Cockerill J’s decision last month in UCP Plc v Nectrus Ltd  EWHC 380 (Comm) may well encourage some lawyers to groan further about the effects of EU law on questions of jurisdiction. The background was a corporate dispute of spectacular dreariness: suffice it to say Nectrus alleged UCP owed it several million, while UCP had a claim for damages against Nectrus arising out of the same events. The relevant contract contained a non-exclusive English jurisdiction clause. Nectrus sued in the Isle of Man: a month or so later UCP sued in England. Nectrus sought to argue forum non conveniens to remove the hearing to Douglas. UCP argued that the English court not only should not but could not decline jurisdiction. It observed that the court had jurisdiction under Art.25 of Brussels I Recast, and that the limited lis alibi pendens provisions in Arts.33 and 34 were not applicable (since they only affected jurisdiction under Arts.4, 7, 8 and 9 and not jurisdiction by virtue of agreement). Cockerill J agreed, following dicta from Popplewell J in IMS SA v Capital Oil & Gas Industries  4 WLR 163 and the IISTL’s own Peter Macdonald-Eggers QC in Citicorp Trustee Company Ltd v Al-Sanea  EWHC 2845 (Comm). Logical, certainly, in the light of the acepted interpretation of Brussels I. But it does have the effect that a non-exclusive jurisdiction clause now means not so much “You can, but don’t have to, sue in England” as “You can sue me outside England, but if you do I can still insist on proceedings taking place here.” Not quite the same thing, most lawyers will (one suspects) conclude.
English courts aren’t best pleased when they give judgment, only to find someone busily trying to frustrate the claimant’s efforts to collect on it. Last year, in JSC BTA Bank v Ablyazov  EWHC 230 (Comm) (noted here on this blog), Teare J very rightly decided that an elusive judgment debtor’s pal was liable in tort to the judgment creditor when he helped the debtor shuffle his assets around in an elaborate “now you see them, now you don’t” exercise. Yesterday, in Marex Financial Ltd v Garcia  EWHC 918 (Comm), Knowles J carried on the good work. Marex had got judgment in England for some $5 million, plus the usual freezing orders, against a couple of BVI companies controlled by SG, a globetrotting businessman. SG thereafter took care to avoid the UK, instead taking steps to spirit away the English assets of his companies to a web of entities in far-flung jurisdictions where it was difficult, if not impossible, for Marex to track them down. Marex thereupon sought permission to sue SG out of the jurisdiction, alleging a tort committed in England. What tort? In so far as SG might be deemed to have acted with the companies’ consent, inducement of breach of contract (i.e. the implicit contract by the companies to pay the judgment debt); and in so far as the companies hadn’t consented and hence he was in breach of duty to them, causing loss to Marex by unlawful means. Knowles J agreed with both limbs of the argument, swiftly disposed of a forum non conveniens point, and allowed service out, thus giving Marex at least a decent chance of getting paid.
Good news, therefore, to judgment creditors. Moreover, while this was a non-EU service out case, note that so long as any relevant monkey-business took place in England, its reasoning will apply equally to EU and EEA-based defendants under Brussels I and Lugano, because the tort “gateway” has been interpreted similarly in both cases since Brownlie v Four Seasons Holdings Inc  EWCA Civ 665;  1 W.L.R. 1814.
So good luck and good hunting.
A nice point of potential importance in conflict of laws: see AMT Futures Ltd v Marzillier & Ors  UKSC 13 today. If someone in Germany has a contract with you providing for exclusive jurisdiction in England and they nevertheless sue in Germany, do the English courts have jurisdiction under Brussels I to hear your claim for damages? Against the other contracting party, clearly Yes. But what if you want to sue a third party for bankrolling the action and thereby inducing the breach of the obligation? Is the harm suffered by you suffered here within Art.5.3 (Art.7.2 Recast)? No. The relevant obligation is to be construed as an obligation to refrain from suing in Germany, not an obligation to sue in England if you sue at all.
Another interesting point raised in the case was whether entertaining an action for breach of the obligation not to sue in Germany was itself contrary to the full faith and credit ethos lying behind the Brussels regime (as denied in West Tankers v Allianz  EWHC 854 (Comm)). The SC refused to grasp this hot potato: perhaps wisely, since it may well not matter after Brexit.
Another transnational tort claim against a UK holding company on the lines of Chandler v Cape plc  EWCA Civ 525;  1 WLR 3111 was dealt with today by Laing J: see AAA v Unilever Plc  EWHC 371 (QB). Employees and others connected with a sub-subsidiary of Unilever in Kenya suffered political violence at the hands of thugs after the 2007 Kenyan election. They sued not only the Kenyan company involved (essentially the Brooke Bond tea operation), but Unilever, alleging failure by it as holding company to make sure its local operation took care to protect them. Unilever sought to get rid of the action, on the basis of (a) Act of State (since the actions, or rather inactions, of the Kenyan police were in issue); (b) forum non conveniens; and (c) case management grounds. The attempt failed. On (a) it had to founder since Belhaj v Straw  UKSC 3;  2 WLR 456 and nothing more needs to be said. On (b) her Ladyship was forced by Brussels I Recast, Art.4 and Owusu v Jackson  QB 801 to refuse a stay, even though most of the connections were with Kenya, and indeed there were fairly clear indications that the claimants were only suing Unilever here in order to be able to sue the Kenyan subsidiary in the English rather than the Kenyan High Court. What is more significant is the decision on (c), the case management argument. Unilever relied on a throw-away line of Coulson J in Lungowe v Vedanta Resources Plc  EWHC 975 (TCC) at  to argue that there might be a stay if there was no serious issue to be tried between the claimants and Unilever. But even though it was found that there was indeed no serious issue to be tried between the claimants and Unilever, Laing J refused to go down this road, regarding it as an unjustified attempt to sideline Owusu v Jackson in the absence of pending proceedings abroad such as would justify a stay under Brussels I Recast, Art.34. The only way Unilever could get rid of the action was by showing, in the old-fashioned way, that it was bound to fail.
This is an unfortunate result for defendants sued on dubious causes of action in England, if only because it is much more time-consuming and expensive to show that an action must fail than to argue that it is being brought in the wrong place. One suspects that this will add to the pressure on the government to include in its Brexit shopping-list a wholesale revision of the Brussels I provisions on jurisdiction. Indeed, if this were done, one attraction of companies setting up shop here would be precisely the protection against inappropriate lawsuits that the current EU law pointedly fails to give.
Evidence has recently been given to the EU justice sub-committee of the House of Lords that Brexit may scare off foreign businessmen from choosing English law and jurisdiction in favour of the Netherlands, Germany or Singapore. Sir Oliver Heald, Justice Minister, has pooh-poohed the idea. We suspect that, even discounting political hype, Sir Oliver may well be correct. Provided that arrangements are made for mutual recognition and enforcement of judgments between the UK and EU – something in all parties’ interests, even if the preservation of the whole of Brussels I is not – it is difficult to see how Brexit will change anything.
P&I clubs already have their issues with the EU, as regards (for instance) Solvency II: see our post here. Now another cloud looms. P&I clubs based in the UK jealously guard their English law and jurisdiction clauses. But where a direct action is brought in an EU state, is the jurisdiction clause compatible with EU law?
The point has arisen in Denmark and is headed for the ECJ. A Danish tug, entered with Navigators Management (UK) Ltd, caused mayhem in the Danish port of Assens. The tug’s bareboat charterers being insolvent, the port sued Navigators in Denmark under the Danish direct action statute: Navigators relied on the English law and jurisdiction clause and insisted on being sued in England. The port relied on Arts 10 and 11 of Brussels I (equivalent to Recast 12 and 13, there being no relevant difference between the two here), saying that in matters of insurance the club could be sued in Denmark as the place where the damage occurred. Navigators said that Art.13 (recast Art.15) allowed the relevant jurisdiction to be ousted by agreement. The port retorted that this was all very well, but a term in the contract between the charterers and the club could not in the nature of things be binding on it as a third party. Whereupon the club riposted that if the port wanted the advantage of the contract between it and the charterers then the port had to take that contract warts (i.e. jurisdiction clause) and all.
At this stage it’s not clear why the port wanted so much to sue in Denmark. We can only presume that, despite the cover being written under English law, Danish law would apply to the exclusion of English law to at least some aspects of the direct claim and deprive the club of some advantage or defence otherwise available.
What the ECJ will hold is anyone’s guess. One hopes it will side with the insurer: one way P&I clubs keep costs down and liabilities in check is to avoid entanglements with foreign law as far as possible, and keep in reserve the possibility of insisting on “pay to be paid” provisions — something many EU jurisdictions take a poor view of. There’s certainly some logic on that side. In particular, the right under Art.13 to exclude jurisdiction is specifically stated not to apply to direct personal injury claims against liability insurers: something that seems to suggest that but third party direct claims in general can be excluded. On the other hand, logic (if one may say so) has not always been the ECJ’s strong suit when the court has been presented with the opportunity to extend EU control over commercial activities.
If the decision goes against Navigators, we may see yet another item added to the already long UK Brexit wish-list.
An article on the effects of Brexit of particular interest to commercial lawyers, this time from a fairly clear pro-EU standpoint. Unfortunately only in German; but for those who read the language a fairly full abstract is available for free here. The full citation of the article is J.Basedow, Brexit und das Privat- und Wirtschaftsrecht [Brexit and private and business law] (2016) 24 Zeitschrift für Europäisches Privatrecht 567.
The points of interest to commercial lawyers in the UK are these (in summary):
(1) Once the UK is no longer a member State, any duty to implement EU law in future obviously falls away. The question of the continuing status of existing EU secondary law is a matter for UK law.
(2) Because Directives generally have no direct effect, but rely on local legislation to give them effect in member States, SIs and other legislation implementing them in the UK will remain effective indefinitely unless and until repealed. Thus in general nothing will happen to the acquis on consumer protection, workers’ rights, unfair commercial practices, company law and IP.
(3) Regulations, generally directly effective, will be problematical, if not enacted in the UK. There may well be concern that if and when the UK quits, a company with solely Societas Europaea status may end up high and dry. So also with Community trademarks.
(4) Treaties concluded by the EU on the UK’s behalf also cause problems. There’s probably no difficulty with the Montreal Convention or the Cape Town Convention, which the UK also ratified on its own behalf. But the Hague Convention on jurisdiction agreements of 2005, ratified solely by the EU, is a different matter.
(5) In so far as the UK is a third state, a number of important rights are called in question within the remaining member states of the EU (in the UK this is obviously a matter for domestic legislation, but that is by-the-by). Examples: rights of overflight under Regulation 2408/92 (Easyjet watch out!), the Services Directive 2006 and the right to offer financial and insurance services (one-third of UK financial services being sold within the EU). And something will have to be done about civil jurisdiction and judgments. Brussels I will cease to require recognition of UK judgments on the Continent: nor, in its present form, can the gap be filled by Lugano.
With the repeal of the European Communities Act 1972, EU Regulations will cease to be part of UK law. There are three important Regulations of concern to shipping practitioners.
- The Brussels Recast Judgment Regulation 1215/2012
- The Rome I Regulation on choice of law for contracts
- The Rome II Regulation on choice of law i in non contractual matters.
If these are not re-implemented into domestic law, then this we are back to the common law as regards jurisdiction. When suing a defendant domiciled in the UK it would once again become possible to seek to stay proceedings on grounds of forum non conveniens.
As regards choice of law, we would be back to the Contracts (Applicable Law) Act 1990 whose provisions are quite similar to those in Rome I. For tort it would be back to the Private International Law (Miscellaneous Provisions Act) 1995 whose provisions contain significant differences from Rome II.
If losing the three Regulations is regarded as non conveniens then Parliament needs to re-enact them into domestic law. Rome I and Rome II could be re-enacted without the need for any action from the remaining 27 EU Member States, although Parliament may choose to amend parts of the Regulations. Possible candidates for amendment of Rome II would be:(a) clarification that it does not apply to torts on the High Seas and; (b) providing that the applicable law where limitation proceedings are brought before the courts of the UK is that of the UK. Some thought would have to be given as to whether the ECJ should be treated as having any authority as regards interpretation of the domestic legislation which re-enacts the two Regulations.
With the Brussels Recast Judgment Regulation the position is more complex if it is thought to be desirable to maintain a common jurisdiction framework with the remaining EU Member States. They would need to amend the Regulation to include the UK, perhaps with a simple definition clause ‘Member state includes the United Kingdom’ and similar amendment, mutatis mutandis, with references to a ‘non-Member State’. The UK would also have to agree to the authority of the ECJ as regards the domestic legislation reimplementing the Regulation.
An alternative would be for the UK to ratify the 2007 Lugano Convention which tracks the provisions of the 2001 Brussels Regulation (the ‘unrecast’ version). However, this would require the UK first to become a member of the European Free Trade Associaton, or to obtain the agreement of all the Contracting Parties, the European Community and Denmark, Iceland, Norway and Switzerland.
The UK could also ratify the Hague Convention on Choice of Court Agreements 2005 (Hague Convention), which came into force as between the Member States and Mexico on 1 October 2015 ( for intra EU matters the Recast Regulation prevails). The Convention deals with exclusive jurisdiction clauses in favour of a Contracting State and for recognising and enforcing judgments within Contracting States in respect of contracts with such clauses.
In our next blog I shall address some of the shipping related Directives that will cease to have effect following repeal of the European Communities Act 1972.
A City firm advises a commercial client from elsewhere in the EU on a big deal. Months or years later the client alleges the advice was bad and that it has suffered loss. If it comes to a claim in tort, can the firm insist on being sued in London, or must it (and its PI insurers) gear up to fight the proceedings in Tallinn, Trieste, or wherever the client is located? This depends on what is now Art.7(2) of Brussels I Recast, allowing suit in tort “in the courts for the place where the harmful event occurred or may occur”, and whether an Italian or Estonian trader is deemed to suffer loss in Italy or Estonia because — well — it is based there.
The ECJ today, sensibly, said No: see Universal Music International Holding (Judgment)  EUECJ C-12/15. So a multinational that got its fingers burnt in a Czech acquisition couldn’t sue in Holland merely because its profits there were diminished. As we said, a matter for relief in EC3 and EC4.
A decision last Friday from a deputy High Court judge which may raise the odd Euro-eyebrow: see XL Insurance Company SE v AXA Corporate Solutions Assurance  EWHC 3431 (Comm) (available on BAILII).
Put simply, in 2008 there was a nasty railroad smash in California involving Connex. Connex’s insurer XL paid up to the victims. They then alleged that AXA, a French insurer, had insured the same risk and claimed contribution from it in London on the basis of double insurance. AXA applied to strike on the basis that, being French-based, it had the right to be sued in France under Brussels I Recast, Art.4. XL countered on the basis that this was a claim “relating to a contract” under Art.7(1), or one “relating to tort, delict or quasi-delict” under Art.7(2); in which case AXA could be sued in the place of performance or the place where the harmful act occurred as the case might be.
HHJ Waksman QC obliged by striking out.
This was not a claim relating to a contract, since although there were a couple of insurance contracts in the background, a claim relating to a contract involved a contractual duty of some sort obliging the defendant to render performance to the claimant: this wasn’t the case here. If anything, one insurer’s liability to contribute to the other’s payment is a claim in unjust enrichment. True, an EU Advocate-General had said exactly the opposite a couple of months earlier in Ergo Insurance v P & C Insurance Cases C-359 and 475/14 (see http://curia.europa.eu/juris/document/document.jsf?text=&docid=168543&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=281090), opining that this was a contract claim, with the place of performance being that of the underlying insurance policies. But the judge did not mince his words: he said that Adv-G Sharpston (incidentally an English ex-academic long since inveigled away by the good life in Brussels) did not understand the matter and was simply wrong.
Nor was this anything “relating to tort, delict or quasi-delict”. Taking the narrow view of this as requiring at least some degree of liability for wrongs (see Reichert v Dresdner Bank  I.LPr. 404), it didn’t embrace contribution: no wrong was committed by one insurer not paying while another insurer did.
This all matters, if only because contribution claims can’t normally be subjected to a jurisdiction agreement. Put shortly it seriously raises the bar for those seeking contribution if their lawyers may potentially have to jurisdiction-hop anywhere in the EU to obtain their money. But the betting is strong that this isn’t the last word. Watch this space.