, which occurred in France on 8 July
1978. The aggravation, in our judgment, is not a fresh wrong done to
the claimant: it is a worsening of his condition deriving directly from the
original wrong. The fact that in French law it constitutes a fresh cause
of action is, in our judgment, at best procedural. We see nothing in this
process which requires the court to equate the aggravation with a new
and different “harmful event” for the purposes of Article 5(3).
Secondly, we do not agree with the Senior Master that the instant case
is “on all fours” with Bier, nor do we think that the subsequent European
jurisprudence is neutral on the point: in our view it supports a restrictive
interpretation of Bier which is unhelpful to Mr. H..
Thirdly, we think there is considerable force in the point made by the
appellants that the Senior Master’s statement that he was “bound to apply
French substantive law” led him to overlook the fact that “the place where
the harmful event occurred” is an autonomous Convention concept, which
is not to be identified by reference to national law.
Fourthly, the Senior Master was, in our judgment, mistaken in thinking
that the Jenard Report, and in particular its reference to road traffic
accidents, supported his conclusion.
The authorities
Mr. Brooke QC, in a well-structured argument, sought to persuade us that
the Senior Master’s construction of Article 5(3) was supported by Bier and
by several other decisions of the European Court of Justice; and that it
accorded with the overarching objectives of the Convention, namely the
sound administration of justice and the efficacious conduct of proceedings
in member states. We turn, accordingly, to examine the authorities to
see if there is anything in them which either requires or enables us to
construe Article 5(3) in the manner for which Mr. Brooke argues.
The principal authority on which Mr. Brooke relied was Bier. In that case,
a French industrial company unlawfully polluted the Rhine by discharging
chlorides into it. When the river water was extracted downstream in
Holland and used to irrigate a Dutch market garden, it caused serious
damage to the garden’s seed and plant beds. The Dutch market gardener
sought to sue the French company in Holland. The Dutch court of
first instance held, under Article 5(3) of the Convention that it had no
jurisdiction, as the event which had caused the damage had been the act
of polluting the river, which had occurred in France. On appeal, the Dutch
Gerechtshof stayed the proceedings until the European Court of Justice
had given a preliminary ruling on the meaning of the phrase “the place
where the harmful event occurred” in Article 5(3).
The European Court’s decision is neatly encapsulated in the headnote to
the case: -
Where the place of the happening of the event which may give rise to
liability in tort, delict or quasi-delict and the place where that event
results in damage are not identical, the expression ‘place where the
harmful event occurred’ in Article 5(3) of the [Convention] must be
understood as being intended to cover both the place where the damage
occurred and the place of the event giving rise to it. The result is that the
defendant may be sued, at the option of the plaintiff, either in the courts
for the place where the damage occurred or in the courts for the place of
the event which gives rise to and is at the origin of that damage.
Paragraph 11 of the judgment states that the freedom of choice given to
claimants by Article 5 and as exceptions to Article 2 was introduced:
……… having regard to the existence, in certain clearly defined situations,
of a particularly close connecting factor between a dispute and the
court which may be called upon to hear it, with a view to the efficacious
conduct of the proceedings.
Paragraph 13 of the judgment gives a helpful insight into the type
of situation, in the context of the Convention, in which the phrase
“where the harmful event occurred” is unclear and in which, accordingly
jurisdiction in either one of two places may be established. One such
situation is: -
…… when the place of the event which is at the origin of the damage
is situated in a State other than the one in which the place where the
damage occurred is situated, as is the case inter alia with atmospheric or
water pollution beyond the frontiers of a State.
In our judgment, what may be described as the Bier exception to Article
2 is plainly apt for situations in which the wrongful act committed in one
State has an extra-territorial effect directly giving rise to a liability for the
same act in another State. Bier is, of course, the classic example. The
tortious act of polluting the river, which occurred in France, did not cause
any damage until the water reached Holland. In such circumstances, “the
place where the harmful event occurred” fits as easily with Holland as it
does with France.
Another clear example is provided by Shevill v Presse Alliance [1995]
ECR 1-415, in which the European Court decided that the victim of a libel
published in various Contracting States was not restricted to an action
against the publisher in the State in which the publisher was established,
but could sue in each of the States in which the libellous publication had
been distributed, albeit solely in relation to the damage suffered to his
reputation in each of the States in question.
However, in our judgment, the Bier exception does not apply where
the harmful event is a traffic accident which self-evidently is an event
occurring only in one jurisdiction at a particular time. In our view, the
harmful event in this case was M. J.’s negligence in causing the accident
and injury to Mr. H.. That act had no extra-territorial effect. It gave Mr. H.
no cause of action in England. He could not choose where to sue in 1981:
his only cause of action was in France.
We do not think that the deterioration in Mr. H.’s condition can properly
be described as a fresh “harmful event”. It is a most unfortunate
consequence which flows directly from the original tort, delict or quasi-
delict and is recognised as such by the French court, which provides a
fresh cause of action to cater for it.
We find nothing in the jurisprudence of the European Court which
supports the broad interpretation of Article 5(3) for which Mr. Brooke
argues. To the contrary, the limited scope given by the European Court of
Justice to the Bier exception to Article 2 is demonstrated in a number of
the authorities, principal amongst which is Dumez France and Tracoba v
Hessische Landesbank (Helaba) and Others [1990] ECR 1-49 (Dumez).
In Dumez, French companies brought an action in France against a
German bank. They sought compensation for damage which they
said they had suffered in France consequent upon the insolvency of
one of their subsidiaries in Germany. This followed the German bank
cancelling loans made to the prime contractor of the development project
in Germany in which the subsidiary companies were involved. The
claimants argued that in Bier the Court had not drawn any distinction in
its interpretation of Article 5(3) between direct and indirect victims of
damage, and that as a consequence, where an indirect victim claims to
have suffered personal damage, the court of competent jurisdiction should
be the place where the victim suffered that damage.
The European Court rejected that approach. Having reminded itself that
Article 5(3) was an exception to the general rule contained in Article 2,
the court continued:
17 …… those cases of special jurisdiction, the choice of which is a
matter for the plaintiff, are based on the existence of a particularly
close connecting factor between the dispute and courts other than
those of the State of the defendant’s domicile, which justifies the
attribution of jurisdiction to those courts for reasons relating to the sound
administration of justice and the efficacious conduct of proceedings.
18. In order to meet that objective, which is of fundamental importance
in a convention which has essentially to promote the recognition and
enforcement of judgments in States other than those in which they
were delivered, it is necessary to avoid the multiplication of courts of
competent jurisdiction which would heighten the risk of irreconcilable
decisions, this being the reason for which recognition or an order for
enforcement is withheld by virtue of Article 27(3) of the Convention.
19. Furthermore, that objective militates against any interpretation of
the Convention which, otherwise than in the cases expressly provided for,
might lead to recognition of the jurisdiction of the courts of the plaintiff’s
domicile and would enable a plaintiff to determine the competent court by
his choice of domicile.
20, It follows from the foregoing considerations that, although by virtue of
[Bier], the expression 'place where the harmful event occurred' contained
in Article 5(3) of the Convention may refer to the place where the damage
occurred, the latter concept can be understood only as indicating the
place where the event giving rise to the damage, and entailing tortious,
delictual or quasi-delictual liability, directly produced its harmful effects
upon the person who is the immediate victim of that event.
21. Moreover, whilst the place where the initial damage manifested itself
is usually so closely related to the other components of the liability, in
most cases the domicile of the indirect victim is not so related.
In Marinari v Lloyds Bank plc [1995] ECR 1-2719, Mr. Marinari lodged
promissory notes with a face value in excess of $750million with a branch
of Lloyds Bank in Manchester. The Bank refused to return them to Mr.
Marinari and informed the police. This led to Mr. Marinari’s arrest and the
sequestration of the promissory notes. Mr. Marinari brought an action
against the bank in Italy seeking compensation for the damage caused to
him in Italy by the bank.
Basing itself on its decisions in Bier, Dumez and Shevill, the European
Court of Justice made clear that the rule which gave a claimant a
choice of jurisdictions in which to sue was based on the existence of a
particularly close connecting factor between the dispute and courts other
than those of the State of the defendant’s domicile which justifies the
attribution of jurisdiction to those courts for reasons relating to the sound
administration of justice and the efficacious conduct of proceedings. The
court continued:-
13 The choice thus available to the plaintiff cannot, however, be extended
beyond the particular circumstances which justify it. Such extension
would negate the general principle laid down in the first paragraph of
Article 2 of the Convention that the courts of the Contracting State
where the defendant is domiciled are to have jurisdiction. It would lead,
in cases other than those expressly provided for, to recognition of the
jurisdiction of the courts of the plaintiff’s domicile, a solution which the
Convention does not favour since, in the second paragraph of Article 3, it
excludes application of national provisions which make such jurisdiction
available for proceedings against defendants domiciled in the territory of a
Contracting State.
14 Whilst it has thus been recognized that the term ‘place where the
harmful event occurred’ within the meaning of Article 5(3) of the
Convention may cover both the place where the damage occurred and
the place of the event giving rise to it, that term cannot be construed so
extensively as to encompass any place where the adverse consequences
can be felt of an event which has already caused damage actually arising
elsewhere.
15 Consequently, that term cannot be construed as including the place
where, as in the present case, the victim claims to have suffered financial
damage following upon initial damage arising and suffered by him in
another Contracting State.
Although Marinari is dealing with economic loss, it seems to us that the
reasoning in paragraphs 14 and 15 of the judgment is apt to cover the
instant case, where Mr. H. has suffered a deterioration in his condition
whilst living in England following upon initial damage caused in France.
Although we were referred to other cases, including Réunion Européene
v Spliethoff’s Bevrachtingskantoor [1998] ECR 1-6511 and Domicrest
v Swiss Bank Corporation [1999] QB 548, we do not feel these cases
either advance Mr. Brooke’s argument or shed any further light on the
question. There is, accordingly, in our judgment, nothing in the European
jurisprudence which supports Mr. Brooke’s attempt to render Article 5(3)
applicable to the facts of this case, and the passages which we have
cited from Marinari in particular are against it. We see nothing in the
authorities, therefore, which causes us to change the view which we
expressed earlier in this judgment.
As to Mr. Brooke’s reliance on the official report on the Convention (the
Jenard Report), we do not think that this assists him. The relevant
passage, headed Forum delicti commissi, deals with both Articles 5(3) and
5(4)[2], and is largely taken up in setting out the countries and bi-lateral
treaties in which the jurisdiction was recognised before the Convention
came into force. The fact that the jurisdiction was so widely recognised,
M. Jenard states, was “a ground for including it in the Convention,
especially in view of the high number of road accidents”.
The only paragraph dealing specifically with Article 5(3) reads: -
Article 5(3) uses the expression “the place where the harmful event
occurred.” The Committee did not think it should specify whether that
place is the place where the event which resulted in damage or injury
occurred, or whether it is the place where the damage or injury was
sustained. The Committee preferred to keep to a formula which has
already been adopted by a number of legal systems (Germany, France).
This is plainly a formulation into which Bier fits neatly, but, in our
judgment it is no more than that. It simply provides a template for the
court to use when examining the facts of a given case to see if they fit
within Article 5(3). It cannot, we think, add anything to, or detract from
the jurisprudence of the European Court of Justice to which we have
referred.
Accordingly, if and to the extent that the Senior Master prayed the Jenard
Report in aid in reaching his conclusion, he was wrong to do so.
Mr. Brooke frankly acknowledged, in argument, that one of the reasons
Mr. H. had been advised to bring proceedings in England was that the
award he was likely to receive in this jurisdiction would be greater than
the award he would receive in France. At the same time he acknowledged
that were there to be still further aggravation and were the French law to
change to produce more generous awards, Mr. H. might well be advised to
return to the Tribunal.
Whilst we cannot but have sympathy for Mr. H., whose life has been
blighted by his injuries sustained in the accident, we think there is
some force in the submission made by the Appellants that the definition
of ‘harmful event’ for which Mr. Brooke argues could result in forum
shopping at will simply by a claimant moving to live in a different
jurisdiction. Were a choice of jurisdictions genuinely open to Mr. H., he
would plainly be well advised to choose that which was likely to give
him the greater award. The fact that he would get more in England than
in France cannot otherwise, however, be a good reason for conferring
jurisdiction on England.
For all these reasons, the Senior Master was in our judgment wrong to
find that the English courts had jurisdiction to entertain Mr. H.’s claim. His
order must, accordingly, be set aside and the proceedings dismissed.
It also follows that we do not need to address the additional grounds of
appeal in relation to lis pendens and Articles 21 and 22 of the Convention.
For completeness we should add that we were invited by Mr. Brooke, if we
felt it necessary, to adjourn the proceedings for a reference to be made
to the European Court of Justice on the applicability of Article 5(3) of the
Convention to the facts of this case. Mr. Brooke helpfully produced draft
questions to be put to the court. In the event, we think that the European
jurisprudence on the issue is clear, and that the view which we have
formed is consistent with it. We do not, accordingly, think it necessary to
make such a reference.
Order: Appeal allowed with costs. Section 11 order. Application to appeal
to House of Lords refused.
(Order does not form part of the approved judgment)