Neutral Citation Number: [2016] 
 EWCA
  
Civ
  
1311 
  Case No: A3/2015/1506 (A) & (B ) 
IN THE COURT O F APPEAL (
 CIVIL
  DIVISION)  
ON APPEA L FROM  
IN THE HIGH COURT OF JUSTICE  
CHANCERY DIVISION  
MR ANDREW HOCHHAUSER QC SITTING AS A DEPUTY HIGH COURT 
JUDG E 
[2015] EWHC 836 (Ch )  
  Royal Courts of Justice  
Strand, London, WC2A 2L L 
  21/12/201 6 
B e f o r e :  
LORD JUSTICE LEWISON  
LORD JUSTICE CHRISTOPHER CLARKE  
and 
LORD JUSTICE FLAU X 
____________________  
Between:  
 
 ACTIAL FARMACEUTICA LDA  Appellant  
 - and -  
 (1) PROFESSOR CLAUDIO DE SIMONE  
(2) MENDES SRL  
(3) MS FLORENCE PRYEN  Respondents  
____________________  
Mr John Wardell QC and Mr Rory Brown (instructed by Lipman Karas LLP) 
for the Appellant  
Mr Andrew Sutcliffe QC and Mr Gregory Mitchell QC (instructed by Fitz 
Solicitors) for the Respondent  
 
Hearing dates: Tuesday 13 and Wednesday 14 De cember 2016   
____________________  
HTML VERSION OF JUDGMENT APPROVED
 
____________________  
Crown Copyright ©  
Lord Justice Flaux:  
Introduction and background   
1. The appellant (to which I will refer as "Actial") appeals against the decision of 
Mr Andrew Hochhau ser QC, sitting as a Deputy High Court Judge in the 
Chancery Division, that the High Court does not have jurisdiction over the 
Respondents under Article 5(3) of the Judgments Regulation 44/2001 or 
Article 5(3) of the Lugano Convention 2007. The learned jud ge gave 
permission to appeal in respect of the claims against the first respondent (to 
whom I will refer as "the Professor") and the second respondent (to which I 
will refer as "Mendes Italy") but not the claim against the third respondent.  
2. The factual ba ckground to this matter is helpfully summarised by Kitchin LJ 
in [1] to [17] of his judgment of 1 July 2015 giving permission to the 
Professor to appeal against an order by the judge granting certain interim 
interlocutory relief to Actial pending the heari ng of the present appeal. We 
gratefully set out and adopt that summary:  
"2. The Professor, an Italian professor of medicine, has devised a probiotic 
food product consisting of live freeze dried pure lactic acid bacteria which is 
called VSL#3 ("the Product "). It is said to contain eight different strains of live 
bacteria and have a far higher concentration of beneficial bacteria than any 
other such product available on the market. It is available over the counter and 
on prescription from the National Health  Service. The Professor claims that he 
is the owner of valuable confidential information concerning the growth, 
analysis and precise mix of these eight  strains.  
3. Some 15 years ago the Professor entered into a joint venture agreement with 
Paolo and Claudi o Cavazza, who were wealthy Italian businessmen. Claudio 
Cavazza has since died. One of the main purposes of this joint venture 
agreement was to exploit the Product. The Professor was responsible for its 
composition and the Cavazza brothers were responsibl e for its funding, 
distribution and sale. The Cavazza brothers had considerable experience in the 
pharmaceutical sector and were, at the material time, majority shareholders in 
the Sigma Tau group of research based pharmaceutical companies with over 
2500 e mployees across the world.  
4. For reasons which are not material to the present dispute, the Cavazza 
brothers and the Professor did not want the Product to be sold through the 
Sigma Tau group so they set up a new joint venture company referred to as 
"CD Lu xembourg". It is owned by various companies which represent the 
interests of the Cavazza family and the Professor. The Professor's interest was 
originally held by a Luxembourg company referred to as 
"Mendes  Luxembourg" but that was recently dissolved and i ts shares in CD 
Luxembourg were transferred to a company referred to as "Mendes Italy", 
which is another company controlled by the Professor or other members of his 
family. CD Luxembourg is itself the owner of three operating companies 
which it controls th rough its Italian subsidiary referred to as "CD  Italy". These 
three subsidiaries have been referred to as "VSL", "CD India" and the 
claimant, Actial. They are each responsible for different territories with Actial 
responsible for most of Europe including t he United Kingdom.  
5. On 29 May 2006 the Professor and Actial entered into an agreement, 
referred to as the "2006 UK Know -How Agreement". Actial contends that it is 
clear from the terms of this agreement that it has the sole right to make and 
sell the Prod uct in the UK. There can be no doubt that Actial is also the owner 
of the Community trade mark for VSL#3. The Professor accepts that he signed 
the 2006 UK Know -How Agreement but argues it was a sham and that it was 
never intended to have contractual effect . Be that as it may, he has not 
disputed that he has received substantial payments amounting to several 
million Euros pursuant to its provisions and similar provisions in various other 
agreements. For some time Actial has obtained the Product by placing 
purchase orders with an American manufacturer ("Danisco") which since 2011 
has been owned by Dupont. Danisco makes the Product from the eight  strains 
of bacteria and then exports it in bulk to Italy and the Netherlands for 
packaging. In Italy the bulk packag ing is carried out by a company referred to 
as "SIIT" and in the Netherlands by a company referred to as "Sanico". Once 
packaged, the Product is supplied by Actial through its distributors across 
Europe.  
6. In June 2006 Actial entered into an exclusive dis tribution agreement with an 
English company referred to as "Ferring UK". Under the terms of that 
agreement Actial agreed to sell or have sold the Product to Ferring UK and 
Ferring UK agreed to purchase all of its requirements of the Product [as] 
supplied b y Actial through its distributors across Europe.  
7. In these proceedings Actial contends that in or about June or July 2014 the 
Professor and Mendes Italy embarked on a dishonest scheme unlawfully to 
wrest control of the manufacture and distribution of th e Product from the joint 
venture with the intention of channelling sales of the Product through a rival 
business. Moreover, so Actial contends, the Professor embarked on this 
scheme while he was still a director of Actial. More specifically, it continues, 
the Professor sought to cut off supplies of the Product to Actial by preventing 
it from obtaining supplies from Danisco, removing Actial as a designated 
supplier and so preventing it from fulfilling its obligations to Ferring UK 
under the distribution agre ement.  
8. There is no dispute that by the autumn of 2014 Actial was unable to make 
further supplies to Ferring UK and as a result Ferring UK became desperately 
short of stock which it had to ration. Accordingly, and in order to ensure that 
supplies of the Product to Ferring UK were not unduly disrupted, Actial 
signed a waiver letter in about November 2014, which permitted Ferring UK 
to obtain supplies of the Product from its associated company referre d to as 
"Ferring Italy", which in turn obtained them from a Swiss company, referred 
to as "Mendes Switzerland". Actial maintains that there is compelling 
evidence that the Professor controls Mendes Switzerland and indeed has 
appointed that company as the s ole authorised distributor of the Product for 
Europe and Asia. This is disputed by the Professor.  
9. Actial maintains that this waiver letter provided it with little comfort. It says 
that supplies made pursuant to the waiver did not generate any income at all 
for Actial or its parent, CD Italy. Accordingly, it refused to countenance a 
second waiver and on 10 December 2014, and believing that Ferring UK was 
on the verge of running out of supplies again, sought urgent without notice 
relief, requiring the Prof essor to reinstate it as an authorised supplier. This 
application was granted by Mr Kevin Prosser QC sitting as a deputy judge in 
the Chancery Division and, at Actial's request, he also directed the Professor 
to inform Danisco that it was entitled to sell to Actial the actual bacterial 
strains used in the manufacture of the Product.  
10. A few days later, the Professor instructed English solicitors and counsel, 
who wrote to the court apologising for the fact that the Professor had not 
complied with the manda tory injunction and explaining that to do so would 
result in the irretrievable loss of trade secrets.  
11. On 18 December 2014 the matter came before Norris J who made an order 
which was designed to hold the ring until the matter could return to court to be  
fully argued. In broad terms, and upon Actial giving an undertaking to provide 
security in the sum of 400,000 Euros and not to attempt to clone, reproduce, 
reverse engineer or otherwise modify the finished Product supplied pursuant to 
Ferring UK's orders,  the order required the Professor to instruct Danisco to 
supply to the Netherlands and Italian packaging agents (SIIT and Sanico) 
sufficient Product to enable Actial to fulfil orders placed by Ferring UK which 
were consistent with its past pattern of tradi ng, including any reasonable 
growth in such trading. The Professor duly instructed Danisco in those terms 
and on 8  January  2015 Ferring UK placed an order with Actial for stock worth 
in excess of 640,000 Euros. This was satisfied by deliveries made in late  
March  2015.  
12. Two further matters arise from the order made by Norris J which I should 
mention at this stage. The first is that Actial also gave an undertaking to make 
and serve an affidavit setting out any steps that it had taken to modify the 
Product.  In compliance with that undertaking, an affidavit was made and 
served which explained that some reverse engineering had been carried out by 
CD Italy in June and July  2014 because of a concern that the version of the 
Product being sold in the market might not contain the ingredients detailed on 
the product packaging, and as a result of an inspection by the Italian health 
and safety authorities. The second is that the Professor also complained that 
there had been a breach of this order in that on 12  January  2015 Actial placed 
an order with Danisco for bulk Product with a direction that this was to be 
shipped to an unknown packaging agent called Nutrilinea. Actial responded to 
this further allegation saying this was not an additional order to the January 
order  to which I have referred but corresponded to it, but in the light of the 
Professor's concerns, the bulk order to Danisco was re -issued stipulating that 
Danisco should send the bulk to SIIT.  
13. Actial's application for interim injunctive relief came befor e Mr 
Hochhauser QC sitting as a deputy judge of the Chancery Division on the 
13th, 14th and 16th January 2015. His reserved judgment was handed down on 
31st March 2015. He held that the court had no jurisdiction to hear the claims 
as presently formulated. However, he explained that if he had found that the 
court did have jurisdiction he would have been willing to grant interim relief 
in similar terms to that granted by Norris J until trial or further order, subject 
to putting in place a mechanism to ensure that it would have worked more 
smoothly and consideration being given to whether to require further 
fortification of Actial's cross undertakings in damages.  
14. On 20th April 2015 there was a hearing before the deputy judge to 
determine various consequenti al matters. He gave Actial permission to appeal 
against his ruling on jurisdiction and also gave directions in relation to a late 
application by Actial for further interim relief pending that appeal. This further 
application came on for hearing on 7th May 2015 and at its conclusion the 
deputy judge gave judgment and made the order [to which that appeal related].  
15. In substance the deputy judge made an order requiring the Professor, 
within 48 hours of his solicitors receiving notice that Actial had increas ed the 
security paid into court to 500,000  Euros, to give an instruction to Danisco to 
supply to one of Actial's two packaging agents, namely SIIT or Sanico, 
sufficient bulk Product to enable Actial to fulfil an order placed by Ferring UK 
on 13th April 201 5 for supplies of Product with a value in excess of 1.6 
million Euros. Actial gave an undertaking that it would not intercept or take 
samples of bulk Product delivered by Danisco to its packaging agents pursuant 
to the order and it would not "attempt to cl one, reproduce, reverse engineer or 
otherwise modify the finished [Product] supplied pursuant to Ferring UK's 
order referred to in [the body of the order]". Very shortly afterwards, the 
Professor applied in writing to the deputy judge for permission to app eal and 
for a stay of his order. Both applications were refused by the deputy judge on 
14th May 2015.  
16. On the same day, 14th May 2015, Actial's solicitors gave notice that the 
security had been increased with the result that the May order fell to be 
complied with by midday on 16th May 2015. Meanwhile, on 15th May 2015, 
the Professor's solicitors filed an appellant's notice with this court seeking 
permission to appeal against the May order, a stay pending determination of 
their application and, if permiss ion was granted, a further stay pending the 
hearing of the substantive appeal. Four days later, the Professor's solicitors 
informed Actial's solicitors that the Professor was aware of the May order but 
was awaiting a decision of this court on the applicati ons for a stay and 
permission to appeal. The following day, 20  May 2015, Actial issued a 
committal application against the Professor for failure to comply with the May 
order.  
17. On 21st May 2015 Actial issued a further application for an order under 
CPR 6 .15(2) deeming service of the committal application on the Professor's 
solicitors by email and courier as good service on the Professor himself, rather 
than having to serve him under the provisions of the Hague Convention. That 
application came before Aspl in J on 8th June 2015. She granted the 
application, made the June order and refused the Professor's application for 
permission to appeal. She also adjourned the hearing of Actial's committal 
application to 12th June 2015 in order to give the Professor an o pportunity to 
apply for expedition of his application to this court for a stay of the May order. 
Then, on 9th June 2015, the Professor's solicitors applied to this court for 
permission to appeal against the June order and a direction that the application 
for permission be determined prior to the hearing of the committal application. 
On 11th June 2015 Ryder LJ made an order on the papers granting a stay of 
the May order pending an expedited hearing of the Professor's applications for 
permission to appeal and  a continuation of the stay until the outcome of those 
applications was known."  
3. Kitchin LJ then gave permission to appeal at a contested hearing on 1 July 
2015 and the appeal was heard by this Court (Jackson, Kitchin and Ryder LJJ) 
on 6 August 2015 and di smissed. There was a further hearing before Mr 
Hochhauser QC on 5 October 2015 of Actial's contempt application against 
Professor and of his application to vary the May order. The judge dismissed 
the variation application, held the Professor to be in conte mpt of court and 
imposed a fine.  
4. Until shortly prior to the hearing of the present appeal, this history of the relief 
sought by Actial was of some significance as the respondents contended in 
their Respondent's Notice that the judge's judgment should be u pheld on the 
additional ground that there had been material non -disclosure by Actial on the 
without notice application, which the judge should have held merited the 
discharge of the order made on the without notice application and the refusal 
of any furthe r injunctive relief. However, in supplemental written submissions 
dated 22 November 2016, Actial stated that, in the event of its appeal 
succeeding, it no longer required any mandatory relief requiring the Professor 
to notify Danisco that Actial is an auth orised supplier. In the circumstances, 
the matters raised by the original Respondent's Notice are no longer relevant 
and do not need to be decided.  
The claims of Actial   
5. The Amended Claim Form issued on 12 December 2014 prior to the return 
date before Nor ris J sought (in addition to the injunctive relief no longer 
pursued) damages sustained by reason of (i) an unlawful means conspiracy 
whereby the Professor and Mendes Italy sought to take control of the 
marketing and distribution of VSL#3 with the intentio n of injuring Actial and 
(ii) unlawful interference by the Professor and Mendes Italy with Actial's 
business. Although no Particulars of Claim have yet been served, from the 
evidence before the judge he set out at [54] to [63] of his judgment the 
allegatio ns being made by Actial to support its case of conspiracy and 
unlawful interference with its business.  
6. In summary, the nature of the conspiracy and the overt acts relied upon by 
Actial are as follows:  
(1) Between May 2014 and August 2014 Mendes Italy sou ght to interpose 
itself between Danisco and Actial by the Mendes Offer Letter under which all 
supply and processing, payments and import duties were transferred from 
Actial to Mendes Italy. Actial contends that the purpose of this was to wrest 
control of t he supply relationship with Danisco from Actial. At the time the 
Professor was still a director of Actial (indeed he remained a director until 9 
September 2014), so that by this means, in breach of fiduciary duties he owed 
Actial as a director, he has soug ht unlawfully to make a profit for Mendes 
Italy.  
(2) In about late June 2014, a new supply agreement was entered into between 
Danisco, VSL and the Professor expressed to be effective from 1 January 
2014. Actial was excluded from the list of authorised buye rs under that 
Agreement. The Professor's explanation is that he was concerned that Actial 
was seeking supplies of VSL#3 in order to clone it. Actial relies upon the fact 
that he was still a director when he entered into that Agreement, which was 
clearly co ntrary to Actial's interests.  
(3) At a shareholders' meeting of CD Italy, the parent company of Actial, on 5 
June 2014, the Professor decided not to accept reappointment as a director. At 
1pm on 9 June 2014, all five of CD Italy's employees resigned witho ut notice 
and left the premises. The new board of directors hired an IT consultant to 
investigate what had happened. He found that there were no databases of 
electronic mail on the computers and fake files had been created on 9 June 
2014 to overwrite exist ing files, evidently to effect a "secure wipe" of the 
computers. He concluded from what he found that there had been a deliberate 
act of destruction and the computers had been wiped simultaneously. Actial's 
case is that the mass resignation and deletion of  databases were orchestrated 
by the Professor, who disputes this.  
(4) On 9 August 2014, Mendes Italy sent a further letter to Actial referring to 
Actial having accepted the terms of the Mendes Offer Letter and stating that 
Actial owed Mendes Italy some €278,000 for various purchase orders and that 
there were new payment terms. These were unilaterally imposed and required 
invoices to be settled on receipt, rather than, as previously, within 45 days of 
customs clearance. It stated that, in the event of non -payment, goods would no 
longer be available to Actial.  
(5) On 17 September 2014, Actial made that payment by wire transfer and 
then wrote rejecting the new payment terms. Mendes Italy returned the 
payment in full on 29 September 2014. Actial contends that t his was all a 
sham engineered by the Professor and Mendes Italy with a view to cutting off 
all supplies to Actial. That was reinforced by discovery of a letter to Ferring 
SpA in Italy in which Mendes Italy said it intended to cease manufacturing the 
Produc t and Mendes Switzerland had taken over this activity instead.  
(6) When Actial approached Danisco with a view to reopening its original 
supply lines, it was met with the objection that after the execution of the 2014 
Danisco Agreement, Actial was no longe r an authorised distributor.  
7. The events thereafter are summarised in the judgment of Kitchin LJ which I 
have set out at [2] above. In his oral submissions before us on behalf of Actial, 
Mr John Wardell QC emphasised that the overt acts and the unlawful me ans 
did not include breach of the 2006 UK Know -How Agreement, to which, in 
any event, Mendes Italy were not a party. Rather, the claim against the 
Professor was firmly rooted in breach of his fiduciary duties owed to Actial as 
a director.  
8. This analysis was disputed by Mr Andrew Sutcliffe QC. Apart from 
emphasising that the allegations of conspiracy are hotly disputed by the 
Professor, Mr Sutcliffe QC took us through the submissions made on behalf of 
Actial at the without notice hearing befo re Mr Kevin Prosser QC and in its 
various skeleton arguments, with a view to demonstrating that not only was 
Actial relying upon breaches of the 2006 UK Know -How Agreement, but that 
Agreement was indispensable to Actial's case. It is fair to say that his 
submissions in that respect were essentially directed to his alternative case that 
any claim Actial had related to that Agreement and, accordingly, had to be 
brought in Italy under the jurisdiction clause in that Agreement and pursuant 
to Article 23 of the Judgments Regulation, rather than to his case that the 
judge had correctly decided that the English courts did not have jurisdiction by 
virtue of Article 5(3) of the Regulation. Since, for reasons set out below, it is 
not necessary to decide that alternati ve case, it is equally unnecessary to 
determine whose analysis of the nature of the claim in conspiracy is correct. 
For the purposes of this judgment, I proceed on the basis that the claim is one 
in tort, in relation to which the English courts will only h ave jurisdiction if 
Actial can establish that Article 5(3) applies.  
The new evidence  
9. At the hearing before us, Actial sought to rely upon new evidence, set out in 
the thirteenth witness statement of Ms Caroline Mattin, a solicitor with 
Lipman Karas LLP, A ctial's solicitors. This was evidence that the Professor 
was now selling in the United Kingdom a rival product to VSL#3, namely 
Vivomixx, manufactured by Mendes Switzerland which Actial contends is a 
company ultimately controlled by the Professor and sold in the United 
Kingdom by Gastropharm UK Limited. The evidence is that Vivomixx is 
available from any branch of Boots and from various online retailers, 
including Amazon UK. It has recently received approval for reimbursement on 
NHS prescription and it is b eing offered to the NHS at lower prices than 
VSL#3. Ms Mattin says that the Professor is using the know -how which is 
wholly owned by Actial pursuant to the 2006 UK Know -How Agreement to 
produce Vivomixx and sell it in the UK.  
10. Mr Sutcliffe QC did not resis t the application to adduce this fresh evidence, 
provided that the Professor and Mendes Italy had permission to adduce the 
evidence in response from Mr Primal Laxman of FiTZ Solicitors, their 
solicitors. Mr Laxman referred to an application which Actial ma de to the 
court in Switzerland for an injunction against Mendes Switzerland on 2 
December 2014, a week before the present claim was commenced. In those 
proceedings in Switzerland, Actial's Swiss lawyers appeared to accept that its 
only objection was to the  possible infringement by Mendes Switzerland of the 
trademark VSL#3 and stated that if Mendes Switzerland limited itself to 
distributing a probiotic with the Vivomixx mark without using the VSL#3 
trademark, Actial would have no reason for opposing that.  
11. The riposte from Actial in Ms Mattin's fourteenth witness statement is that the 
proceedings in Switzerland concerned only the trademark and that the 2006 
UK Know -How Agreement had no bearing on that dispute. The Swiss lawyers 
were not saying that Actial did  not object to the Professor and Mendes 
Switzerland commercialising a rival product in the United Kingdom using 
know -how that the Professor had transferred to Actial under the 2006 UK 
Know -How Agreement.  
12. In the event, we gave permission for all this new e vidence to be adduced. 
However, it is of peripheral relevance to the central issue on this appeal, which 
is whether the judge was correct in concluding that the English courts have no 
jurisdiction over the present claims under Article 5(3) of the Judgments  
Regulation or Lugano Convention.  
The applicable legal principles  
13. Article 2 of the Judgments Regulation provides:  
"Subject to this Regulation, persons domiciled in a Member State shall, 
whatever their nationality, be sued in the courts of the Member Stat e." 
14. Article 5 provides:  
"A person domiciled in a Member State may, in another Member State, be 
sued:  
1 (a) in matters relating to a contract, in the courts for the place of 
performance of the obligation in question:  
… 
3 In matters relating to tort, delict or quasi -delict, in the courts for the place 
where the harmful event occurred or may occur".  
15. It is now well -established that Article 5(3) is to be given an autonomous 
meaning and not interpreted by reference to nationa l law and that the words: 
"the place where the harmful event occurred"  encompass both the place where 
the event giving rise to the damage occurred and the place where the damage 
occurred. The defendant may be sued at the option of the claimant in the 
court s of either place: see Handelskwekerj GJ Bier NV v SA Mines de Potasse 
d'Alsace  (Case 4320/74) [1978] QB 708  at [24] -[25]; AMT Futur es Ltd v 
Marzillier, Dr Meier & Dr Guntner Rechtsanwaltsgesellschaft mbH  [2014] 
EWHC 1085 (Comm) ; [2015] QB 699  per Popplewell J at [17].  
16. The relevant decisions of the European Court of Justice (now the Court of 
Justice of the European Union but referred to hereafter as "the ECJ") were 
analysed by Christopher Clarke LJ at [17] to [29] of his judgment in AMT 
Futures Ltd v Marzillier, Dr Meier & Dr Guntner Rechtsanwaltsgesellschaft 
mbH  [2014] 
 EWCA
  
Civ
  143; [2015] QB 699 . At [30] to [34] he set out 
the principles which emerge from those authorities:  
"30. Certain key features appear from these authorities. First, the Regulation is 
to be given a community, not a national, construction.  
31. Second, the ECJ h as, for obvious reasons, resolutely set itself against any 
interpretation of the Regulation which would mean that a claimant would, in 
practice, always be able to sue in tort in the courts of its own domicile and 
thus determine the competent court by his c hoice of domicile. In one sense a 
corporation may be said to suffer a loss wherever it keeps its accounts, for that 
is where its loss is ultimately felt. Where claimant and defendant are 
domiciled in two different States, the adoption of such an approach w ould lead 
to a result the exact opposite of that provided for by the basic rule in Article 2 
which is that a defendant is to be sued in the courts of his domicile, not that of 
the claimant.  
32. Third, where harm might be regarded as happening in two diffe rent States 
the search is not for one or more States in which damage has been suffered 
but, if possible, for the State in which "the harm" has occurred, sometimes 
referred to as the jurisdictionally significant harm. As Popplewell J put it at 
[34] (5) (b):   
"The search will be for the element of damage which is closest in causal 
proximity to the harmful event. This is because it is this causal connection 
which justifies attribution of jurisdiction to the courts of the place where 
damage occurs: see the Bier case [1978] QB 708  at [16] -[17] and the Dumez 
France  case [1990] ECR I -49 at [20])."  
33. Fourth, the Article 5 exception is designed to cover cases where there is 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 the proceedings": see the Bier case 
[1978] QB 708 , [11]; the Dumez France  case [1990] ECR I -49, [17]; Shevill v 
Press Alliance SA [1995] 2 AC 18 , [19]; the Marinari  case [1996] QB 217 , 
[10] and Kronhofer v Maier  [2004] All ER (EC) 939 , [15]. That is the reason 
for the exception. It does not mean that the application of Article 5 involves 
any form of forum conveniens test.  
34. Fifth, one of the aims of the Convention is that there should be 
foreseeability and certaint y as to the State where jurisdiction may lie: see the 
Réunion Européene case [2000] QB 690 , [36]; Kronhofer  v Maier, [20]."  
17. At [35] to [37] of his judgment, Christopher Clarke LJ went on to analyse his 
own judgment in Dolphin Maritime & Aviation Services Ltd v Sveriges 
Angfartygs Assurans Forening (The Swedish Club) [2009] EWHC 716  
(Comm); [2009] 2 Lloyd's Rep 123 , on which Mr Wardell QC placed some 
reliance:  
"35. None of these cases concerned a situation in which what was complained 
of was that a tortfeasor had been induced not to do something. Such a situation 
arose in Dolphin Maritime & Aviation Services Ltd v Sveriges Angfartygs 
Assurans Forening (The Swedish Cl ub) [2009] EWHC 716  (Comm); [2009] 1 
CLC 460 . In that case the defendant P & I Club was alleged to have procured 
a breach of Dolphin's agreement with cargo underwriters, for whom Dolphin 
was acting, that any payment by the Club would be made in London. The 
court held that the place wher e the damage occurred or where the event giving 
rise to the damage caused injury was England where Dolphin did not receive 
the money which, if the contract had been performed, it should have received.  
36. In the course of my judgment I said this:  
"56. Ac cordingly there is, as it seems to me, a well arguable case that, under 
the terms and conditions, the underwriters were bound to procure that the 
sums recovered directly from the Club were paid in the first instance to 
Dolphin. ……  
57. In those circumstance s, the arguments on behalf of Dolphin are, in my 
judgment, to be preferred. Dolphin's essential complaint is that it suffered 
harm because it did not receive the $8.5 million into its bank account which it 
should have done because, despite knowledge that t his would involve a breach 
of the underwriters' contract with Dolphin, the Club paid it to their accounts in 
Turkey. I recognise that the matter must be looked at through European 
spectacles. But there is nothing insular in recognising that the contract (w hich 
is governed and must be interpreted by English law) calls in terms for 
'Recoveries and quasi -Recoveries (i.e. sums which would otherwise comprise 
'Recoveries') to be received direct by Dolphin and that the complaint in tort is 
that the Club wrongfully  brought about a breach of that obligation.  
58. When, in those circumstances, I ask myself 'where the damage to the direct 
victim occurred' (see the opinion of Advocate General Darmon in the Dumez 
France  case, [52]) or 'where the event giving rise to the d amage, and entailing 
tortious liability, directly produced its harmful effects upon the person who is 
the immediate victim of that event' (see the judgment in the Dumez France  
case, [20]) or 'where the event giving rise to the damage caused injury' (see th e 
opinion of Advocate General Cosmas in the Réunion Européene case, [48]), 
the answer appears to me that it is in this country, where Dolphin did not 
receive the money which, if the contract had been performed, it should have 
received.  
59. Further, if I as k myself what would have been the position if the tort 
complained of had not taken place, the answer is that payment would have 
been made to Dolphin in England: and the essence of Dolphin's complaint is 
that that did not occur. Mr Thomas submitted that an inquiry as to what would 
have happened if the tort was not committed was no guide to the question - 
where did the damage occur? If there was no tort, there would have been no 
damage. In some cases, e.g. in cases of damage to goods or persons, the 
question may have no great utility. But in others where the claimant has failed 
to obtain some property or money which he would otherwise have received the 
answer to the question may be a guide to identifying where the harm in the 
particular case occurred.  
60. I do  not ignore the danger of conflating the place where the damage 
occurred with the place where the loss was suffered. There is, however, a 
difference between a case in which the claimant complains that he has lost his 
money or goods (as in the Domicrest  case or Sunderland Marine Mutual 
Insurance Co. Ltd v Wiseman (The Seaward Quest) [2007] 2 Lloyd's Rep 308 ) 
and a case in which the c laimant complains that he has not received a sum 
which he should have received. In the former case the harm may be regarded 
as occurring in the place where the goods were lost ( Domicrest ) or the place 
from or to which the moneys were paid ( The Seaward Ques t), although the 
loss may be said to have been suffered in the claimant's domicile. In the latter 
case the harm lies in the non -receipt of the money at the place where it ought 
to have been received, and the damage to him is likely to have occurred in the 
place where he should have received it. That place may well be the place of 
his domicile and, therefore, also the place where he has suffered loss. An 
analogy may be drawn with the non -delivery of cargo at the destination port: 
see the Réunion Européene case.  
61. There is, in my view, nothing inconsistent with the scheme of the 
Regulation in that result. In those circumstances the place where the benefit 
should have been received provides a sufficiently 'close connecting factor with 
the courts of a Member  State other than that in which the defendant is 
domiciled which satisfies the need for certainty and justifies the attribution of 
jurisdiction to those courts for reasons relating to the sound administration of 
justice', particularly where, as here, the c ontract between Dolphin and the Club 
was subject to English law and arbitration, and where Dolphin was a provider 
of services in England (as well as elsewhere).  
62. Accordingly, Dolphin's tortious claims fall, in my judgment, within Article 
5(3) of the Reg ulation. Whilst the argument centred round the claim for 
inducing breach of contract, I did not understand it to be suggested that, if the 
inducement claim fell within that Article the claim in conspiracy might not."  
37. Both parties accept that Dolphin  was correctly decided. The judge 
regarded it as supporting his conclusion. Mr Thomas de la Mare QC for 
AMTF submits that he was entirely right to do so. Mr Hugh Mercer QC for 
MMGR submits that the decision in Dolphin was correct on its facts but that in 
the present case the facts require the opposite conclusion."  
18. The appeal by AMT Futures against the decision of the Court of Appeal in that 
case that the English courts did not have jurisdiction in respect of its claim 
under Article 5(3) was heard by the Suprem e Court in October 2016. 
Judgment is awaited, but we were informed by counsel that, at the end of the 
hearing, the Supreme Court indicated that either the appeal would be 
dismissed or there would be a reference to the ECJ of a question which is not 
relevan t for present purposes. We were also informed by counsel that during 
the hearing there was no challenge to the analysis of the relevant legal 
principles by either Popplewell J at first instance or Christopher Clarke LJ in 
the Court of Appeal.  
The judge's decision on article 5(3)  
19. Having referred to the applicable legal principles as set out in the judgments of 
Popplewell J and Christopher Clarke LJ in the AMT Futures  case, the judge set 
out his conclusions on Article 5(3) at [113] of the judgment:  
"113. On the analysis of the authorities, I have reached the conclusion that 
Actial have failed to satisfy me to the requisite standard that this court has 
jurisdiction in relation to Actial's claims in tort by reason of Article 5(3). I do 
so for the follo wing reasons:  
(1) In cases of economic loss, the search is for the place where the harmful 
event directly had its effect on the immediate victim, Actial, and where the 
original  damage is manifested ( Dumez  at [20] -[21]);  
(2) The damage occurs where direct h armful consequences are suffered, not at 
the place where indirect or remote damage occurs or consequential financial 
loss is felt which has arisen out of the event which has already caused initial 
and actual damage elsewhere ( Marinari  at [14] -[15]).  
(3) On e should, insofar as it is possible, identify, a single place for the 
occurrence of damage, and one which has closest proximity to the harmful 
event ( Bier at [16] -[17]), Dumez  [20];  
(4) I accept Mr Mitchell's submission that here the original damage caused  by 
the alleged conspiracy and wrongful interference with contractual relations is 
the non -delivery either by Mendes Italy or by Danisco on the Professor's 
instructions of the supplies of the Product in bulk to Actial's packing agents, 
namely either SIIT i n Italy or Sanico in the Netherlands, for onward 
distribution to all Actial's distributors in every country in which they supply 
the Product. Posing the question ' What would have happened if the alleged tort 
had not been committed ?', the answer is that SII T and/or Sanico would have 
received the Product in the usual way for onward transmission, once 
packaged, to Actial's distributors at the instruction of Actial;  
(5) The resultant indirect damage is the inability of Actial to supply Ferring 
UK, its English d istributor, but that is one stage removed. The fact that the UK 
is Actial's largest market for the Product it supplies does not, it seems to me, 
answer the question ' Where did the original damage occur ?' 
(6) The fact that the material agreements may have D elaware, Italian or 
Portuguese choice of law clauses is irrelevant to the correct question to be 
answered. Insofar as Mr Mitchell relies on the fact that Italy was the place of 
the alleged unlawful activities, or the choice of the Court of Rome as the 
appropriate venue in the 2006 Know -How Agreement, I do not regard these as 
significant considerations.  
(7) Whilst I accept that Shevill  is authority for the proposition that one can rely 
upon Article 5(3) to bring a claim limited to damage sustained in a parti cular 
jurisdiction, and indeed I was initially attracted to this approach in order to 
accede to Mr Wardell's submission, it seems to me that Shevill  does not in any 
way displace the need to search for the location of the original  damage, as 
opposed to dama ge consequential to the initial damage. Embarking on that 
exercise, I find that the initial damage did not occur in this jurisdiction, but 
when there was a cessation of supplies of the Product in bulk to the packaging 
agents in Italy or the Netherlands."  
Actial's Submissions  
20. On behalf of Actial, Mr Wardell QC submitted that the judge's analysis in 
relation to Article 5(3) was erroneous in a number of related respects. First, 
the judge had misunderstood the distinction between direct and indirect 
damage dra wn by the ECJ in the Dumez  case and had incorrectly interpreted it 
as requiring a purely chronological approach in assessing where the harm was 
felt by the claimant. Second, and following on from his first point, he 
submitted that what the court should hav e been looking for was where the 
jurisdictionally significant harm has occurred, or as Popplewell J put it in the 
AMT Futures case at [34(5)(b)]: "the element of damage which is closest in 
causal proximity to the harmful event" . If the judge had engaged in  that 
exercise, he should and would have concluded that the place where the 
jurisdictionally significant harm had occurred was clearly the United 
Kingdom, since this country represented Actial's largest market, with 38% of 
its total turnover and the princi pal aim of the conspiracy was to prevent Actial 
selling VSL#3 in this jurisdiction via its distributor, Ferring UK.  
21. Third, Mr Wardell QC submitted that the judge's conclusion that the place 
where the damage occurred for the purposes of Article 5(3) was It aly or the 
Netherlands, where there was a cessation of supplies of VSL#3 in bulk to 
Actial's packaging agents, failed to apply the principles laid down in the 
jurisprudence of the ECJ of foreseeability and certainty. The judge's 
conclusion detracted from t hose principles, pursuant to which, so far as 
possible, the court should identify a single place for the occurrence of the 
damage.  
22. Fourth, he submitted that in relation to the question what the position would 
have been if the tort had not been committed, the judge had given the wrong 
answer when he held at [113(4)] that the packaging agents would have 
received the VSL#3 in the usual way for onward transmission. The packaging 
agents were no more than a conduit for the supply to the United Kingdom and 
the co rrect answer to the question was that, if the tort had not been committed, 
Actial would have been able to supply Ferring UK in the United Kingdom, 
hence the place where the damage occurred was the United Kingdom. There 
was no loss to Actial until it was un able to sell the Product here. Mr Wardell 
QC submitted that if the Court asked itself the same questions as Christopher 
Clarke J (as he then was) had posed in his judgment in Dolphin Maritime  at 
[58]-[59], the answers should be that Actial suffered damage by being unable 
to market the Product here and that, but for the tort, Actial would have gone 
on selling the Product here.  
23. Fifth, Mr Wardell QC submitted that the judge failed to apply the principle 
established by Shevill v Press Alliance SA  [1995] 2 AC 18 . That case 
concerned a libel in a newspaper article distributed in several contracting 
states. The ECJ held that the claimant coul d either bring an action for damages 
before the courts of the place where the publisher of the defamatory 
publication was established or before the courts of each of the contracting 
states in which the publication was distributed and where the claimant cla imed 
to have suffered injury to her reputation, the latter in each case being the place 
where the damage occurred: see [24], [27] and [33] of the judgment.  
24. Mr Wardell QC submitted that, by parity of reasoning, if the Professor cut off 
supplies of VSL#3 at  source as he allegedly had done in the present case, 
Actial will suffer damage in each of the markets where it sells the Product so 
that it can sue in the courts of each of those countries. He relied upon the 
passage at [9.67] of Fentiman: International C ommercial Litigation :  
"…where a claimant alleges that a defendant has unlawfully prevented the 
conclusion of a contract between the claimant and a third party, damage 
occurs where the contract would have been concluded."  
25. He submitted that the actions of the Professor and Mendes Italy in cutting off 
supplies at source had damaged Actial's commercial relationship with Ferring 
UK and its reputation here and had exposed it to claims from Ferring UK. This 
was his sixth criticism of the judgment, that the judge  had failed to take into 
account the closing words of Article 5(3): "the place where the harmful event 
occurred or may occur". Those words: "or may occur"  emphasised that the 
search was not just for actual harm but potential harm. The potential harm 
here, to which the judge had failed to have regard, was the possible 
distribution by the Professor in the United Kingdom of a rival product, in 
breach of the 2006 UK Know -How Agreement. It was that potential harm to 
which the injunctive relief which had been sou ght was directed.  
26. Mr Wardell QC submitted that the new evidence about the distribution of 
Vivomixx demonstrated clearly that the potential harm had become actual 
harm, suffered here in the United Kingdom. Where a claimant advances a 
claim in tort arising from breach of a contractual term, the damage occurs 
where the rights conferred by that term were to have been enjoyed: Fentiman 
[9.68]. Here, the distribution of Vivomixx was a breach of the 2006 UK 
Know -How Agreement and the rights conferred by that Agre ement of 
exclusive use of the know -how were ones which were to have been enjoyed 
here, so it was in this jurisdiction that the jurisdictionally significant harm 
occurred. These sales of rival product were causing Actial harm and they did 
not involve the pa ckaging agents at all, a further demonstration that the judge's 
conclusion that the damage occurred at the location of the packaging agents 
was wrong.  
The Submissions of the Professor and Mendes Italy  
27. Mr Andrew Sutcliffe QC on behalf of the Professor and Mendes Italy 
submitted that the judge was entirely correct in his analysis, at [113] of his 
judgment, that the direct damage was suffered by Actial when there was non -
delivery of the Product in bulk to the packaging agents in Italy or the 
Netherlands and that the inability of Actial to supply Ferring UK was indirect 
or remote damage, one step removed. Contrary to Mr Wardell QC's 
submissions, the judge had not adopted a purely chronological approach, but 
had carefully analysed where the harmful  event had occurred, in accordance 
with the European and English authorities.  
28. The non -delivery of VSL#3 to the packaging agents in Italy and the 
Netherlands was the jurisdictionally significant harm in the sense that, had 
delivery been made to the packagi ng agents as requested by Actial, no harm at 
all would have been suffered. Accordingly, the judge had given the right 
answer to the question what would have happened if the tort had not occurred.  
29. The judge had been right to conclude that the fact that the  United Kingdom 
was Actial's largest market for the Product was irrelevant to the question to be 
asked in determining whether Article 5(3) applies. The Product was sold in a 
wide range of markets in the European Community and elsewhere and the 
2006 UK Know -How Agreement was one of fifteen similar contracts entered 
into in relation to each territory where Actial owned a trademark. Actial 
should not be permitted to forum shop by using market share to found 
jurisdiction.  
30. Mr Sutcliffe QC submitted that if supp lies of the Product were cut off as 
alleged by Actial, then the damage occurred in Italy and the Netherlands 
where the Product which would otherwise have reached the packaging agents 
was not received. The fact that, as a consequence of such non -receipt, Ac tial 
could not satisfy the orders of Ferring UK for the UK market and might suffer 
loss as a result, was too remote and could not found jurisdiction in England. 
This was made good by an examination of the injunctive relief Actial had been 
seeking: a mandat ory injunction requiring the Professor to give instructions to 
Danisco to supply bulk VSL#3 to one or other of the packaging agents as 
directed by Actial. Actial's inability to supply Ferring UK was caused by the 
cessation of supplies to the packaging agen ts and, accordingly, was 
consequential or indirect loss.  
31. Mr Sutcliffe QC submitted that the suggestion that the judge's conclusion 
detracted from the principle that the courts should so far as possible identify a 
single place for the occurrence of the dam age was misleading and 
misconceived. There was a single place where the harmful event occurred or 
the damage was suffered, the location of whatever packaging agent Actial 
decided to use to make up the Product.  
32. In relation to the new evidence and the criti cism of the judge for not focusing 
on potential harm, Mr Sutcliffe QC submitted that Actial was seeking to run a 
new case that it had suffered damage as a consequence of sales of Vivomixx in 
the United Kingdom, which was not a case which it had argued befo re the 
judge and was inconsistent with the position it had adopted in the Swiss 
proceedings. To the extent that Actial was complaining about a breach by the 
Professor of the 2006 UK Know -How Agreement, that highlighted that this 
was essentially an Italian contractual claim dressed up as an English unlawful 
means conspiracy. This was a submission that Mr Sutcliffe QC developed 
further in the context of his alternative submission that this case fell within 
Article 5(1) not Article 5(3).  
Analysis and conclusi ons in relation to article 5(3)  
33. In considering whether jurisdiction can be established under Article 5(3) it is 
important to have in mind that it is an exception or derogation from the 
fundamental principle set out in Article 2 that defendants should be su ed in the 
courts of the place of their domicile and, accordingly, it is to be restrictively 
interpreted: see per Popplewell J in AMT Futures at [34(1)] and the decisions 
of the ECJ there cited. It is for that reason that the exercise of the special or 
exceptional jurisdiction under Article 5(3) is only justified if there is a 
particularly close connecting factor between a particular dispute and the courts 
of a member state other than that in which the defendant is domiciled. Hence 
the search is for the stat e where the jurisdictionally significant harm has 
occurred or where damage has occurred which is closest in causal proximity to 
the harmful event: see per Christopher Clarke LJ in AMT Futures  at [31].  
34. In the present case, the harmful event was the alleged  conspiracy by which the 
Professor and Mendes Italy sought to prevent Actial from trading by cutting 
off supplies to it of VSL#3. In my judgment, the damage which is closest in 
casual proximity to that harmful event is the non -delivery of VSL#3 in bulk to 
Actial's packaging agents in Italy and the Netherlands. That is the 
jurisdictionally significant harm. The subsequent damage suffered because, as 
a consequence, Actial was unable to supply its distributors, whether Ferring 
UK in the UK or another distribut or in whatever territories were supplied with 
the Product is just that, consequential or indirect damage. The judge's analysis 
in [113] of his judgment cannot be faulted.  
35. I consider that there is an analogy here with the carriage cases considered by 
Chris topher Clarke J in Dolphin Maritime  at [60] which I set out at [17] 
above. In the Réunion Européene  case, a claim was brought in France against 
the maritime carrier of a consignment of peaches found to be overripe because 
of a breakdown of the vessel's coo ling system on the voyage. The ECJ held 
that the place where the harmful event occurred, for the purpose of a claim in 
tort against the carrier was the place where the carrier was to deliver the 
goods, Rotterdam. The Court said at [36]:  
"That place meets the requirements of foreseeability and certainty imposed by 
the Convention and displays a particularly close connecting factor with the 
dispute in the main proceedings, so that the attribution of jurisdiction to the 
courts for that place is justified by re ason relating to the sound administration 
of justice and the efficacious conduct of proceedings."  
36. Mr Wardell QC accepted during the course of argument that the same 
conclusion, that the place where the harmful event occurred was Rotterdam, 
would have been reached if the goods had been lost en route  or stolen. Indeed, 
that conclusion seems to me necessarily to follow from the analysis in Dolphin 
Maritime  at [60]. Mr Wardell QC submitted that the present case was different 
because the Professor was preventing  the Product from reaching the 
distributors in the United Kingdom, although he accepted that the position 
would be different if the Professor had set out to steal the Product. Then a 
strict analogy would have to be drawn with the Réunion Européene case. I 
cannot see that there is anything in this distinction: whether the Professor had 
stolen the Product or instructed Danisco not to deliver it to the packaging 
agents, the effect would be the same, he would have prevented the relevant 
consignment from being d elivered to the packaging agents. Accordingly, in 
my judgment, the same conclusion should be reached, whether the Product 
was not delivered to the packaging agents because it was stolen or lost or 
because the Professor had instructed Danisco not to deliver  it to the packaging 
agents. In either event, the jurisdictionally significant harm occurs in the place 
where the Product is not delivered, Italy or the Netherlands.  
37. Furthermore, if one asks the question posed at [59] of Dolphin Maritime what 
would the position have been if the alleged torts of unlawful means conspiracy 
and unlawful interference with contractual relations had not been committed, 
it seems to me that the answer is clear. The packaging agents would have 
received the VSL#3 in the u sual way for packaging and onward transmission 
to Actial's various distributors and no loss would have been suffered. Actial's 
case is not assisted by seeking to characterise the packaging agent in each case 
as a mere conduit. If anything, that would point  to the harm occurring at an 
earlier point, in the United States, when the Professor/Mendes Italy and 
Danisco agreed to cut off supply to Actial.  
38. I do not consider that there is any force in Mr Wardell QC's submission that 
the judge's conclusion failed to  apply the principles laid down in the 
jurisprudence of the ECJ of foreseeability and certainty. As Mr Sutcliffe QC 
pointed out, in the case of any given order for VSL#3, there is only one place 
where the harmful event occurred or the damage was suffered, namely the 
location of whatever packaging agent Actial decided to use to make up the 
Product. Accordingly, there is no question of unforeseeability or uncertainty. 
In any event, the principles are not immutable, the search is for a single place 
where the h arm has occurred "if possible": see per Christopher Clarke LJ in 
AMT Futures at [32].  
39. If anything, Actial's reliance on the Shevill case in support of its submission 
that because the Professor cut off supplies of VSL#3 at source, Actial will 
suffer damage s in each of the territories where VSL#3 is marketed and sold by 
Actial and can therefore sue in the courts of each such territory would seem to 
ignore the principles of foreseeability and certainty. In any event, I do not 
consider the analogy with Shevill  an apt one. In the case of an international 
libel through the media, as the ECJ held at [29], the injury caused by the 
defamatory publication occurs in each place where the publication is 
distributed. Not only is there no prior damage or injury until publ ication takes 
place, wherever that is, but the event giving rise to the damage is the 
publication, so the harmful event and the damage occur simultaneously in the 
same location. By contrast, in the present case, direct and immediate damage 
was suffered whe n VSL#3 was not delivered to the packaging agents and the 
damage suffered by reason of Actial's inability to sell to its distributors in the 
UK or in other territories was indirect or consequential damage.  
40. Nor do I consider that Actial can derive any assi stance in relation to whether 
the case is within Article 5(3) from the new evidence that the Professor is 
distributing the rival product, Vivomixx, in the United Kingdom. Even 
assuming that in doing so, he was in breach of the 2006 UK Know -How 
Agreement an d that, as Mr Wardell QC submitted, it was the ultimate aim of 
the conspiracy to cut off supplies of VSL#3 to Actial and distribute a rival 
product, that does not change the nature of the damage suffered by Actial as a 
consequence of the conspiracy and ove rt acts relied upon as summarised at [6] 
and [7] above. Any financial loss suffered by Actial as a consequence of loss 
of sales in the United Kingdom through the distribution and promotion of the 
rival product is, so far as those matters are concerned, at best indirect or 
consequential damage. The answers to the questions posed in [58] of Dolphin 
Maritime  remain Italy or the Netherlands, where the VSL#3 in bulk was not 
delivered to the packaging agents.  
41. For all those reasons, the English courts do not have  jurisdiction over the 
proposed claims under Article 5(3) and the appeal must be dismissed.  
The Article 5(1) point  
42. In his oral submissions before us, Mr Sutcliffe QC developed an alternative 
ground upon which the judge's decision that the English courts d id not have 
jurisdiction was correct, that the judge should have held that Italy was the only 
forum in which the dispute could be determined because the 2006 UK Know -
How Agreement (which contained at clause 3.3, quoted by the judge at [39] of 
his judgment,  a clause providing that the Court of Rome has jurisdiction over 
any dispute as to the validity, interpretation and enforcement of that 
Agreement) was indispensable to the resolution of the matters in dispute. This 
point had been trailed in the court below  but not fully argued. We gave Mr 
Sutcliffe QC permission to amend his Respondent's Notice to raise this point 
and he made oral submissions on the point. He relied in particular on the 
decision of the CJEU in Brogsitter v Fabrication de Montres Normandes  
[2014] QB 753  and the interpretation and application of that case in the recent 
decision of the Court of Appeal in Arcadia Petroleum  v Bosworth  [2016] 
EWCA
  
Civ
  818 and in an earlier decision of Edwards -Stuart J  in Iveco 
SpA v Magna Electronics  [2015] EWHC 2887 (TCC) ; [2016] I.L.Pr 18.  
43. Because this point had not been previously argued, we adjourned the hearing 
after Mr Sutcliffe QC's submissions to give Mr Wardell QC an opportunity to 
consider the point and prepare his response. On the second day of the hearing, 
Mr Wardell QC made detailed submissions in response to this point. Because 
we have decided that the appea l must be dismissed on the ground that the 
judge was correct in his conclusion that the English courts do not have 
jurisdiction over the present dispute under Article 5(3), it is not necessary to 
decide this further point and I decline to do so. In this co ntext, I have in mind 
the salutary observation of Mummery LJ in Housden v The Conservators of 
Wimbledon and Putney Commons  [2008] 
 EWCA
  
Civ 200; [2008] 1 WLR 
1172  at [30]:  
"It is unnecessary to decide the issue for the purpose of disposing of the 
appeal. In general, it is unwise to deliver judgments on points that do not have 
to be decided. There is no point in cluttering up the law reports with obiter 
dicta, which could, in some cases, embarr ass a court having to decide the issue 
later on."  
Conclusion  
44. In the circumstances, I would dismiss the appeal.  
Christopher Clarke LJ  
45. I agree.  
Lewison LJ  
46. I also agree .