MR JUSTICE LLOYD:
1. This is the judgment of the court.
2. In the early hours of the morning on 4 July 1995 a series of events
occurred at a holiday resort in Spain which led to two young Englishmen
suffering serious injuries and, in turn, to litigation brought by each of
them. One, Mr B., sued the owner and operator of the accommodation
at the holiday resort in Spain. He failed at first, but on appeal he was
awarded damages for negligence. The other, Mr W., the present Appellant,
brought proceedings in England. At first he sued only the tour operator
who sold him the package holiday, F. C. Holidays and F. Limited ("F. C."),
an English company. Later he joined the Respondent, A. Hotels C. S.A.
("A."), as an additional Defendant. A. applied to have the proceedings
set aside, on the basis that the English courts have no jurisdiction over
the claim against it, a Spanish company. Master Eyre dismissed the
application, but on appeal Mr James Goudie Q.C., sitting as a Deputy
Judge of the High Court, allowed the appeal. With permission granted by
May LJ, Mr W. appeals to this court.
3. The question turns on the application of the Brussels Convention to the
particular circumstances of these proceedings. Mr W. justifies suing A. in
England on the basis of article 6(1) of the Convention. The learned deputy
judge decided against Mr W. in reliance on a passage in the judgment of
the European Court of Justice in Réunion Européenne SA v. Spliethoff's
Bevrachtingskantoor BV and the Master of the Vessel Alblasgracht V002
Case C-51/97 [1998] ECR I-6511 ("Réunion Européenne"). Mr Evans-
Tovey for the Respondent submitted that the position was clear as a
result of that passage, and the appeal should simply be dismissed. Mr
Saggerson for the Appellant submitted first that, despite that passage,
the appeal should be allowed and secondly, in the alternative, that the
position needed to be clarified by a reference to the European Court of
Justice. We have come to the conclusion that a reference is needed in
order that the domestic courts can proceed properly with the matter, for
reasons set out in this judgment.
The facts and the nature of the claim
4. We must start by describing the essential facts briefly, and then the
nature of the claims made against each of the Defendants in the current
proceedings. The facts as regards Mr B. are identical, and after describing
Mr W.'s claims we will refer to Mr B.'s proceedings. So far as Mr W. is
concerned, the facts have not yet been proved, and the summary below is
based on what he alleges.
5. Mr W. bought a package holiday from the First Defendant for a holiday
in Tenerife, Spain, from 30 June to 15 July 1995. He was assigned
accommodation in a block called X. forming part of a large resort complex
at Playa de las Americas. Another part of the resort was a block called C.
P., owned and managed by A.. Early in the morning on 4 July 1995 Mr W.
visited C. P. at the invitation of someone who was staying there. He was
refused entry to the block, and the manager of the block summoned a
security guard. Wielding a baton, the security guard chased Mr W. away
from C. P. into the grounds of the resort. Mr W. ran away, reached a low
wall some 35 cm in height and jumped over it to escape. On the other
side of the wall there was a drop of some 20 metres to a road. Mr W. fell
and was seriously injured.
6. Mr W.'s claim against F. C. is based on the contract by which he bought
the package holiday. He alleges a term of the package holiday contract
by which F. C. accepted responsibility for bodily injury caused to him as a
result of the proven negligent acts or omissions of its employees, agents,
suppliers and sub-contractors and their servants and agents whilst in the
course of their employment.
7. He also alleges implied terms of the package holiday contract that:
i) staff throughout the resort complex, and in particular security staff,
would be adequately trained and supervised, and would have adequate
instructions in respect of their response to the behaviour of visitors
throughout the complex; and
ii) the resort complex would be reasonably safe for visitors in that it would
be free of obvious hazards likely to create an avoidable risk of accident or
injury, or any such hazards would be the subject of suitable warnings.
8. The accident is alleged to have been caused by F. C.'s breach of the
contract, or by the negligence of the managers or proprietors of the
complex or the security guard, for which F. C. is said to be responsible
by reason of the term of the contract mentioned at paragraph 6
above. In summary the security guard's conduct is said to have been
disproportionate, unnecessary and inappropriate, and the result of
inadequate training or supervision, and the grounds of the complex are
said not to have been reasonably safe for visitors because of inadequate
lighting, and because of the absence of any fencing or warning of the 20
metre drop.
9. F. C. has put in a Defence, by which the contract and its alleged terms
are not admitted, the security guard's conduct is said to have been
proper, and Mr W. is alleged to have contributed by his own negligence to
any injuries he suffered.
10. His claim against A. is in tort, and is based on the allegation that A.
was negligent in respect of the behaviour of the security guard and the
manager, and in respect of the lack of lighting, fencing and warning.
11. Thus, apart from the contract between him and F. C., the claim
against the two defendants is based on identical facts. Equally, apart from
different injuries, the same facts provided the basis for Mr B.'s claim.
12. Mr B. sued in Spain. We have seen a translation of the judgment
of the Audiencia Provincial of Santa Cruz de Tenerife given on 22 July
2000 by which an appeal was allowed from the dismissal of the claim
by the lower court. We have not seen any other documents relating to
the proceedings. According to the judgment, the Defendant in those
proceedings was Complejo Hotelero C. P.. Presumably that entity is in
some way associated with the Respondent in this appeal, or it may be the
Respondent under a different name. The appeal was allowed, essentially
on the basis that the failure to take more effective measures against
the risk presented by the low wall was negligent, though Mr B. was also
regarded as having been negligent, and the compensation due to him was
therefore reduced by half. He was awarded 7 million pesetas and just over
£10,000 by way of damages, after this reduction.
The Brussels Convention
13. The basic principle under the Brussels Convention is set out in Article
2, namely that persons domiciled in a Contracting State shall be sued
in the courts of that State. Other provisions of the Convention allow a
different venue, in particular Articles 5 and 6, but these are exceptions
to that principle, and are to be interpreted restrictively, and not so as to
subvert the principle. Thus, Mr W. has no difficulty suing F. C. in England,
Mr B. was able to sue Complejo Hotelero C. P. in Spain, and Mr W. could
sue (or could have sued) A. in Spain.
14. Articles 5 and 6 are headed Special Jurisdiction. In matters relating
to a contract, under Article 5(1), a person domiciled in one Contracting
State may be sued in another Contracting State in the courts for the place
of performance of the obligation in question. In matters relating to tort,
delict or quasi-delict, he may, under Article 5(3), be sued in the courts
for the place where the harmful event occurred. Of more immediate
relevance, under Article 6(1) and (2) a person domiciled in a Contracting
State may also be sued:
"1. where he is one of a number of defendants in the courts for the place
where any one of them is domiciled.
2. as a third party in an action on a warranty or guarantee or in any other
third party proceedings, in the court seised of the original proceedings,
unless these were instituted solely with the object of removing him from
the jurisdiction of the court which would be competent in his case"
15. Because of reliance placed on it in argument, rather than because of
any direct relevance, we also cite Article 22:
"Where related actions are brought in the courts of different Contracting
States, any court other than the court first seised may, while the actions
are pending at first instance, stay its proceedings.
A court other than the court first seised may also, on the application of
one of the parties, decline jurisdiction if the law of that court permits the
consolidation of related actions and the court first seised has jurisdiction
over both actions.
For the purposes of this Article, actions are deemed to be related where
that are so closely connected that it is expedient to hear and determine
them together to avoid the risk of irreconcilable judgments resulting from
separate proceedings."
16. In Kalfelis v. Bankhaus Schröder, Münchmeyer Hengst & Co Case
189/87 [1988] ECR 5565 ("Kalfelis"), the European Court of Justice held
that:
"(1) For Article 6(1) of the Convention to apply there must exist between
the various actions brought by the same plaintiff against different
defendants a connection of such a kind that it is expedient to determine
the actions together in order to avoid a risk of irreconcilable judgments
resulting from separate proceedings.
(2) (a) The terms "matters relating to tort delict and quasi- delict" used
in article 5(3) of the Convention must be regarded as an independent
concept covering all actions which seek to establish the liability of a
defendant and which are not related to a contract within the meaning of
article 5(1).
(b) A court which has jurisdiction under article 5(3) over an action insofar
as it is based on tort or delict does not have jurisdiction over that action
insofar as it is not so based."
17. As regards that last proposition, the Court recognised that
disadvantages arise from different aspects of the same dispute being
adjudicated on by different courts, but pointed out that the entire dispute
against the one defendant can always be heard in one court if the plaintiff
brings his proceedings in the court of domicile of the defendant. That part
of the decision is concerned with combining different claims against the
same defendant in one proceeding brought against him in a Contracting
State other than that of his domicile, whereas the ruling on article 6(1)
is directed at the different question of joining different claims against
several defendants domiciled in different Contracting States in one
proceeding brought in one of those Contracting States.
18. The facts in Kalfelis involved claims by the plaintiff brought in
Germany against a bank established in Luxembourg and against its parent
established in Germany, the claims being based on tort, contract and
unjust enrichment. The Luxembourg bank objected to the jurisdiction
of the German courts. The question referred to the Court, as regards
article 6(1), asked whether a connection between the various claims was
necessary for that article to apply and, if so, whether it was sufficient
to show a simple connection, where the actions against the different
defendants are essentially the same in fact and law, or whether a
closer connection is required. Advocate-General Darmon, proposing
an answer on article 6(1) in essentially the same terms as that given
by the Court, considered a number of different formulations of the
necessary connection. Having stated his preference for a rule related
to the prevention of irreconcilable judgments resulting from separate
proceedings, based on an analogy with article 22, he then referred to
what he called "contradictory decisions". As an example he cited two
actions brought separately against two persons allegedly responsible for
an accident, giving rise to two judgments one upholding the claim and
the other dismissing it "on the grounds that the characteristics of the
damage are such that it cannot be repaired". He said "the decisions are
certainly contradictory, if not irreconcilable." He argued in favour of using
the phrase "contradictory decisions" so as to stress unequivocally that the
choice made favours a solution of sufficient breadth, but neither he in the
answer proposed, nor the Court, in fact used that phrase. It is therefore
unclear whether the avoidance of two such decisions, contradictory as
they would be, is to be regarded as being, or capable of being, a sufficient
connection for the purposes of article 6(1).
19. The House of Lords has had to consider the question of irreconcilable
decisions, albeit in the context of article 22, in Sarrio SA v. Kuwait
Investment Authority [1999] 1 AC 32. With the benefit of the decision of
the European Court of Justice on article 22 in The Tatry (Case C-406/92)
[1994] ECR I-5439, they held that a broad approach was appropriate
rather than one based on close legal analysis of the respective claims. In
principle that seems appropriate under article 6(1) as well. On article 6(1)
itself the Court of Appeal has held that inconsistent findings of fact are as
much a matter of concern in this context as inconsistent conclusions of
law: see Gascoine v. Pyrah [1994] IL Pr 82 at 93.
20. In Réunion Européenne the European Court of Justice had to consider
articles 5(1) and (3) and article 6(1) again. Perishable goods (pears)
were shipped from Australia to the plaintiff, a French company with its
base at Rungis. The carriage was undertaken by an Australian company
(RCC), first by sea to Rotterdam in a Dutch vessel operated by a Dutch
company, and then by road from Rotterdam to Paris. The pears arrived
damaged, the damage being said to be due to a failure of the refrigeration
equipment during the journey. The claim was brought in France against
RCC which had issued a bill of lading, and also against the master of
the vessel and the Dutch company which operated it. The French courts
accepted that they had jurisdiction against RCC, in relation to which no
question arose under the Convention. They did not accept jurisdiction
as regards the other defendants. The Cour de Cassation referred several
questions to the European Court of Justice. The claimants contended that
the claim against the Dutch defendants, the company and the master of
the vessel, was based on tort, not on contract, so that the French courts
had jurisdiction as those of the place where the harmful event occurred,
and also contended that, since all three defendants had taken part in the
same maritime transport operation, the dispute as against all three was
indivisible, which should have justified jurisdiction under article 6(1). The
first three questions referred dealt with article 5.
21. RCC, having issued a bill of lading, were sued in contract. However,
the Dutch defendants were not parties to any contract with the plaintiff,
whatever contract there might be between them and RCC. Accordingly
the European Court of Justice held that the claim against them was not
within article 5(1) as a matter relating to a contract, and that it followed
that it was a matter relating to tort, delict or quasi-delict. The plaintiff
then argued that the place of ultimate delivery in France was the place
where the harmful event occurred (or, at least, one such place), so that
the French courts had jurisdiction under article 5(3). The Court did not
accept this. The Dutch defendants were only concerned with the maritime
transport of the goods, and their task was complete once the vessel
reached Rotterdam and the goods were unloaded there. The Court held
that, in relation to a claim arising from such circumstances, the place
where the damage arose can only be the place where the carrier was
to deliver the goods, and that the fact that the plaintiff only discovered
the damage on the completion of the subsequent carriage by land did
not make the delivery address the (or a) place where the harmful event
occurred so as to justify jurisdiction under article 5(3). Thus, proceedings
in France against the Dutch defendants were not justified either under
article 5(1) or under article 5(3). Proceedings in the Netherlands would of
course have been possible as it was the country of domicile of the Dutch
defendants, but it may be that RCC could not have been sued there.
22. The fourth question referred to the Court was concerned with article
6(1), in the following terms:
"May a defendant domiciled in the territory of a Contracting State be
brought, in another Contracting State, before the court hearing an action
against a co-defendant not domiciled in the territory of any Contracting
State, on the ground that the dispute is indivisible rather than merely
displaying a connection."
23. Given the terms of article 6(1), "in the courts for the place where any
one of them is domiciled", and the clear requirement that the proceedings
should have been brought in a Contracting State in which one of the
defendants is domiciled, it seems a little surprising that any question
was thought to arise under article 6(1) at all, since RCC was domiciled
in Australia and no defendant was domiciled in the Contracting State in
which the proceedings had been brought, namely France. The wording
of the question, with its mention of the dispute being indivisible rather
than merely showing a connection, does not explain why it was thought
possible to argue in favour of jurisdiction under the Convention in the
French courts, since the concept of indivisible claims does not appear in
the Convention nor, so far as we are aware, in the jurisprudence relating
to the Convention. Nor do the opinion of Advocate-General Cosmas or
the judgment of the Court cast light on the perceived relevance of the
indivisible nature of the claims, which as the Advocate-General says is a
concept of national law. The Court's ruling was that a defendant domiciled
in a Contracting State cannot be sued in another Contracting State before
a court seised of an action against a co-defendant not domiciled in a
Contracting State on the ground that the dispute is indivisible rather than
merely displaying a connection.
24. In the course of the judgment, as well as of the opinion of the
Advocate-General, reference was made to the nature of the connection
that must exist under article 6(1). The Court referred to the decision in
Kalfelis that such a connection was necessary, and continued as follows:
"49. In that connection the court also held in Kalfelis that a court which
has jurisdiction under article 5(3) of the Convention over an action insofar
as it is based on tort or delict does not have jurisdiction over that action
in so far as it is not so based.
50. It follows that two claims in one action for compensation, directed
against different defendants and based in one instance on contractual
liability and in the other on liability in tort or delict cannot be regarded as
connected."
25. That last paragraph is the foundation of the argument for A. for
saying that it cannot be joined under article 6(1) in the same action as
the claim against F. C., and that was the basis for the judgment now
under appeal.
Is there a sufficient connection for article 6(1)?
26. Mr Saggerson submitted that the claim against F. C. was not (in the
language of paragraph 50 of Réunion Européenne) a claim based on
contract, because it is based on the delictual liability of A.. We cannot
accept that. We assume that the phrase "based on" in paragraph 50 of
Réunion Européenne was used as an abbreviation for "a matter relating
to" contract or tort, the phrase used in articles 5(1) and 5(3). In terms
of the classification system of the Brussels Convention, the claim against
F. C. is a matter relating to contract and the claim against A. is a matter
relating to tort, delict or quasi-delict.
27. Mr Saggerson next submitted that paragraph 50 of the Court's
judgment in Réunion Européenne is not necessary for the decision, and
should not be followed. Mr Evans-Tovey, by contrast, submitted that the
paragraph is clear and considered, and should be followed, as the judge
below did, by holding that the two claims are not connected sufficiently
for article 6(1).
28. It seems to us that, although paragraph 50 of Réunion Européenne is
undoubtedly clear, the full implications of the position there set out may
possibly not have been considered by the Court. It leads to what, from a
national point of view, seem be some rather arbitrary distinctions, if it is
to be understood as laying down a strict rule according to the legal basis
of the respective claims.
29. In terms of facts and of law, there appears to be a substantial
connection between the claims by Mr W. against F. C. and against A..
The facts to be investigated are the same, apart from the addition of the
contract between Mr W. and F. C.. The liability of F. C., as alleged, is based
on the fault of A.. Moreover, the contractual liability of a tour operator
in these circumstances is bound to extend to cover the consequences
of events which would give rise to tortious or delictual liability on the
part of another, because of the requirements of the Directive on Package
Travel, Package Holidays and Package Tours, 90/314/EEC, which was
implemented in English law by the Package Travel, Package Holidays
and Package Tours Regulations 1992, S.I. 1992/3288. These regulations
include the following, by which effect is given to paragraph 1 of Article 5
of the Directive:
"15(1) The other party to the contract is liable to the consumer for the
proper performance of the obligations under the contract, irrespective of
whether such obligations are to be performed by that other party or by
other suppliers of services but this shall not affect any remedy or right of
action which that other party may have against those other suppliers of
services."
30. Terms at least as protective of the consumer, in this respect, are
in any event required as a term of the ABTA Code of Conduct for Tour
Operators.
31. Thus, it is inherently likely that there will be claims arising from
package holidays brought against tour operators in contract as a result of
the negligent supply of the holiday services for which a foreign supplier is
responsible. That supplier's fault is likely to give rise to a direct claim in
tort or delict by the consumer, in addition to the contractual claim by the
consumer against the tour operator and, moreover, a possible contractual
claim by way of indemnity by the tour operator against the local supplier,
to cover the liability of the tour operator to the consumer. The factual
basis of all those claims will be the same. If they cannot be brought in
the same jurisdiction there is clearly a risk of irreconcilable, or at the very
least of contradictory, results in different cases.
32. In the present case, Mr W. clearly can sue F. C. in England, as he
has done. Presumably, F. C. could, if it wanted to, proceed against A. for
an indemnity in third party proceedings in England under article 6(2).
The question is whether Mr W. can also join A. in the main proceedings.
He could sue A. in Spain. Could he proceed against F. C. in Spain? If Mr
Evans-Tovey is right he could not do so in reliance on article 6(1). Possibly
he could do so by justifying the claim against F. C. under article 5(1), on
the basis that Spain was the place of performance of the obligation in
question. However, it is necessary to identify the particular obligation and
its place of performance, and there could be scope for argument as to
whether the obligation, being to pay compensation for defective service
by suppliers, might require performance in the UK, rather than in Spain.
It may not be altogether clear, therefore, whether both parties could be
sued in Spain, in reliance on article 5(1) rather than 6(1) as against F. C..
33. Different factual situations might be envisaged in which, if what
was said in paragraph 50 of Réunion Européenne is applied as an
inflexible rule, anomalous distinctions would have to be drawn as regards
jurisdiction. Suppose that an individual, A, based in England, purchases
an item from a shop in England run by an English domiciled company,
E, but which was made in Spain by a Spanish manufacturer, S. Suppose
then that A travels to France taking this item with him, where, being
defective, it causes him injury. A could sue E in England and S in Spain.
His claim against E would be a matter relating to contract, but against S
his claim would be in tort or delict. According to paragraph 50 of Réunion
Européenne, therefore, he could not join the claim against S to his English
proceedings against E on the basis of article 6(1), nor his claim against
E to his Spanish proceedings against S. He could sue S in France, as the
place where the harmful event occurred, in the sense of the damage
being suffered, but he could not sue E in France on any basis. It seems
unlikely that he could assert plausibly that he could sue S in England
as the place where the wrongful act occurred – that is more likely to
have been in Spain. Accordingly, on the basis of paragraph 50 of Réunion
Européenne, there seems to be no single jurisdiction in which A could sue
both E and S, despite the clear connection between the two claims.
34. If, to vary the example, the event by which the item in question
injured A also resulted in an injury to a member of his family, B, as well,
the anomaly becomes greater, because B has no claim in contract, and
is therefore not affected by what is said in paragraph 50 of Réunion
Européenne. B can sue E in England, and join S under article 6(1), or can
sue S in Spain and join E to that claim on the same basis.
35. Thus the two plaintiffs would each have claims against two defendants
based on exactly the same facts. If the claims were brought in separate
proceedings they would clearly give rise to risks of irreconcilable results.
On the part of one plaintiff, both claims could be brought in either of two
jurisdictions against both defendants. On the part of the other plaintiff,
they would have to be brought against the two defendants separately in
proceedings in different Contracting States, with potentially inconsistent
results. The only relevant difference between the two is that the second
plaintiff's remedy against one defendant lies in contract. This does
not seem to be an adequate basis for the different position of the two
plaintiffs.
36. One point on which Mr Evans-Tovey placed some emphasis is the risk
of inconsistent findings if Mr W. is allowed to proceed against A. here, that
is to say of inconsistency between the result of the Spanish proceedings
by Mr B. and the English proceedings by Mr W.. That risk does arise where
there are several plaintiffs with claims resulting from one set of events,
and where they have a choice of jurisdictions in which to proceed. A.
would not be entirely immune from this risk even if article 6(1) does not
permit it to be sued by Mr W. in England, because it might be faced with a
third party claim by F. C. in the present proceedings, justified under article
6(2), whereby F. C. could seek recovery of any sums which it has to pay
to Mr W. if its liability to him is established.
37. But for what the Court said at paragraph 50 of the judgment in
Réunion Européenne, we would hold that the fact that one claim is
based on contract and the other on tort is, at most, only one factor to be
considered in deciding whether the connection shown between different
claims by one plaintiff against two or more defendants is sufficient, on the
basis of whether it is expedient to allow the claims to be joined in order to
avoid irreconcilable judgments.
38. We have to say also that we do not understand why the rigid
distinction under article 6(1) follows from the finding of the court in
Kalfelis under article 5(3). Of course, jurisdiction against one defendant
under article 6(1) cannot be based on having established jurisdiction
against another defendant under article 5(1) or (3), rather than
under article 2. Equally, jurisdiction under article 5(1) does not justify
jurisdiction against the same defendant for a claim under article 5(3),
which has to be justified on its own terms. But it is not clear to us why
the decision as to whether a sufficient connection is shown to justify
proceeding under article 6(1) should depend on the characterisation of
the respective claims, by itself, or on any analogy with the quite different
rules for special jurisdiction under article 5. It seems to be a different
type of test from that based on the need to avoid irreconcilable judgments
which is the basis of the decision in Kalfelis on this point.
39. Despite our doubts about the underlying basis for the statement in
paragraph 50 of Réunion Européenne, this court cannot ignore it. On the
other hand, it seems to us that, in the light of those doubts, it would not
be right simply to dismiss the appeal, on the basis that that paragraph
does represent the law. It would, or might, be otherwise if the paragraph
had found its way into the Court's ruling on the fourth question, or if
it had been necessary as part of the reasoning leading to that ruling.
However, the Court could have dealt with that question, as in its ruling it
did in effect, by saying that, whatever the connection between two claims,
one against a defendant domiciled in one Contracting State and the other
against a defendant not domiciled in any Contracting State, it could not
justify bringing proceedings in another Contracting State against the first
of these defendants.
40. Mr Evans-Tovey argued that the fourth question referred to the
Court in Réunion Européenne involved two elements, the second being
the nature of the connection required under article 6(1), and that the
Court therefore had to address that aspect of the question, and could not
content itself by ruling on the basis that, without a defendant domiciled
in a Contracting State and sued in that State, article 6(1) cannot apply
at all. He therefore submitted that paragraph 50 was necessary for the
Court's decision, and should be regarded as being as fully considered as
any other aspect of the decision. Since this point does not feature in the
ruling of the Court, it does not seem to us that the Court approached the
question in this way. If the case were not to be referred to the European
Court of Justice, there might be some doubt as to whether this passage
from the judgment formed part of the "principles laid down" by the Court,
in accordance with which, as well as with any relevant decision of the
Court, this court is required to determine any question as to the meaning
or effect of article 6(1): see section 3(1) of the Civil Jurisdiction and
Judgments Act 1982.
A reference is necessary
41. In the light of those considerations, we reject both Mr Evans-Tovey's
submission that the appeal should be dismissed, and Mr Saggerson's
submission that it should be allowed. In our judgment this court needs
guidance from the European Court of Justice, before determining the
appeal, as to whether the statement in paragraph 50 of the judgment in
Réunion Européenne is a rule applying to article 6(1) or whether the fact
that one claim relates to contract and the other to tort, delict or quasi-
delict is no more than one of the factors to be taken into account by the
national court in deciding whether a sufficient connection exists between
the respective claims to justify adding as a party to proceedings brought
in one Contracting State against a party domiciled in that State, another
party domiciled in a different Contracting State.
42. For those reasons, we shall order that the matter be referred to the
European Court of Justice for preliminary rulings. We set out below the
four questions to be referred. The third and fourth questions deal, in a
general and a more specific way respectively, with the issue of the impact
of the statement at paragraph 50 of the Court's judgment in Réunion
Européenne on these proceedings. The need for rulings on this issue is
explained earlier in this judgment.
43. The first question arises from the considerations mentioned in
paragraph 36 of this judgment. The application of article 6(1) to
proceedings by Mr W. against both F. C. and A. can avoid the risk of
irreconcilable judgments as between Mr W., on the one hand, and each
of the two Defendants on the other, but it cannot avoid the risk of
irreconcilable judgments against A. in claims by, on the one hand, Mr
W. and, on the other, Mr B.. It seems to us that it should be sufficient,
in accordance with Kalfelis, to justify the application of article 6(1) that
the court can thereby avoid the risk as between claims by one Claimant
against two different Defendants. To permit the use of article 6(1) only
where this can eliminate all risks of irreconcilable judgments as between
different Claimants as well as different Defendants would limit the scope
of the article too narrowly. However, since the European Court of Justice
is to be asked to provide clarification about the connection which is
necessary according to Kalfelis for article 6(1) to apply, it would be helpful
for this question, which arises from the facts of this case and could
therefore affect the result of the appeal, to be clarified at the same time.
44. The same is true of question (2), as to whether judgments would
be irreconcilable for this purpose if they would be based on inconsistent
findings of fact, or only if they would be based on inconsistent conclusions
of law. In this court that point is concluded by Gascoine v. Pyrah, as
noted at paragraph 19 above. The reasoning in that judgment seems to
us persuasive. However since the point has been argued, and relates to
the characteristics of the connection needed for article 6(1) to apply, and
could be relevant on the facts of this case, it seems appropriate to ask the
European Court of Justice for its ruling on this point as well.
45. The questions to be referred are as follows:
(1) Is there a connection between claims which is sufficient to justify
the application of Article 6(1) of the Convention only where the risk
of irreconcilable judgments can be avoided altogether, or may it exist
where it is possible by means of Article 6(1) to avoid that risk as regards
judgments affecting the parties to the proceedings to which Article 6(1)
would apply although some risk of irreconcilable judgments would remain
as between those proceedings, on the one hand, and a claim or claims
involving one or some of those parties and one or more other parties, on
the other hand?
(2) May a connection between claims which is sufficient to justify the
application of Article 6(1) exist where the risk of irreconcilable judgments
arises from possible inconsistent findings of fact, or can it only be based
on possible incompatible holdings of law?
(3) If proceedings have been brought in the courts of a Contracting
State against a Defendant domiciled in that State for a claim in a matter
relating to contract, does Article 6(1) permit the Claimant to join as an
additional Defendant a person domiciled in another Contracting State
against whom his claim amounts to a matter relating to tort, delict or
quasi-delict and not a matter relating to contract, where (unless such a
conclusion is precluded by the different legal nature of the two claims) the
national court is satisfied that the connection between the claims against
the two Defendants is of such a kind that it is expedient to determine
the claims together in order to avoid the risk of irreconcilable judgments
resulting from separate proceedings?
(4) May the Claimant join the Second Defendant in reliance on Article 6(1)
in the circumstances described in question (3) above, where
(a) the first claim is under a contract for a package holiday under which
the First Defendant, the organiser or provider of the holiday, accepts
responsibility for bodily injury to the Claimant caused by negligent acts or
omissions of its agents, suppliers and sub-contractors and their servants
and agents whilst in the course of their employment, and
(b) the second claim is a claim in the tort of negligence against the
Second Defendant, who is one of the First Defendant's agents suppliers
or sub-contractors, and the claim is based upon the negligence of one
or more of the Second Defendant's employees or agents in the course of
their employment?