Hilary Term  
[
2017]
  
UKSC
  
13 
 
On appeal f rom: [2015] EWCA Civ 143  
  
  
  
JUDGMENT  
  
  
AMT Futures Limited (Appellant) v Marzillier, Dr 
Meier & Dr Guntner Rechtsanwaltsgesellschaft 
mbH
  (Respondent ) 
  
  
before  
  
Lord Neuberger, President  
Lord Mance  
Lord Clarke  
Lord Sumption  
Lord Hodge  
  
  
  
JUDGMENT GIVEN ON  
  
  
1 March 
 2017  
 
  
  
Heard o n 5 and 6 October 2016  
  
  
Appellant  
Thomas de la Mare QC  
Andrew Scott  
(Instructed by Farrer and 
Co LLP)    Respondent  
Hugh Mercer QC  
Pierre Janusz  
(Instructed by Zimmers 
Solicitors)  
  
  
  
LORD HODGE: (with whom Lord Neuberger, Lord Mance, Lord Clarke and Lord 
Sumption agree)  
1.                   This appeal concerns the interpretation of Council Regulation (EC) No 
44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of 
judgments in civi l and commercial matters (“the Judgments Regulation”). The 
question is whether the English courts have jurisdiction to hear the claim by the 
appellant (“AMTF”) against the respondent (“MMGR”) for damages for the tort of 
inducing breach of contract.  
Factual  background  
2.                   AMTF is incorporated in the United Kingdom and is based in London. It 
provides services as a non -advisory, “execution only”, derivatives broker for clients 
who wish to trade in derivatives and who are referred to it by intr oducing brokers. 
Among AMTF’s clients were people who were domiciled in Germany, Austria, 
Switzerland or Belgium (“the former clients”) and who were introduced to AMTF by 
independent brokers based in Germany (“the introducing brokers”). AMTF charged 
its cl ients commission for its service and paid commission to the introducing brokers.  
3.                   About 70 former clients, who were dissatisfied with the financial results of 
their transactions, commenced legal proceedings in Germany against both the 
introducing brokers and AMTF seeking damages under the German law of delict. The 
claim against the introducing brokers was that they had given bad investment advice 
or had failed to warn of the risks of the investments. The claim against AMTF was 
based on a  liability which was accessory to that of the brokers: it was alleged that 
AMTF had encouraged the brokers to behave as they did by paying them commission 
from the transaction accounts which it operated for its clients and that it owed and had 
breached a d uty in delict (tort) to the clients to prevent any transactions being 
undertaken contrary to their interests. AMTF challenged the jurisdiction of the 
German court. But many of the former clients have recovered damages from AMTF 
by way of settlement. AMTF e stimates that by August 2013 it had spent 
£2,191,881.68 on investigating the German claims, legal costs in Germany and 
England and settlement costs.  
4.                   The agreements between AMTF and the former clients varied over time. But 
each containe d clauses which provided (a) that English law would govern the rights 
and obligations of the contracting parties and the construction of their contract and (b) 
that the English courts would have exclusive jurisdiction in legal proceedings relating 
to the c ontract. AMTF asserts that the former clients have breached their contracts 
with it by raising legal proceedings against it in Germany and asserting rights under 
the German law of delict. AMTF has raised legal proceedings against many of the 
former clients  seeking damages for breach of contract in the High Court in London.  
5.                   MMGR is a company incorporated under the laws of Germany and carries 
on business as a firm of lawyers in Germany. AMTF alleges that MMGR induced the 
former clients to  issue proceedings against it in Germany and to advance causes of 
action under German law, in breach of the exclusive jurisdiction and applicable law 
clauses in their contracts with AMTF. It has commenced proceedings in the High 
Court in London against MMG R, based on the English law tort of inducing breach of 
contract, in which it seeks both damages and injunctive relief to restrain MMGR from 
inducing clients to bring further claims in Germany asserting causes of action under 
German law. AMTF argues that th e English courts have jurisdiction over its claim 
under article 5.3 of the Judgments Regulation, which gives jurisdiction in tort claims 
to the courts for the place in which the harmful event occurred or may occur. MMGR 
challenges the jurisdiction of the E nglish courts to entertain this action. To that end 
MMGR applied for a declaration that the English courts did not have jurisdiction over 
it in respect of the subject matter of AMTF’s claim.  
The prior legal proceedings  
6.                   Popplewell J in a judgment dated 11 April 2014 ( [2014] EWHC 1085 
(Comm) ); [2015] QB 699  refused MMGR’s application and held that the English 
courts had jurisdiction. He decided that the relevant harm which gives rise to 
jurisdiction under article 5.3 occurred in England as AMTF had in each case been 
deprived of the benefit of the exclusive jurisdiction clause, which, he held, created a 
positive obligation on a former client to bring proceedings in England. The Court of 
Appeal in a judgment dated 26 February 2015 ( [2015] EWCA Civ 143 ; [2015] QB 
699), in which Christopher Clarke LJ wrote  the leading judgment, concluded that the 
English courts did not have jurisdiction as the relevant harm had occurred in 
Germany. The Court of Appeal were not enthusiastic about the conclusion which they 
felt compelled to reach as it meant the ancillary cla im in tort against MMGR for 
inducing the breach of the contracts could not be made in the court which the contract 
breaker had agreed would have exclusive jurisdiction over the contract. Thus AMTF’s 
claims against its former clients for breach of contract,  which could proceed in 
England under the exclusive jurisdiction clauses of their contracts, would be separated 
from the ancillary claim against MMGR. AMTF appeals to this court against that 
judgment. It submits that the English courts have jurisdiction.  
7.                   In order to address AMTF’s challenge it is appropriate, first, to examine the 
relevant provisions of the Judgments Regulation and the authoritative case law on 
those provisions and, secondly, to consider how that case law applies to the  facts of 
this case. Both AMTF and MMGR submit that the law is clear and is in their favour. 
In the event that this court disagrees with its interpretation, each of AMTF and 
MMGR seeks a reference to the Court of Justice of the European Union (“CJEU”). I 
therefore, thirdly, address the question whether in the light of developments of its 
jurisprudence it is necessary to refer a question of interpretation to the CJEU. In 
discussing the prior case law in this judgment I refer to both that court and its 
predec essor, the Court of Justice of the European Communities, by the acronym 
“CJEU”.  
The Judgments Regulation  
8.                   The basic rule in the Judgments Regulation is that a person may be sued in 
the member state of his domicile. Article 2 provides:  
“1.       Subject to this Regulation, persons domiciled in a member state 
shall, whatever their nationality, be sued in the courts of that member 
state.”  
9.                   As the opening words of article 2.1 suggest, the basic rule of domicile is not 
an exclusive ground of jurisdiction. Other articles within the Regulation provide 
alternative grounds. Thus in article 5 there are rules concerning matters relating to 
contract and delict among others. Article 5 provides, so far as relevant:  
“A person domicil ed 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; …”  
Article 6 provides so far as relevant:  
“A person domiciled in a member 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, provided the claims 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; …”  
In relation to contracts conferring exclusive jurisdiction, article 23 provides:  
“If the parties, one or more of whom is domiciled in a member state, 
have agreed that a court or the courts of a member state are to have 
jurisdiction to settle any disputes whic h have arisen or which may arise 
in connection with a particular legal relationship, that court or those 
courts shall have jurisdiction. Such jurisdiction shall be exclusive 
unless the parties have agreed otherwise. …”  
10.              The CJEU has provide d authoritative rulings on the Judgments Regulation 
and its predecessor, the Brussels Convention. Rulings on the interpretation of 
provisions of that Convention remain valid for the equivalent provisions in the 
Judgments Regulation: Zuid-Chemie BV v Philip po’s Mineralenfabriek NV/SA (Case 
C-189/08) [2010] 2 All ER (Comm) 265, para 18. I discuss the earlier case law as if it 
addressed the latter provisions.  
11.              The Judgments Regulation contains rules of jurisdiction which are designed 
to promote  legal certainty by allowing prospective litigants, whether claimants or 
defendants, to foresee with sufficient certainty which court will have jurisdiction. The 
aim of the Judgments Regulation is to prevent parallel proceedings between courts of 
different  member states and thereby avoid or limit irreconcilable judgments and non -
recognition of judgments. The compulsory system of jurisdiction which the 
Judgments Regulation creates is underpinned by the principle of mutual trust between 
the courts of the memb er states. For those propositions see, for example, Overseas 
Union Insurance Ltd v New Hampshire Insurance Co (Case C -351/89) [1992] QB 
434, para 17; Erich Gasser GmbH v MISAT Srl (Case C -116/02) [2005] QB 1 , paras 
41 and 72; and Turner v Grovit (Case C -159/02) [2005] 1 AC 101 , paras 24 and 28.  
12.              The general principle is that civil actions are to be brought against indiv iduals 
and companies in the courts of the place where they are domiciled. It would be 
contrary to the objectives of the Judgments Regulation to interpret it as requiring the 
recognition of the jurisdiction of the courts of the claimant’s domicile, except w here it 
expressly so provides, as that would enable the claimant to determine the competent 
court by choosing his own domicile: Dumez France SA and Tracoba Sarl v Hessische 
Landesbank (Helaba) (Case C -220/88) [1990] ECR I -49, paras 16 -19; Kronhofer v 
Maier (Case C -168/02) [2004] 2 All ER (Comm) 759 , para 20.  
13.
              The derogations from the general rule which confers jurisdiction on the 
courts of the defendant’s domicile, including article 5.3, must be restrictively 
interpreted in order to achieve the aims of the Judgments Regula tion: Kronhofer v 
Maier  (above), paras 12 -14; Coty Germany GmbH v First Note Perfumes NV (Case C -
360/12) [2014] Bus LR 1294 , paras 43-45. The derogating grounds of jurisdiction are 
justified because they reflect a close connection between the dispute and the courts of 
a member state other than that in which the defendant is domiciled. That close 
connection promotes the efficient admin istration of justice and proper organisation of 
the action: Dumez France SA and Tracoba Sarl v Hessische Landesbank (above), para 
17; Kronhofer v Maier  (above), para 15.  
14.              It is necessary, in my view, to distinguish between the terms of a de rogating 
ground of jurisdiction on the one hand and the rationale or justification for the ground 
on the other as it is the former which confers jurisdiction, not the latter. I discuss this 
point further in para 29 below.  
15.              The CJEU has rule d on the correct approach to article 5.3. It has interpreted 
the phrase “the place where the harmful event occurred” (a) to give the claimant the 
option of commencing proceedings in the courts of the place where the event occurred 
which gave rise to the da mage or in the courts of the place where the damage occurred 
(if the event and damage were in different member states): Handelskwekerj GJ Bier 
BV v Mines de Potasse d’ Alsace SA (Case C -21/76) [1978] QB 708 , para 24; (b) as 
“the place where the event giving rise to the damage, and entailing tortious … 
liability, directly produced its harmful effect upon the person who is the immediate 
victim of the event” and thus not the place where an indirect victim, such as the parent 
company of the immediate victim, suffered financial loss as a result: Dumez France 
and Tracoba Sarl v Hessische Landesbank (Helaba) (above), para 20; and (c) 
consisten tly with (b) above, where a victim suffered harm in one member state and 
consequential financial loss in another, as referring to the place where the initial 
damage occurred: Marinari v Lloyd’s Bank Plc  (Case C -364/93) [1996] QB 217 , 
paras 14 and 15. The focus in (b) and (c) is thus on where the direct and immediate 
damage occurred.  
16.              Similarly, in Kronhofer v Maier  (above) an investor domiciled in Austria 
raised an action in his country against investment consultants based in Germany who 
had given him investment advice by telephone which led him to send funds to 
Germany to be placed in an investment account and used in an unsuccessful 
speculative investment. He argued that, because the financial loss caused by that 
investment diminished the totality of his assets which were concentrated in Austria, 
he could sue in the courts of the country of his domicile. The CJEU di d not agree. It 
held that article 5.3 did not allow a claimant who had suffered financial damage 
resulting from the loss of part of his assets in another contracting state to sue in the 
place of his domicile or where his assets were concentrated.  
17.              The CJEU, in the interests of the sound administration of justice, has had to 
identify the place where a harmful event has occurred in the course of an international 
transaction, where that place was not evident from a straightforward application o f the 
article. In Réunion Européenne SA v Spliethoff’s Bevrachtingskantoor BV (Case C -
51/97) [2000] QB 690 , which concerned a claim in damages arising out of the poor 
quality of a consignment of peaches which had been carried by sea from Australia to 
Rotterdam for delivery to a town in France, the harmful event was a breakdown of the 
cooling system during the sea voyage. The CJEU held (para 35) that the place where 
the harmful event occurred was to be regarded as the place where the maritime carrier 
was to deliver the goods, ie Rotterdam. The Court justified the choice by reference to 
the requirements of foreseeability and legal certain ty and the existence of a 
particularly close connecting factor with the dispute (para 36).  
18.              The CJEU has also had to interpret article 5.3 so that it can apply in 
circumstances in which it is not possible to identify one place where the rel evant harm 
has occurred. For example, it has interpreted the phrase “place where the harmful 
event occurred” in contexts where a claimant suffers harm to his personality rights by 
the publication of libellous material in several member states. It has held that the 
claimant may bring an action for damages against the publisher either (a) before the 
courts of the member state where the publisher of the defamatory material is 
established, which have jurisdiction to award damages for all the harm caused by the 
defamation, or (b) before the courts of each member state in which the publication 
was distributed and where he claims that his reputation has been injured, which have 
jurisdiction only in respect of the harm caused in the state of the court seised: Shevil l v 
Presse Alliance SA (Case C -68/93) [1995] 2 AC 18 , paras 31 -33. 
19.              The publication of material on the internet can make information which is 
damaging to a claimant’s personality right available on a worldwide basis, making it 
impossible to locate the relevant harm for the purpose of article 5.3 without 
developing a special rule. The CJEU has recognised that the solutio n which it adopted 
in Shevill  based on ascertaining damage caused by distribution within a particular 
member state did not address the harm caused by the availability of such information 
on the internet. It has therefore created an additional option for th e alleged victim in 
such circumstances, attributing jurisdiction to the court of the place where the alleged 
victim had its centre of interests: eDate Advertising GmbH v X  (Cases C -509/09 and 
C-161/10) [2012] QB 654 , paras 40 -48, 52.  
20.              The CJEU has also developed special rules for the application of article 5.3 to 
the infringement of intellectual property rights in the context of the accessibility of the 
internet. Wintersteiger AG v Products 4U Sonder -maschinenbau GmbH (Case C -
523/10) [2013] Bus LR  150 is a case concerning a national trademark which in 
principle protects only in the territory of the member state in which it is registered. 
The claimant, which was the proprietor of an Austrian trademark “Wintersteiger”, 
asserted that its trademark had  been infringed by the defendant’s registration of the 
word “Wingersteiger” in the Google search engine although the registration was 
limited to searches carried out via the top level -domain for Germany (ie “google.de”). 
The obvious mischief for the claima nt was that Austrian customers could readily use 
google.de when searching for products causing Wintersteiger to lose orders in 
Austria. The CJEU held that the objectives of foreseeability and the sound 
administration of justice pointed to treating the cour ts of the member state in which 
the property right in issue was protected (ie Austria) as the place where the damage 
occurred (paras 29 and 39) and identifying the place of establishment of the advertiser 
(Germany) as the place where the event giving rise to the damage occurred (paras 37 
and 39).  
21.              The CJEU has also considered the application of article 5.3 where 
reproductions of a work protected by copyright throughout the EU were available for 
sale by marketing on the internet in many membe r states. In circumstances of 
infringement of such a right via the internet to which courts does article 5.3 give 
jurisdiction? In Pinckney v KDG Mediatech AG  (Case C -170/12) [2013] Bus LR 
1313,
  paras 43 -45, the CJEU answered the question by holding that the court of a 
member state  which protected the copyright would have jurisdiction because the 
harmful event alleged might occur within its jurisdiction. But the court’s jurisdiction 
was limited to determining the damage caused within the member state in which it 
was situated.  
22.              Claims for damages against international cartels for breaches of EU 
competition law have also required the development of special rules in the 
interpretation of article 5.3. In Cartel Damage Claims (CDC) Hydrogen Peroxide SA 
v Akzo Nobel NV (Case C-352/
 13)
  [2015] QB 906 , it was not possible to identify a 
single place where the cartel had come into being as it resulted from collusive 
agreements made during several meetings which had taken place in various places in 
Europe. It was also difficult to identify in a conventional way the place where the 
damage occurred as the claimants’ loss consisted in a restriction of the buyers’ 
freedom to  contract as a result of the cartel supplying goods at artificially high prices. 
The CJEU categorised the relevant loss as the additional costs incurred because of the 
artificially high prices. It held that the place where the damage occurred was 
identifia ble only for each alleged victim taken individually and was located, in 
general, at each victim’s registered office (paras 52 and 56). Once again, the CJEU 
adapted the interpretation of article 5.3 to circumstances in which the place of the 
relevant harm c ould not otherwise be identified. The CJEU relied on the justifications 
of the rule - the efficacious conduct of potential proceedings in a court best suited to 
assess the claim for damages - in devising that interpretation (para 53).  
Applying the CJEU’s j urisprudence in this appeal  
23.              There is no dispute in this case that the event occasioning damage, the alleged 
inducement of the former clients by MMGR to commence the German legal 
proceedings, occurred in Germany. AMTF therefore relies on th e alternative basis 
under article 5.3, the place where the relevant damage occurred, in support of its 
assertion that the English courts have jurisdiction. First, adopting the reasoning of 
Popplewell J, it asserts that the relevant harm is the deprivation of the contractual 
benefit of dispute resolution in England under English law so that the English courts 
could protect and enforce its substantive rights. Secondly, it submits that Popplewell 
J’s judgment is supported by (a) the principles underlying artic le 5.3, conferring 
jurisdiction on a foreseeable court which has a close connection with the underlying 
dispute, (b) the nature of the contractual benefit conferred by an exclusive jurisdiction 
clause and (c) considerations of the sound administration of j ustice in relation to a tort 
which is a form of accessory liability for breach of contract. It points out that the 
CJEU has innovated on its interpretation of article 5.3 in cases such as eDate 
Advertising , Wintersteiger and Cartel Damage Claims  by locatin g the relevant harm 
at the claimant’s centre of interests. Such a rule, which would locate the harm in the 
jurisdiction of the contractually adopted court, has, it submits, the virtue of 
foreseeability, as the CJEU pointed out in Wintersteiger  at para 23, and should be 
applied when the tort of inducing breach of contract occurs in the context of an 
exclusive jurisdiction clause.  
24.              I am not persuaded by those submissions. The task for the court is to identify 
where the relevant harm occurred. That is relatively straightforward in most 
circumstances, where there is no need for any special rule such as those which the 
CJEU has developed when it has not been possible readily to identify one place where 
that harm occurred. It is straightforward in this case.  
25.              I deal with AMTF’s first submission. The contractual obligation of the 
former clients was, if they chose to sue AMTF, to sue only in England. The breach of 
contract which MMGR is said to have induced was the raising of legal pro ceedings in 
Germany. AMTF accepts that the raising of those proceedings in Germany was the 
event which gave rise to the damage for the purposes of article 5.3. But AMTF also 
incurred damage in Germany by having to engage in the German proceedings and 
settle claims there.  
26.              It is clear that AMTF did not get the benefit of having any dispute with the 
former clients determined under English law by English courts. But the former clients 
were under no positive obligation to sue AMTF, which could h ave no objection if it 
was not sued. They were under an obligation not to sue in Germany or elsewhere than 
England. The former clients could have performed their contractual obligations to 
AMTF either by not raising proceedings in Germany or, having raised  those 
proceedings, by discontinuing them. Thus the circumstances of this case can be 
distinguished from those in Dolphin Maritime & Aviation Services Ltd v Sveriges 
Angfartygs Assurans Forening  [2010] 1 All ER (Comm) 473, in which the contractual 
obligati on, of which the defendants had induced the breach, was the positive 
obligation to pay money into the claimants’ bank account in England. In that case, the 
harm suffered by the victim of the tort occurred in England where the money should 
have been paid.  
27.              It may also be, as was suggested during the legal debate in court, that the 
raising of the German proceedings has damaged AMTF’s business model as it sought, 
through the exclusive jurisdiction clause, to preserve the focus of its business i n 
London if it traded with overseas clients. But that loss of focus is consequential upon 
the direct harm caused by the raising of the German proceedings. On the clear 
jurisprudence of the CJEU in cases such as Dumez France SA and Tracoba Sarl v 
Hessische Landesbank (above) and Marinari v Lloyd’s Bank plc  (above), article 5.3 is 
not concerned with such consequential loss. In my view, which is essentially the same 
as that of the Court of Appeal, the direct harm which AMTF suffered from the alleged 
tort was t he expenditure occasioned by the German proceedings. Thus for the 
purposes of article 5.3 the place where the harmful event occurred was Germany. That 
is sufficient to determine the appeal.  
28.              It is, nonetheless, appropriate to address AMTF’s  second submission, which 
in substance seeks this court to craft a special rule for the tort of inducing breach of 
contract where the contractual term which has been breached is an exclusive 
jurisdiction clause. In my view the rule which AMTF advocates wou ld be contrary to 
the clear jurisprudence of the CJEU.  
29.              AMTF asserts that the outcome which it favours accords with the principles 
underlying or justifying article 5.3. But there is a clear distinction between a rule of 
special jurisdiction  in the Judgments Regulation, such as article 5.3, and the 
justification for such a rule. The rule of special jurisdiction in a tort case is that harm 
has occurred or may occur within the jurisdiction of the court seised. When, as in this 
case, the court i s not concerned with the event giving rise to the harm, it is the 
occurrence of the direct and immediate harm and nothing else that is the connecting 
factor in article 5.3. It is that connecting factor which creates the benefits of 
foreseeability and promo tes the sound administration of justice. Those benefits, which 
justify the ground of jurisdiction, are not themselves connecting factors. To invoke a 
special ground of jurisdiction a claimant must bring itself within that ground: Folien 
Fischer AG v Ritram a SpA (Case C -
133/11)
  [2013] QB 523 , paras 39 and 40. A 
claimant cannot establish jurisdiction under the Judgments Regulation by merely 
invoking the justifi cation or rationale of the ground.  
30.              Similarly, a focus on the nature of the contractual benefit of which AMTF 
has been deprived and the accessory nature of the tort of inducing breach of contract 
does not assist. I have discussed the former in para 26 above and comment on the 
nature of the tort below. Nor does the inconvenience, which the separation of the 
resolution of the contractual claims against the former clients from the pursuit of the 
claims against MMGR entails, carry much weight when one considers the aims of the 
Judgments Regulation.  
31.              The fact that a claim in tort is connected with a contractual claim has not led 
the CJEU to elide the grounds of jurisdiction in  matters relating to a contract with 
those in matters relating to tort. In Kalfelis v Bankhaus Schröder, Münchmeyer, 
Hengst and Co (Case C -189/87) [1988] ECR 5565  (paras 21 -23) the CJEU held that 
where a claimant pursued a claim based on tort and contract and for unjust 
enrichment, the court which had jurisdiction under article 5.3 to deal with the claim in 
tort did not have jurisdict ion to deal with the other elements of the same claim. More 
recently, in Réunion Européenne SA v Spliethoff’s Bevrachtingskantoor BV (above) 
(paras 49 -51) the CJEU confirmed the principle in Kalfelis . 
32.              In both Kalfelis  and Réunion Européenn e the CJEU has recognised that the 
scheme of the Judgments Regulation creates the difficulty that one jurisdiction may 
not be able to deal with all the related points in a dispute. This inconvenience is the 
price which the scheme in the Judgments Regulatio n imposes by setting out well -
defined rules in order to achieve its primary purpose of ensuring that there shall be no 
clash between the jurisdictions of member states of the EU, as Lord Goff of Chieveley 
observed in Airbus Industrie GIE v Patel [1999] 1 AC 119 , pp 
 131-132. 
 
33.              This difficulty is evident in the wording of the Judgments Regulation. Article 
6 of the Judgments Regulation does not confer jurisdiction on the courts of a member 
state over a co -defendant as a result of the close connection of the claims unless one 
of the defendants is domiciled in that member state. Jurisdiction on an article 5 
ground does not suffice. Similarly, a rticle 23 can confer exclusive jurisdiction on a 
court as a result of the agreement of the parties but that jurisdiction cannot be pleaded 
against people who are not parties to the agreement.  
34.              Under the Judgments Regulation there is no scop e outside the rules for 
identifying a forum conveniens. The German courts, if seised of the matter, can apply 
English law if it is the governing law. The fact that parties to a contract have selected 
a jurisdiction to resolve their dispute does not entitle  the courts of the selected 
member state to review or seek to restrain the jurisdiction of the court on which a rule 
of the Judgment Regulation has conferred jurisdiction: West Tankers Inc v Allianz 
SpA (formerly RAS Riunuine Adriatica di Sicurità SpA) (Case C-185/07) [2009] AC 
1138 , paras 29 -32. 
35.              The application of the Judgments Regulation, as I construe it, will sepa rate 
the determination of AMTF’s contractual claims against its former clients from the 
determination of its tort claim against MMGR. But such inconvenience is the price of 
achieving the legal certainty and foreseeability which are among the principal aims  of 
the Judgments Regulation, as the CJEU has recognised and endorsed. Further, I do not 
see any jurisdictional difficulty for AMTF if it were to seek to protect itself against 
any future attempts by MMGR to induce AMTF’s other clients to breach their 
contractual obligations: AMTF can raise proceedings in Germany, in the courts of 
MMGR’s domicile.  
Whether a reference to the CJEU is mandated?  
36.              Mr De la Mare for AMTF submits as a fall back that if it is not clear that 
article 5.3 should be app lied as he submits where the contractual provision which has 
been breached as a result of the defendant’s inducement is an exclusive jurisdiction 
clause, this court should refer the issue to the CJEU. Guidance would be needed as to 
whether article 5.3 woul d establish the jurisdiction of the English courts where 
MMGR’s alleged tortious behaviour has undermined the contractual creation of a sole 
jurisdiction in England, a connecting factor which has the advantage of foreseeability, 
would promote the sound adm inistration of justice and avoid the fragmentation of 
disputes.  
37.              I do not agree.  
38.              The circumstances which have caused the CJEU to develop special rules to 
interpret article 5.3 in order to identify the place where the harmfu l event occurred, 
such as to locate harm at a claimant’s registered office ( Cartel Damage Claims ) or at 
its centre of interests ( eDate Advertising ) do not arise in this case, in which there is no 
difficulty in locating where the relevant harm has occurred.  The event giving rise to 
harm and the relevant harm which that event directly caused both occurred in 
Germany.  
39.              AMTF also submits that EU legislation has recently shown more favour 
towards exclusive jurisdiction clauses. Article 31(2) of t he recast Judgments 
Regulation (Regulation EU No 1215/2012 of the European Parliament and of the 
Council of 12 December 2012) provides that where a court, on which the parties have 
conferred exclusive jurisdiction by an agreement which complies with articl e 25, is 
seised, any court of another member state must stay its proceedings until the former 
court declares that it has no jurisdiction. AMTF submits that this may mean that the 
CJEU would take a more accommodating approach to exclusive jurisdiction claus es. 
Be that as it may, it does not assist AMTF to establish for the purpose of jurisdiction 
under article 5.3 that the place where the harmful event occurred was England.  
40.              Recent case law of the CJEU does not suggest that the court has move d from 
the principles and approach which I have set out in paras 11 to 
 13,
 15 and 16 
above. The CJEU has repeatedly stated in recent times that the provisions of the 
Regulation must be interpreted independently by reference to its scheme and purpose, 
and derogations from the gene ral rule that jurisdiction is given to the court of the 
defendant’s domicile have to be interpreted restrictively: Melzer v MF Global UK Ltd 
(Case C -228/11) [2013] QB 1112 , paras 22 and 24; Coty Germany (above) , paras 43 -
45; and Kolassa v Barclays Bank Plc (Case C -375/
 13) [2015] ILPr 14 , para 43.  
41.              The focus in article 5.3, which is relevant to AMTF’s claim, remains on the 
place where the event resulted in the initial damage: Zuid-Chemie BV v Philippo’s 
Mineralenfabriek NV/SA (above), paras 26 -32; Universal M usic International 
Holding BV v Schilling, Schwarz, Brož (Case C -12/15) ( EU:C:2016:449 ), paras 30 -34. 
There is no complexity in the present case in identifying  that place which might cause 
the CJEU to develop a special rule as to the location of the harmful event.  
42.              In support of an innovative interpretation of article 5.3, AMTF relies on the 
characteristics of the English law tort of inducing bre ach of contract and the 
application of the tort to an exclusive jurisdiction clause. Creating a special rule in 
this way to accommodate the domestic law of tort of a particular member state would, 
in my view, undermine the certainty and foreseeability of t hat ground of jurisdiction, 
which is available to people and organisations in all of the member states of the EU.  
43.              These considerations, which depend on EU law and not domestic law and are 
thus equally obvious to the courts of other member states, persuade me that the matter 
is acte clair and that no reference is mandated, having regard to the criteria laid down 
in CILFIT v Ministero della Sanità (Case C -283/81) [1982] ECR 3415 . 
Whether consideration of AMTF’s claim by the English court would infringe EU law  
44.              As I have concluded that the Judgments Regulation does not give jurisdiction 
to the English cour ts over AMTF’s claim, it is not necessary to address the issue, 
which MMGR raised, as to whether the English court which purports to hear AMTF’s 
claim thereby breaches EU law by impermissibly interfering with the judgments of 
the German courts.  
MMGR’s cros s appeal on costs  
45.              MMGR appeals against the decision of the Court of Appeal to award it only 
part of its costs at first instance and on appeal (the part relating to the issue whether 
the place of the harmful event was in England) and to req uire it to pay AMTF’s costs 
at first instance and on appeal on the question of whether AMTF’s claim had real 
prospects of success.  
46.              At first instance, MMGR had challenged the prospects of success of AMTF’s 
claim on the basis that the exclus ive jurisdiction clause was unenforceable because the 
former clients were consumers who were protected by the Unfair Terms in Consumer 
Contracts Regulations 1999 and articles 16, 17 and 23(5) of the Judgments 
Regulation. Popplewell J rejected this submissi on. In the Court of Appeal the 
argument took the form that the English courts could not grant an injunction or award 
damages against MMGR without impermissibly attacking the assumption of 
jurisdiction by the German courts. The Court of Appeal did not requi re to determine 
this question but observed that it did not appear to be well founded (a) because an 
injunction against MMGR from inducing a breach of contract did not preclude anyone 
from commencing proceedings in Germany and (b) because a claim for damage s 
against MMGR for the loss occasioned by the breach of contract which MMGR had 
induced was not a collateral attack on the jurisdiction of the German courts.  
47.              I deal with this challenge to the award of costs briefly. The court has a broad 
discretion in relation to costs under CPR rule 44.2. While there is a starting point that 
the unsuccessful party will pay the costs of the successful party (CPR rule 44.2(2)(a)), 
the court is entitled in CPR rule 44.2(4) to have regard to the parties’ relat ive success 
on the issues raised. The court has a discretion on the question of relative success and 
an appellate court will overturn its decision on such a matter only if it has gone 
beyond the limits of its discretion or otherwise erred in law.  
48.              MMGR did not renew in the Court of Appeal its challenge based on the 
alleged status of the former clients as consumers. The Court of Appeal expressed a 
clear although not conclusive view on the challenge on the merits which MMGR 
advanced before the m. 
49.              I see no basis for impugning the discretionary decision of the Court of 
Appeal. Insofar as the challenged element of the award covered MMGR’s submission 
on the merits before Popplewell J, an argument with which MMGR has not persisted, 
the Court of Appeal’s award should stand. Insofar as MMGR, in raising the second 
issue in this court, has renewed the arguments it advanced on the merits before the 
Court of Appeal, it can raise the question of costs in relation to those arguments in 
any su bmissions on costs which it chooses to make to this court after the court’s 
judgment is handed down.  
Conclusion  
50.              I would dismiss the appeal .