S. TOMLINSON Q.C.:
[1] On 6 November 1998 the plaintiff leased a Boeing 767 aircraft to the
defendants, Air G. The lease is subject to English law. The leased property
was defined as the airframe, the two engines, the aircraft, the data and
ancillary equipment. The leased property was inspected by Air G and its
agent, Air F., in Perpignan on 20 November 1998 and, pursuant to that
inspection, on 20 November 1998 the plaintiffs allege that they delivered
the aircraft to Air G.
[2] It is right to say that on that day, that is to say 20 November, the
representative of Air G, a Mr R, the technical director, signed a delivery
receipt which recited amongst other things:
2. Lessee hereby acknowledges delivery under the lease of the following
leased property, which as of this date consists of the following:
(a) one Boeing 767-266ER airframe bearing manufacturer's serial number
23178 and registration number N767ER;
(b) [two] Pratt & Whitney... engines...
(c) the records, log books, manuals and other data relating to such
airframe and engines.
There was also signed, although the document appears to be undated,
a document described as a "Lease Commencement" which effectively
provides that the provisions of the lease take effect as a result of the
execution of the delivery receipt.
[3] The aircraft was then flown by or on behalf of Air G to Charles de
Gaulle Airport in Paris. The data, which is specifically listed in exhibit A3
to the lease, and which included, amongst other things the records, log
books and manuals referred to in the delivery receipt and which were
together contained within 23 boxes of documents, were sent by courier to
Charles de Gaulle airport. Apparently, they were flown in the first instance
to Orly airport and then should have been taken by road to the airport
at Charles de Gaulle. Unfortunately, en route the lorry was hijacked at
gun point and the data has never been recovered. It would seem that
this may have been, although obviously the court can make no finding,
a somewhat random attack in that apparently the data has no value to
anyone other than the operator of the aircraft. On the other hand, the
aircraft is itself of considerably less value, at any rate potentially, without
the data because the aircraft cannot properly be operated without the
data or in the absence of the data being reconstituted from other sources
because the data contains such important matters as the number of hours
flown, the number of cycles undertaken, and generally all those sorts of
matters which are of critical importance to the maintenance of an aircraft.
[4] On 3 December 1998 Air G's lawyer in France, Madame D., served
a formal notice claiming termination of the lease and return of the
deposit and redelivery of the aircraft. She recited in a letter of that date,
addressed to the plaintiffs, that the accident that took place was an
external element to Air G and is comparable to a case of force majeure,
and it was in those circumstances that she notified the plaintiffs of
termination of the lease agreement. The plaintiffs for their part did not
accept that the lease could in such circumstances validly be terminated.
[5] On 4 December 1998 the plaintiffs issued and served within this
jurisdiction on Air G a writ claiming certain relief. Before I come to the
relief claimed in the writ, I should just say that the plaintiffs were able
to effect service of the writ upon Air G within the jurisdiction, that is to
say within the jurisdiction of this Court, because section 25 of the lease
provides as follows:
(A) Governing Law. This lease shall in all respects be governed by and
construed in accordance with English law.
(B) The parties hereto have agreed that English law shall be the
governing law for the purpose of this lease to accord with the directions of
lessor's beneficiary and lessor's lender.
(C) Submission to Jurisdiction. For the purposes of any legal proceedings
which the lessor may take in or before the Courts of England the lessee
HEREBY SUBMITS to the non-exclusive jurisdiction of the English Courts
PROVIDED ALWAYS that lessor may at its option sue the lessee in any
other courts having jurisdiction in the premises nor shall the taking of
any action or proceedings against the lessee in one or more jurisdictions
preclude the taking of any action or proceedings in any other jurisdiction
whether concurrently or not.
There are two other subsections of section 25 which are relevant to other
issues raised on the hearing today. That is to say subsection (iii) and
subsection (iv), and section 25(E) is also of some relevance but I do not
take time to set them out in extenso now.
[6] The writ that was issued on 4 December was served, as I have said,
on Air G within the jurisdiction on the same day pursuant to certain
provisions which also provided for the person upon whom proper service
should be effected (and which again I need not read out since there is no
dispute about them). The writ claimed relief as follows:
A declaration that the Aircraft Lease Agreement continues in full force and
effect following the theft at gunpoint on 23 November 1998 of the data...
Then the writ actually says "at the Gare Du Nord, Paris" but that I think is
a mistake, and that the theft actually took place at some place near Paris
which has a name which phonetically sounds the same as the Gare du
Nord, or very similar. Secondly:
A declaration that the purported formal notice of termination of the
lease... dated 3 December 1998 and given on behalf of the defendant is
of no legal effect under and in accordance with the terms of the Aircraft
Lease Agreement and that no event of force majeure... had occurred at
the date of the purported notice of termination.
Then various other declarations relating to a potential failure to obtain
insurance cover or a potential inability to replace the data which, again, I
need not go into for present purposes.
[7] Points of claim were served on 7 December 1998. Extensive points
of defence and counterclaim were served on 1 February 1999. The 16
February 1999 points of reply and defence to counterclaim were served.
Thus the pleadings are now closed.
[8] On 16 February 1998 the plaintiff issued an Ord. 14/Ord. 14A
summons seeking summary determination of the main issue in the
proceedings, that is to say whether the lease continues in full force
and effect. The plaintiff has served affidavit evidence in support of that
summons which deposes to a belief that there is no defence to the
claim for declarations sought in the summons. That Ord. 14 or Ord. 14A
summons is not before the court today.
[9] Meanwhile, on 21 December 1998 matters took an unexpected
turn because on that day Air G issued proceedings in France before the
Commercial Court in Bobigny against a number of parties, including
the plaintiff and L., for whom the plaintiff acts as owner/trustee. Those
proceedings were begun by an Assignation which the court understands to
be something in the nature of a summons to summary proceedings or, at
any rate, that is the manner in which the document has been translated
from the French. The nature of these proceedings is, at any rate to an
untutored English lawyer, somewhat perplexing.
[10] The document beginning the proceedings recites that it is brought
at the instance of Air G and joins as party or impleads as party a number
of parties, including, first, the plaintiffs and L., various insurers who
may have had some role to play in the insurance of the aircraft and its
various appurtenances, certain underwriting consultants in Gabon, Air
F. Maintenance, who were to maintain the aircraft, T., who were almost
certainly involved in the carriage of the data, as also were E., and various
other parties whose precise involvement in the story is for present
purposes not entirely clear.
[11] The Assignation recites that Air G took valid delivery of the aircraft at
Perpignan on 20 November 1998 as per the terms of the lease and recites
also that all the documents and accessory acts to the contract permitting
delivery of the aircraft were signed by the parties with the exception of
strict documentation pertaining to the aircraft listed by hand by an Air F.
representative and signed only by the representative of L.. The document
goes on to recite the theft at a place called Garonor. It recites the fact
that a criminal investigation is under way and that the truck transporting
the goods has been recovered but empty. It recites also, with respect to
the plaintiffs and L.:
Whereas the owners of the aircraft received notice due to the impossibility
of executing the terms of the lease and its automatic cancellation,
requesting the owner's repossession of the aircraft and the refunding of
the deposit;
Whereas this formal notice remained without effect;
On the face of it, although I would agree with Mr Flint, who appears for
the defendant, that it is not entirely clear, that appears to be a suggestion
by Air G that the notice served on their behalf by Madame D. iving notice
of termination of the lease had remained without effect, which I would
understand to mean had not taken effect in the sense that it was not
efficacious to terminate the lease. That is, on the face of it, somewhat
surprising because it appears to be at odds with the case which is being
advanced by Air G in the English proceedings which is to the effect that
the lease did not take effect at all, and I have in mind particularly paras
10, 11, 13, 14 and 15 of the points of defence, all of which aver that quite
apart from any question of the lease having been terminated, the lease
had in fact never taken effect at all because the plaintiffs had failed to
deliver and/or to tender delivery of the data with the effect that a proper
delivery of the aircraft had not been effected in accordance with the
requirements imposed by section 5(A) of the lease.
[12] The Assignation continues to deal with various matters and to
suggest that the consequences of the theft of the data so far as concerns
Air G are serious, as indeed they obviously are, and then continues that:
... it is fitting, for protective purposes, to have any expert or board of
international experts specialized in aeronautics selected by the Court,
whose mission shall be:
-to obtain discovery of any documents or exhibits it deems useful for
performing its mission;
-to examine all the documents concerning the Boeing 767 aircraft, all
insurance, reinsurance, and co-insurance documents and exhibits;
-to examine all the documents necessary for retracing the aircraft's past;
-all international conventions;
-all FAA documentation and regulations;
-all documents directly or indirectly useful for determining:
-the circumstances and complete causes of the theft committed;
-a quantification of all damages caused to the claimant, as well as to the
owner of the aircraft;
-to give an opinion on the liability incurred;
-to give an opinion on the feasibility of retracing the documentation;
-to give an opinion on the consequences of the theft, the declaration of
the partial loss or total loss of the aircraft;
-to give an opinion on the possibilities of exploiting (by which I think is
meant operating) the aircraft;
-to give an opinion on the re-registration of the aircraft in N (by which is
meant registration of the aircraft in the United States of America);
-and generally speaking to provide any information apt to permit a
complete appreciation of the litigation.
[13] The document goes on to ask that the expert or experts shall be
appointed and perform their mission in accordance with the provisions
of article 262 of the Code of Civil Procedure and file their report with the
Clerk of the Court.
[14] There are further provisions which suggest that Air G would seek an
order directing that the costs of the experts' exercise should be borne by
the various parties joined, including of course the plaintiffs and L..
[15] Article 262 of the Code of Civil Procedure is not before the court.
Article 265 of the Code of Civil Procedure is before the court, and it is
suggested by Madame D. that these proceedings in France should be
regarded as having been instituted pursuant to the procedure set out
under article 265 of the Code of Civil Procedure, which apparently deals
with proceedings which may be ancillary to other proceedings. Miss
Boswell points out that, so far as concerns the plaintiffs and L., there are
no other proceedings in France against or involving them to which these
proceedings could be ancillary. There are other proceedings involving the
insurers and criminal proceedings concerning the theft, but the plaintiffs
and L. are not party to such proceedings.
[16] There is also before the court article 145 of the same Code which
provides, in translation:
"If there is a legitimate reason to protect or establish, prior to any
proceedings on the merits, proof of facts upon which the result of the
proceedings depend, legally admissible investigative measures may be
ordered upon the request of all interested parties, either ex parte or by
summary procedure."
In relation to that latter provision it is the evidence of a Mr. G, if I
pronounce his name correctly, a French advocate practising with Messrs
F. in Paris, that article 145 may only be used where the case has not been
brought before a competent court on the merits. Accordingly, so says Mr.
G, article 145 would not be available as a juridical basis for the bringing of
the proceedings before the court in Bobigny because proceedings on the
merits had, by 21 December, already been brought not in that court but in
this court in England.
[17] It is wholly unnecessary and undesirable that this court should
attempt to express any view whatsoever as to the basis upon which the
proceedings in France have been instituted. This court cannot of course
in any event resolve at this interlocutory level any difference of opinion
which there may be between the French lawyers who have provided
evidence for the assistance of the court. But, in any event, for reasons
which will appear hereafter, subject only perhaps to some consideration
of how in the exercise of my discretion I should give directions as to the
future conduct of this action, it seems to me that the precise nature of the
French proceedings is completely irrelevant.
[18] An application is now brought before this court which seeks relief
under three heads. The part of the application which has taken the
most time is that part pursuant to which the plaintiff seeks an injunction
to restrain the defendants from proceeding against the plaintiffs and
against L. in proceedings before the Commercial Court of Bobigny, France,
commenced by summons against them on 21 December 1998. That is of
course the summons or the Assignation to which I have just referred.
[19] Miss Boswell for the plaintiffs says that the English court should
in protection of the English jurisdiction enjoin the defendants from
proceeding as they have. She puts her case in a number of ways. In the
first instance she says that the French proceedings apparently do not
have any cause or object, at any rate so far as concerns the plaintiffs,
because no lis is identified as pending between the plaintiffs and the
defendants, and the plaintiffs appear simply to be impleaded in those
proceedings for the purpose of contributing to the costs. Alternatively, she
says that it is possible that as that action in France develops it may in fact
generate decisions of the court on the issues which arise as between the
plaintiffs and the defendants arising out of the lease agreement, and that
if that were to take place that would give rise to the risk of potentially
irreconcilable judgments, bearing in mind that the English court is seised
of those issues.
[20] Miss Boswell also says that if, as Mr Flint contends, the proceedings
in France should be regarded as simply in the nature of a discovery
action, to bring an action of that sort in France amounts to an abuse of
process by the defendants of the process of this court rather than an
abuse of French process, on the basis that the defendants have no right
to seek discovery in France when there is an action on foot which will
determine the merits as between the parties in England. Miss Boswell
really encapsulates her submissions by saying that the plaintiffs, having
perfectly properly and pursuant to the provisions in the lease brought
these proceedings in England, which were started on 4 December, which
was prior to the proceedings being brought in France, they should in such
circumstances have the benefit of proceeding here without distraction and
without being put to the expense which may be involved in the French
proceedings.
[21] I have to say that I regard this application for injunctive relief as
misconceived. It seems to me that whilst the position of the plaintiffs is
one with which one can sympathise in that they have started proceedings
pursuant to a permissive dispute resolution clause, and now find that
proceedings which might be regarded as in some way related to those
proceedings are brought in France, nonetheless that is something which
happens day in, day out, and which does not give rise to the court
granting injunctive relief so as to prevent a party bringing proceedings
before the courts of a foreign jurisdiction. Miss Boswell is, I think, faced
with various dilemmas. If the proceedings in France do have as their
cause or as their object the obtaining of relief which is essentially the
same as the relief claimed by the plaintiffs in England or, I suppose, the
other side of the coin of that relief, then potentially the regime in Articles
21 and 22 of the Brussels Convention is of some relevance.
[22] It is, to my mind, quite axiomatic that the whole shape of the
Convention is that, as between Convention Courts, the courts of one
jurisdiction leave it to the courts of another Convention jurisdiction loyally
to apply the Convention. If, therefore, it is the case that the proceedings
in France do have as their cause or object the determination of issues
which are the same as the issues which arise in the English action, this
Court must assume that the French Court will give effect to Article 21 of
the Convention and in such circumstances will either stay its proceedings
or decline jurisdiction.
[23] So also in circumstances where related actions are brought in the
courts of different contracting states, the shape of the Convention is that
any court other than the court first seised may, while the actions are
pending, stay its proceedings in favour of those before the court first
seised. But the normal procedure is of course that application is made to
the court second seised which is invited to stay its own proceedings rather
than that some pre-emptive application is made before the court first
seised to enjoin the other party from bringing proceedings in the court of
a different contracting state. Miss Boswell accepted that the plaintiffs and
L. could apply in France for the proceedings as against them to be struck
out.
[24] Miss Boswell was unable to point to any case in which the English
court has granted relief of the type sought here in relation to proceedings
pending before another Convention court. To my mind, that is not
surprising, having regard in particular to the observations of Lord Goff in
Airbus Industry v. Patel. I do not take time now to cite from Lord Goff's
speech but in the course of his speech he draws a distinction between
the system which was developed in the European Community and the
position which obtains as between competing common law jurisdictions.
Miss Boswell submitted that the reason why no such case could be found
was because this case is unique in that Air G does not challenge the
jurisdiction of the English court over the merits. I do not regard that
as a distinguishing feature. Articles 21 and 22 are often of relevance in
circumstances where there are two available and competent jurisdictions.
[25] It would, to my mind, strike at the whole basis and understanding
upon which the Convention was agreed and enacted if one Convention
court were to grant relief of the type which is sought here. The whole
basis on which the Convention is constructed is that it will be left to the
courts of each jurisdiction loyally to apply the principles enshrined in the
Convention.
[26] It seems to me that really, at the end of the day, Miss Boswell's
only hope was to submit, as in the event she did, that the bringing of
proceedings by Air G in France must be regarded as vexatious and be
enjoined by the English court in accordance with the well known principles
pursuant to which in certain circumstances the court will enjoin a party
from bringing proceedings which can properly be regarded as vexatious or
oppressive. However, it is a starting point of such jurisdiction that in order
to be characterised as vexatious or oppressive, the foreign proceedings
must ordinarily infringe a legal right of a party. That is to say that they
must be brought in breach of some legal or equitable right not to be sued
in a foreign jurisdiction.
[27] The principles contained within the Brussels Convention do not
of themselves give rise to any such right not to be sued in another
jurisdiction. They are merely a framework which it is expected will be
applied by the various Convention courts. Furthermore, the plaintiffs
cannot find within the terms of the lease any right not to be sued in a
jurisdiction other than the English court. Indeed, the position is quite
to the contrary because section 25(C) provides that the jurisdiction of
the English court is non-exclusive, and the rest of the clause expressly
contemplates that proceedings may be brought in another jurisdiction.
I have in mind particularly sub-clause (iv) of section 25(D) but one
might also refer to sub-clause (iii) and indeed to section 25(E). For these
reasons it is to my mind unnecessary to attempt to characterise the
precise nature of the French proceedings.
[28] For all these reasons I have no hesitation whatsoever in declining to
grant the injunction sought to restrain the defendants from proceeding
against the plaintiffs and L. in proceedings before the Commercial Court
of Bobigny. It seems to me that the appropriate course for the plaintiffs
to take, if so advised, is to make application to that court itself along
the lines of the submissions that they have made before me. But that
of course is entirely a matter for them and it is also of course entirely a
matter for the French court to determine those issues. Nothing that I say
in this judgment is intended to reflect any views of this court as to the
manner in which the court in Bobigny should exercise its own jurisdiction.
Those are matters to be determined by that court and by that court alone,
as to which this court can have nothing whatever to contribute.
[29] The next item of relief sought is a declaration that this court, that is
to say the English court, was first seised of the proceedings between the
plaintiffs and the defendants on 4 December 1998. There is no dispute
between the parties but that the English court was first seised on 4
December 1998. Mr Flint for the defendants is anxious that the court
should not make a declaration in this form, perhaps because, as drafted,
it is capable of being read as expressing a view as to which court, as
between the English court and the French court, was first seised, although
I am bound to say that on a proper reading of the declaration sought
it does not, to my mind, have that effect. I can, however, understand
Mr Flint's sensitivity on the point, and it seems to me that this can be
overcome firstly by my making it clear, as I do, that this court is not
purporting to decide which of the two courts, that is to say this court or
the Commercial Court of Bobigny, was first seised of proceedings between
the plaintiffs and the defendants; this court is concerned only to declare,
as is the case, that the first occasion upon which this court, the English
court, became seised of the proceedings between the plaintiffs and the
defendant was on 4 December 1998. Mr Flint suggests that the making
of a declaration in that form might not serve any useful purpose but
to my mind it is possible that the making of a declaration in that form
might serve a very real purpose should any issue arise in the French
proceedings as to the date upon which the English court was first seised.
It would, to my mind, be little short of disastrous if the proceedings in
France had in turn to await a further determination of the English court on
that issue. Accordingly, I propose to declare that the English court became
seised of the proceedings between the plaintiffs and the defendants
herein on 4 December 1998.
[30] The third head of relief sought is an order that the defendants
shall take all proper steps to preserve the aircraft in accordance with
its obligations under the lease agreement and/or pursuant to Rules of
the Supreme Court, Ord. 29, r. 2(1). Certain evidence has been filed in
relation to that and whilst Miss Boswell makes no concessions as to the
adequacy of the evidence or as to the satisfactory nature of the position
as it appears, nonetheless she does not pursue that application today but
asks that that stand over and be adjourned. In my judgment, that is the
course which the court should appropriately take.