B. v. U. Sports GmbH, M. T. GmbH
(Record No.2003 4850P)
Before the Irish High Court
HC (Irl)
(Mr Justice Herbert)
March 8, 2005
JUDGMENT
MR. JUSTICE HERBERT
1 The plenary summons in this case was issued on April 15, 2003.
2 In it the plaintiff claims damages for personal injuries, loss, and damage
sustained and suffered by him as a result of the negligence and breach
of duty, including breach of statutory duty, of the first named defendant
whose registered offices are in Furth, in the Federal Republic of Germany
and the second named defendant whose registered place of business is
Ansbach in the Federal Republic of Germany.
3 The certificate as to jurisdiction indorsed on the plenary summons is in
the following terms:
"The Court has power under Council Regulation (EC) No. 44/2001 of the
22nd day of December, 2000 to hear and determine the Plaintiff's claim
against the Defendants and the Court should assume Jurisdiction to hear
and determine the said claims under the provisions of Articles 5(1) and
(3) of Council Regulation (EC) No. 44/2001."
4 Conditional appearances were entered on behalf of both named
defendants so that the provisions of Art.24 of Regulation 44/2001 do not
apply in this case.
5 The statement of claim was delivered by the plaintiff on July 15, 2004.
At para.4 of this statement of claim is it pleaded as follows:
"In the month of August, 1999, the Plaintiff purchased a motorcycle
helmet, with a visor fitted thereto, from the second named Defendant and
the said helmet and visor was manufactured by the first named Defendant
herein."
6 The nature of the plaintiff's claim as appears from the statement of
claim is that on May 5, 2000, while riding his motorcycle on the public
roadway at Rosegreen, Cashel, in the County of Tipperary in this Member
State of the European Community, his motorcycle skidded because of
the alleged presence of gravel or other extraneous material on the road
surface and struck a roadside bank or fence. The visor of the motorcycle
helmet broke, and caused or permitted the plaintiff to suffer severe
injuries to his upper lip, his nose and, the inside of his mouth.
7 The plaintiff's claim is framed solely in tort against both defendants,
at common law and, additionally as against the first named defendant
only, pursuant to the provisions of ss.2 and 5 of the Liability for Defective
Products Act, 1991.
8 By a motion on notice dated December 13, 2004, which came on
for hearing before this court on February 28, 2005, the second named
defendant now seeks a declaration that in the circumstances of the case
this court has no jurisdiction over the subject matter of the proceedings
as against the second named defendant.
9 By a letter dated February 21, 2005, the solicitors for the plaintiff
notified the solicitors for the second named defendant that at the hearing
of the motion above mentioned, the plaintiff would apply to the court to
amend the claim indorsed on the plenary summons so as to delete from
the certificate as to jurisdiction the reference to Art.5(1) of Regulation
44/2001. At the hearing, counsel for the plaintiff confirmed and admitted
that the plaintiff's claim against both defendants in these proceedings lay
solely in tort.
10 Counsel for the second named defendant relied upon the decision
of the European Court of Justice in the case of Athanasios Kalfelis v
Bankhaus Schroder, Munchmeyer, Hengst and Co. and Others, where the
Court in considering Art.5(3) of the Brussels Convention on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters signed
September 27, 1968, held as follows at p.5585:
"... the concept of matters relating to tort, delict or quasi-delict must be
regarded as an autonomous concept which is to be interpreted by the
application of the Convention, principally by reference to the scheme and
objects of the Convention in order to ensure that the latter is given full
effect.
In order to ensure uniformity in all Member States it must be recognised
that the concept of 'matters relating to tort, delict or quasi-delict', covers
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)."
11 Counsel for the second named defendant submitted to this court that
it necessarily and inevitably followed from the pleading at para.4 of the
plaintiff's statement of claim that this was, so far as the second named
defendant was concerned, a matter relating to a contract. Therefore, he
said, despite the claim being pleaded solely in tort against the second
named defendant, jurisdiction was governed exclusively by Art.5(1) of
Regulation 44/2001.
12 The argument of counsel for the plaintiff proceeded on the following
lines:
"The several bases of special jurisdiction in Article 5 of Regulation
No. 44/2001 are entirely distinct and separate. The Plaintiff had a
Constitutional and legal right to found his claim against both Defendants
in Tort and the Court was not empowered to go behind that pleading.
Having advanced his claim solely in Tort the Plaintiff was entitled to rely
on the provisions of Article 5(3) to found jurisdiction. He could not be
deprived of this right merely because there was a contract somewhere
in the background of the case. Article 5(1) should not be construed in
this manner, particularly where this might result in the Plaintiff being out
of time to sue the second named Defendant in the Federal Republic of
Germany. The claims against the Defendants if heard in the Courts of
different Member States as a result of the application of Article 5(1)(a)
would be,’related actions' as defined by Article 28(3) with the consequent
risk of irreconcilable judgments against the first named Defendant and
accordingly Article 5(3) must be given a construction to avoid such a
result."
13 Counsel for the plaintiff sought to distinguish the judgment of
the European Court of Justice in Kalfelis v Schroder (above cited) on
the ground that it was an action in which the plaintiff claimed relief
in the same action in, contract, tort and unjust enrichment and he
submitted that the only issue determined by the court was that in those
circumstances a court which has jurisdiction under Art.5(3) over an action
insofar as it is based on tort or delict does not have jurisdiction over that
action so far as it is not so based.
14 The plaintiff is domiciled in this Member State and it is admitted
that both the named defendants are domiciled in another Member
State, in this case, the Federal Republic of Germany. In my judgment,
on an autonomous definition the proceedings in the present case are
clearly a, "civil and commercial matter" as defined in LTU v Eurocontrol,
which I am satisfied applies with equal force to the Regulation as it
did to the Convention, and whether one construed the requirement as
being cumulative or alternative. Therefore, by Art.1 thereof the issue of
jurisdiction in the court falls to be determined by reference to Regulation
44/2001, which by Art.76 thereof came into force on March 1, 2002 and
by Art.60(1) applies to these proceedings which were initiated after that
date.
15 Articles 2, 5(1) and 5(3) of the 1968 Brussels Convention are in the
same terms at Arts 2, 5(1) and 5(3) of Regulation 44/2001 and I find
nothing in the text of the Regulation considered as a whole which would
prevent the decision of the European Court of Justice in of Kalfelis v
Schroder, (above cited), from applying to these articles of the Regulation.
16 Applying the decision in Kalfelis v Schroder, (above cited), the
dominant rule for ascertaining jurisdiction under the Regulation is to be
found in Art.2 which provides as follows:
"Subject to this Regulation, persons domiciled in a Member State shall,
whatever their nationality be sued in the Courts of that Member State."
17 In the decision in Kalfelis v Schroder, (above cited) the European Court
of Justice held that:
"... the Special Jurisdictions enumerated in Articles 5 and 6 of the
Convention constitute derogations from the principle that jurisdiction is
vested in the Courts of the State where the Defendant is domiciled and as
such must be interpreted restrictively..."
18 Article 60 of the Regulation provides that for the purposes of the
Regulation a company or other legal person or association of natural or
legal persons is domiciled at the place where it has its, (a) statutory seat,
or (b) central administration, or (c) principal place of business. It was
admitted before me, as I have already indicated, that both defendants in
the instant case are domiciled in the Federal Republic of Germany.
19 Article 3 of Regulation 44/2001 provides that persons domiciled in a
Member State may be sued in the courts of another Member State only
by virtue of the rules set out in ss.2 to 7 of the Regulation. Section 2 of
Art.5(1)(a) provides that a person domiciled in a Member State may,
in another Member State, be sued in matters relating to a contract in
the courts for the place of performance of the obligation in question.
Article 5(1)(b) provides that for the purpose of this provision and unless
otherwise agreed, the place of performance of the obligation in question
shall be:
-- in the case of the sale of goods, the place in a Member State where
under the contract, the goods were delivered or should have been
delivered.
20 Article 5(3) of the Regulation provides that a person domiciled in a
Member State may, in another Member State be sued in matters relating
to tort, delict or quasi-delict, in the courts for the place where the harmful
event occurred or may occur.
21 Following the decision in Kalfelis v Schroder (above cited), the phrase,
"matters relating to a contract," in Art.5(1)(a) and the phrase, "matters
relating to tort, delict or quasi-delict," in Art.5(3) must be given an
autonomous or independent European Community meaning and not
interpreted simply by reference to the national law of the Member State
one or other of the parties. As explained by the European Court of Justice
this is in order to ensure uniformity in all Member States and in Kalfelis
v Schroder, (above cited) the court held that the Convention must be
interpreted, "principally by reference to the scheme and objectives of
the Convention in order to ensure that the latter is given its full effect."
I am satisfied that this principle of interpretation must apply equally to
Regulation 44/2001.
22 The relationship between contract and tort in this Member State
and in the United Kingdom was very uncertain until the decision of the
House of Lords in the case of Hedley Byrne and Company Limited v
Heller and Partners Limited, and of the Supreme Court in this State in the
case of Finlay v Murtagh, established that the existence of a contractual
relationship between the parties was no barrier to a claim based on the
tort of negligence. In Member States of the European Community where
the principle of mutual exclusivity is applied, no action in tort is possible
between parties to a contract. In order to avoid these sort of problems
flowing from the application of national laws, courts must consider issues
of jurisdiction solely by reference to the Regulation, giving full effect to its
scheme and objectives.
32 In my judgment there is nothing in the terms of the Regulation as
interpreted, which would enable this court to determine jurisdiction by
reference to a possible detriment to the plaintiff if, and there was no
proof of this, due to time limit rules he would be unable to recommence
proceedings against the second named efendant in the Federal Republic of
Germany.
33 Counsel for the plaintiff referred to Art.28 of Regulation 44/2001 which
provides as follows:
"1. Where related actions [ which are defined in subpara. 3] are pending
in the courts of different Member States any court other than the court
first seised may stay its proceedings."
34 Article 22 of the Brussels Convention, 1968 had previously provided as
follows:--
"1. 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."
35 In its judgment in the case of Reunion Europeenne, (above cited), the
European Court of Justice held that Art.22 of the Brussels Convention,
1968 only applied when separate actions had been brought before the
courts of different contracting states and did not afford jurisdiction to a
court of a contracting state to try an action which is related to another
action of which that court is seised under the rules of the Convention.
36 In my judgment that decision of the European Court of Justice applies
with equal effect to the provisions of Art.28 of Regulation 44/2001. To
borrow the words of Advocate General Comos in that case, (as translated
from the original Greek), "the fact is that separate actions were not
brought before the courts of different Member States. As a result, and
in any event, the conditions for the application of Article 22 were not
satisfied."
37 It is the conclusion therefore of this courtthat it does not have
jurisdiction to determine the plaintiff's claim against the second named
defendant and, accordingly, the motion of the second named defendant
must succeed.