SAVILLE LJ: These are applications for leave to appeal from two decisions
of Mr Justice Waller sitting in the Commercial Court. The proceedings arise
out of seven materially identical contracts for the sale by the plaintiffs to
the defendants (an Italian company) of aluminium ingots. The plaintiffs
allege that the defendants are in breach of these contracts.
On Jan 23, 1992, and in respect of one of these contracts, the defendants
commenced proceedings in the Court of Padua in Italy, in effect seeking a
declaration that they were under no liability to the plaintiffs. Two months
later the plaintiffs commenced proceedings in the Commercial Court for
damages for breach of the other six contracts. Later the same year the
defendant also commenced further proceedings in the Padua Court in
respect of the same six contracts.
In December, 1992, after the first hearing before Mr Justice Waller, the
learned Judge held that the six contracts contained an English jurisdiction
clause which fell within the provisions of art 17 of the Brussels Convention
(as now amended) and for this reason declined to stay these proceedings
under art 22 of the same Convention (see [1993] 2 Lloyd's Rep 60).
The plaintiffs then started proceedings in this country for damages for
breach of the seventh contract. In July, 1993 the learned Judge declined
to stay these proceedings under art 21 of the Convention, again on the
basis that the contract was subject to an art 17 jurisdiction clause which
gave the English Court exclusive jurisdiction (see ante p 560).
The original applications for leave to appeal raised a number of issues
including, in particular, the question of the inter-relationship between
art 17 and arts 21 and 22 of the Convention. However, in the light of
the judgment of this Court in Continental Bank NV v Aeakos Compania
Naviera SA and Others, [1994] 1 Lloyd's Rep 505 given in November,
1993, the defendants accept that the only issue on which they can pursue
their applications is whether the learned Judge erred in concluding that
there was a sufficient consensus between the parties to amount to an
agreement on jurisdiction within the meaning of art 17.
Mr Justice Waller took the view that in proceedings of this kind the
plaintiffs must establish that it is highly likely that such a consensus was
reached. The defendants do not criticize this approach, which was, of
course, highly favourable to them.
The learned Judge also considered that the question of consensus must
be considered in the light of Community law. Again, the defendants accept
that this is the correct approach.
The criticism that the defendants do make is that the Judge erred in his
analysis of the facts, and his application of European law principles. In
their submission no consensus was established by the plaintiffs.
Mr Justice Waller embarked on a careful and thorough analysis of the
facts and the law at pp 64-67 of [1993] 2 Lloyd's Rep, concluding, as I
have said, that a consensus was established.
For my own part, I cannot fault the reasoning or conclusion of the learned
Judge. It seems to me that there was ample material upon which the
Judge could conclude as a matter of Community law that the parties had
reached a consensus that the English Court should have jurisdiction,
so that having also concluded that the formal requirements of art 17
were met, the Court could proceed on the basis that there was an art 17
English jurisdiction agreement between the parties.
In particular, the Judge considered the European Court cases cited to us
this morning, and I respectfully agree with his analysis of them. In the
end, the question of consensus is simply a question as to whether or not
the parties concerned truly consented or agreed to a special jurisdiction
clause to govern any disputes between them.
I am bound to say that, having looked again at the material on which the
learned Judge relied, it seems to me to be self-evident that there was
such a consent or agreement in the circumstances of the contracts with
which we are concerned. Accordingly I would refuse the applications.
These were adjourned to the Full Court because Lord Justice Steyn
considered that if the Court of Appeal was minded to grant leave, then
an important question arose as to whether or not the Court of Appeal
has jurisdiction to impose conditions on the grant of leave. In the
circumstances, so far as I am concerned, that question does not now
arise.
I would like to add this: Mr Justice Waller was concerned with an
interlocutory question on jurisdiction; in effect, whether or not the
plaintiffs should be allowed to pursue their claims in this country. It seems
to me that in matters of this kind the Court of Appeal should be slow to
grant leave to appeal, save where it is clearly arguable that the Judge
erred in failing to apply the appropriate principle. To do otherwise would
be to encourage the tendency – which I have deprecated in a number of
cases in the Commercial Court – for interlocutory matters of the present
kind to be turned into lengthy and expensive trials on affidavit, in order
to determine whether or not there should be a proper trial on proper
materials in this country.
To my mind such a tendency defeats the very object of the exercise,
which is not to have a trial, but to decide whether or not, in law and
justice, a foreign party should be put to the expense and inconvenience of
a trial in this country.
In this regard, I would echo and adopt the remarks of Lord Templeman in
Spiliada Maritime Corporation v Cansulex Ltd, [1987] 1 Lloyd's Rep 1 at p
3; [1987] AC 460 at p 465 which, although directed at other jurisdiction
questions under O 11, seem to me to be equally applicable to jurisdiction
questions of the present kind.