Tag: Tort

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Courts Amsterdam somewhat conservatively on locus delicti commissi following lack of rabbinical-instructed engagement with Get procedure at Amsterdam Beth Din.

In ECLI:NL:GHAMS:2023:887 (parties names anonymised given the nature of the case; husband and wife have been divorced under civil law since 2018; the ex-husband is domiciled and lives in France; the ex-wife is also domiciled in France yet is habitually resident in Israel) the courts at Amsterdam held upon appeal that the mere rabbinical (Conference of European Rabbis) instruction for a husband to appear before the Amsterdam Beth Din so as to grant get to his wife, does not suffice to make Amsterdam either locus delicti commissi or locus damni.

The French courts have already granted damages to the wife on the basis of the husband’s continued refusal to engage with the Beth Din. Authority referred to viz A7(2) BIa includes CJEU Vereniging van Effectenbezitters, and leads the court to conclude that Amsterdam is not a new locus delicti commissi viz the husband’s continued refusal to engage with the religious courts, but rather a continuation of the same delicti commissi which led to the French allocation of damages [3.11]. [3.12] the wife’s Mozaik reference to CJEU Shevill is not accepted with reference to the possibility under Jewish law of other Beth Dins to have jurisdiction in the case.

On locus damni and per CJEU Universal Music, I understand the reluctance to identify Amsterdam as locus damni given the lack of links between the case and the parties, to The Netherlands. Per CJEU Ofab I would suggest however that a different outcome on locus delicti commissi could have been possible.

Geert.

EU Private International Law, 3rd ed. 2021, 2.432 ff.

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Transworld Payment Solutions: consideration of applicable law under Rome II for deceit, conspiracy, equitable wrongs

I last updated the draft for this post in November….I am hoping somewhat to catch up with posts this week.

In Transworld Payment Solutions U.K. Ltd, Re [2022] EWHC 2742 (Ch) Freedman J refused an application to set aside an order to serve out of jurisdiction. Claimants’ case is that the E&W proceedings arise out of an alleged “VAT carousel fraud”, carried out in England and Wales, by English and Welsh companies. There are concurrent Curaçao proceedings.

Defendants raise a forum non conveniens jurisdictional defence. They submit that the Curaçao court is presently seised as to the issue as to whether the companies were effectively parties to a number of settlement agreements, and the effect of the same.  These Settlement Agreements are subject to Curaçao law and contain a Curaçao jurisdiction clause (which is not exclusive).  They also submit that the fraud claims will be determined as part of the applications for negative declarations in the Curaçao Proceedings.  The Claimants dispute that the fraud claims or the full scope of the fraud claims will be determined in the Curaçao Proceedings.

There are significant areas of dispute between the parties as regards what is in issue in the Curaçao Proceedings. The issue that is of most interest to the blog, is the consideration of applicable law under Rome II. [79] Freedman J notes “VTB [VTB Capital Plc v Nutritek International Corp [2013] UKSC 5] ,was a case where English law (used as a shorthand to refer to the law of England and Wales) was the proper law of the tort, but where the majority of the court nonetheless stayed the action in favour of the matter being more appropriately litigated in Russia.”

A first issue is the catchment area of Rome II’s ‘non-contractual obligations’, to typically common law equitable wrongs including dishonestly assisting breach of trust/fiduciary duty. [83] the judge holds with reference to Dicey, Morris and Collins 16th Ed. that they likely do. [84] The most likely lex causae following Rome II is English law and  ‘(I)t seems unlikely that Article 4(3) would apply given the closer connection of any tort or delict with England and Wales rather than with Curaçao or any other country. ‘

The issues will be further discussed at trial and one imagines both Rome I and Rome II will return there. But for now, jurisdiction is going ahead.

Geert.

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Grand Production v GO4YU. Szpunar AG (not, due to suggested inadmissibility) on copyright, VPNs and forum delicti for platform streaming.

Szpunar AG opined a few weeks back in C-423/21 Grand Production v GO4YU  ea. The case involves a variety of issues related to streaming and VPNs, many of which concern telecoms law yet one is of interest to the blog: namely the question whether

in the event of an allegation of infringement of copyright and related rights guaranteed by the Member State of the court seised, that court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs – because the territoriality principle precludes domestic courts from having jurisdiction to determine and examine the facts in relation to foreign acts of infringement – or can or must that court also rule on offences committed outside that territory (worldwide), as alleged by the author whose rights were allegedly infringed?

It transpires from the Opinion however that the case in the national court does not involve one for damages, yet rather one for a temporary injunction prohibiting distribution. To the degree this is aimed at the Serbian defendants at issue, these are domiciled outside the EU and hence not subject for actions in tort, to Brussels Ia. Against the Austrian defendants, the case is subject to full jurisdiction under A4 forum re, hence not triggering the full or partial jurisdictional issues of the relevant CJEU case-law (Bolagsupplysningen etc.).

The AG suggests inadmissibility of the Brussels Ia question.

Geert.

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Fong Chak Kwan v Ascentic. The Hong Kong Court of Final Appeal aligns the damage jurisdictional gateway with the UKSC’s Brownlie approach.

This post is one for the comparative binder. Fong Chak Kwan v Ascentic Limited and Others [2022] HKCFA 12 (many thanks to Poomintr Sooksripaisarnkit for alerting me to the judgment) discusses a variety of issues, the one of interest to the blog is the tort gateway for a tort allegedly committed outside of Hong Kong. The ruling on that issue was delivered by Lord Collins, a former UKSC judge who continues to sit in the Hong Kong judicial system (unlike others who have withdrawn from the Hong Kong courts in light of the region’s rule of law issues).

[67] Direct damage was sustained on the Mainland, with indirect damage only in Hong Kong.

The First Instance judge [68] ‘in line with the majority judgments of Lady Hale and Lord Wilson in [UKSC Brownlie] .., and being unpersuaded by the minority view of Lord Sumption, decided that (a) the expression “damage” in Gateway F was not limited to damage which completed the cause of action; (b) the expression was not limited to direct damage as opposed to indirect/consequential damage; (c) where damage was felt in more than one jurisdiction, indirect/consequential damage qualified under Gateway F if it was of some significance; (d) the expression was to be given its ordinary and natural meaning, which embraced indirect/consequential damage; and (e) the consequences of a wide interpretation were sufficiently addressed by the discretion as to forum conveniens.’ 

The Court of Appeal [69] ‘like the judge, held that the reasoning of the majority in Brownlie v Four Seasons Holdings Inc was to be preferred to that of the minority. Damage included all of the heads of damage which might be suffered as a result of tortious conduct, including all the detriment, physical, financial and social which the plaintiff suffered as a result. The natural and ordinary meaning of Gateway F was clear, and there was no basis for drawing a distinction between direct and indirect damage. Nor was there any basis for applying the European jurisprudence on the Brussels Convention and Brussels I Regulations. Finally, the expression “the damage” in Gateway F did not mean that all the damage, or the damage which completed the cause of action, had to be sustained in Hong Kong.’

[74] ff Collins NPJ provides a historic and geographical comparative (Commonwealth) tour d’horizon, confirming the lower courts’ view.

[107]-[108] ‘(I)n the light of the legislative purpose, the natural and ordinary meaning of the word “damage” is just that, and the rule does not distinguish between the damage which completes a cause of action and that which does not, nor does it distinguish between direct or indirect damage, or between physical or financial damage. The question is whether there is a legislative purpose, or a public policy, or an absurd or undesirable result, which justifies a narrower construction, to encompass only direct damage as opposed to indirect damage.’: the judge finds there is no such purpose, policy or result.’

[109] he discusses 3 flows in the reasoning of the alternative reading, which are worth a read. [121] the same safety valve is emphasised as the UKSC did in the majority view in Brownlie: where the exercise of the locus damni gateway leads to unwarranted results, forum non conveniens can come to the rescue.

Geert.

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Nagel v PDC. Permission for service out withdrawn on forum non and disclosure issues.

W Nagel (a firm) v Pluczenik& Ors [2022] EWHC 1714 (Comm) concerns litigation in the diamond sector. It is an appeal against permission for service out which triggers various jurisdictional considerations, including forum non, as well as disclosure and ‘clean hands’ concerns.

The judgment is a good illustration of claim and counterclaim serving jurisdictional purposes.

Defendants are a Belgium-domiciled diamond manufacturer (PDC) and its equally Belgium-based managing director Mr Pluczenik . Claimant Nagel is a UK based diamond broker. Nagel is defendant in Belgian proceedings brought in May 2015 by defendants in the E&W proceedings, who used a Belgian-based anchor defendant to sue the English claimant in Belgium (A8(1) Brussels Ia); Nagel are also defendant in a September 2015 Belgian claim brought by the same claimants and since consolidated by the Belgian courts. Nagel itself issued a claim against PDC in the English High Court in March 2015, did not serve it, but sent a letter before action which indicated that it intended to bring proceedings in England.

In June 2015, as direct reaction to the Belgian Claim, Nagel amended the English Claim to seek negative declaratory relief to the effect that it was not liable in respect of a number of contractual duties.

In July 2017 Popplewell J found for Nagel, including in respect of the negative declaratory relief: W Nagel (A Firm) v Pluczenik Diamond Company NV [2017] EWHC 1750 (Comm). His judgment was confirmed by the Court of Appeal: [2018] EWCA Civ 2640, payments were made and the E&W proceedings ended.

Come forward third defendant in the current E&W proceedings, Ms Shine, who was the CEO of a subsidiary of De Beers – De Beers Trading Company. She has never worked for either of the Claimant or the First or Second Defendants, but she gave a statement to the Belgian court in 2017, supporting PDC. Her statement was provoked it seems by the outcome of the E&W proceedings which did not match her recollection. Nagel originally objected to jurisdiction solely on the ground of lis pendens (A29-30 BIa).

In July 2020 (one can see that in this case the speed of Belgian proceedings is nothing like in the case I reported yesterday) the Belgian claimants put forward their arguments on jurisdiction based on Antwerp being forum contractus per A7(1) BIA (they argued centre of gravity or characteristic performance was in Antwerp) [20].

In an interim, February 2021 interim judgment the Belgian court held it had jurisdiction on the basis of A7 forum contractus. It considered the lis pendens issue noting that it could no longer apply now that the English Claim was concluded. It then concluded that it had jurisdiction to determine the dispute. The Court noted that “the defendants apparently do not (or no longer) dispute” that the services were performed in Antwerp. 

Nagel then dropped the jurisdictional arguments and at hearings 7 May 2021 onwards went for res judicata, arguing …the English judgment has the status of res judicata with regard to the present proceedings, so that the court on the basis of Article 23 and 25 Judicial Code [the Belgian CPR, GAVC] is currently prohibited from again deciding on the claim…” [30]. End of May 2021 Nagel then commenced the present claim in the Commercial Court. The claim alleges that the Belgian Claim constitutes a tortious abuse of process and forms part of an unlawful means conspiracy between the Defendants. Ms Shine is the Third Defendant. It is said that the provision of the Shine Statement and its (lack of) merits justify an inference that she was involved in the abuse of process and the conspiracy [31].

In September 2021 Moulder J gave permission for service out (required post Brexit) on the basis that the claim met limb (a) of the tort gateway viz “damage was sustained, or will be sustained, within the jurisdiction” (Nagel trades from England, paid sums to Belgian lawyers from a bank account in England and has consequently suffered loss here; she also UKSC Brownlie for the damage gateway). She refused permission on two other gateways – necessary and proper party and tort committed within the jurisdiction. It is alleged by defendants that Moulder J was not given any indication of the Belgian interim judgment.

The Belgian Claim is now scheduled for trial in January 2023.

[64] Cockerill J holds that the Belgian findings on jurisdiction and the existence of a judgment which dealt in terms with jurisdiction should on any view have been put before Moulder J and [65] that this breach of duty of disclosure was deliberate. She also holds [70] that the picture sketched of the Belgian proceedings being ‘in limbo’ was plainly wrong: they were definitely active, and that it had been wrongfully suggested that the Belgian judge was not going to deal with the res judicata issue. On that basis, she would have set aside permission for service out [75] however this point turns out to be obiter for the reason for reversal of the order is that E&W are not the appropriate forum [76] ff. Relevant factors being that (i) the jurisdiction of the Belgian Courts appears to have been established by PDC and accepted by Nagel (at least on a prima facie basis), (ii) the Belgian claim is progressing and (iii) there is scope for determination of a res judicata issue (which replicates the issues sought to be brought here) and (iv) a determination of the res judicata issue is (and was) likely to be determined relatively soon.

Moreover, Belgium clearly is an appropriate forum [79] the Belgian Claim is one brought by a Belgian company (PDC), arising out of services provided in Belgium (as the Belgian Court has held), alleging fraud on the Belgian Court. (The serious issue to be tried discussion leads to an analysis of Article 4 Rome II as retained EU law).

A good illustration as I mentioned of claim, counterclaim, and of course the clean hands principle.

Geert.

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Kwok v UBS. Cockerill J helpfully on Lugano, economic loss and branch jurisdiction.

Update 01 March 2023 the Court of Appeal has today confirmed Cockerill J’s approach in a succinct judgment: Kwok & Ors v UBS AG (London Branch) [2023] EWCA Civ 222

Update 25 02 2022 thank you Matthew Hoyle for letting me know that Justice Cockerill today granted UBS permission to appeal against her judgment.

In Kwok & Ors v UBS AG (London Branch) [2022] EWHC 245 (Comm) Cockerill J holds on forum damni (Article 5(3) for purely economic loss, and branch jurisdiction (Article 5(5) for the English courts under the Lugano Convention. Defendant is Switserland based and the proceedings clearly were initiated prior to Brexit.

On A5(3) locus damni, all parties and the judge agree that CJEU authority is not easy to disentangle and does not unequivocally point into one direction: see eg [84] ‘the authorities are not entirely pellucid on what they do say.’

The bank, defending, argues ia that a rule of thumb under (limited) English authority is that in a case of negligent misstatement the damage will occur where the misstatement is received and relied upon. Cockerill J distinguishes the authority from current case and also points out [82] that all cases concerned predate the CJEU authority particularly in Lober and Vereniging van Effectenbezitters, and that ‘the tide of authority is against the proposition that loss is suffered wherever a claimant ultimately feels it’ [85]. Having summarised the lines of interpretation following from CJEU authority, she concludes [113]

Once the focus is on actual manifestation (of damage, GAVC) the most natural analysis is to view the damage as occurring where and when the Acquired Shares were liquidated.

here, London, where the shares claimants had invested in were held and where the funds they had invested were depleted; the loss crystallises, manifests, becomes certain and irreversible with the sale of shares and that loss of claimants’ Monetary Contribution which had merged into the shares  [115].

The account, where the damage was first “registered” or “recorded” was in London with the defendant itself (as in CJEU Kronhofer) [117]. The Universal Music-instructed ‘special circumstances’ cross-check also points to London: [118]

London was the place at which it had been agreed by all parties that the Acquired Shares would be held, and all of the contractual documents UBS entered into (albeit for a transaction at one remove from the Claimants) were to be in English and governed by English law. It was therefore entirely predictable and foreseeable from November 2014 that the parties might sue or be sued in London in relation to the Investment and dealings with the Acquired Shares.

Branch jurisdiction under Article 5(5) is dealt with obiter [120] ff. Cockerill J holds [138] that was is needed inter alia per CJEU flyLAL is ‘sufficient nexus’, sufficiently significant connection does not require involvement in the tortious acts [140]. This is supported, Cockerill J holds [148] by the fact that UBS London’s thoughts and actions will be relevant to the trial. There will be a need to investigate UBS London’s conduct and intentions both (i) at the time of the representations and advice given by UBS and (ii) late events and the loss resulting therefrom.

A good judgment to assist with the economic loss jigsaw.

Geert,

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The CJEU in Hrvatske Šume on contract or tort re claims of unjust enrichment. Confirmation that not all claims need to be either one or the other.

Update 17 January 2022 see here for a series of postings on the judgment.

The CJEU held this morning in  C‑242/20 Hrvatske Šume. Gilles Cuniberti already has a summary of the judgment here and I reported on the AG Opinion here. The Opinion was in essence confirmed.

Of first note is that the CJEU unlike the AG does address the Article 24(5) Brussels Ia issue of exclusive jurisdiction for claims in ‘enforcement’ of a judgment. It holds that an action for restitution based on unjust enrichment does not come within A24(5)’s scope for [32] an action the subject matter of which is a claim for restitution based on unjust enrichment is not intended to obtain a decision in proceedings relating to recourse to force, constraint or distrain on movable or immovable property in order to ensure the effective implementation of a judgment or authentic instrument. This is the case even if that unjust enrichment arises from the fact that enforcement has been annulled.

On the A7(1)-(2) issue the Court first of all and justifiably dismisses the suggestion made ia by the European Commission that A7(1) and (2) BIa dovetail: ie that necessarily a claim which is not a contractual one, must (and in subsidiary fashion) be on in delict per A7(2): [53]: forum delicti requires a harmful event (reference in support is made to Austro-Mechana),  which is simply absent in cases of unjust enrichment.

A claim in restitution of unjust enrichment may in fact be contractual [47] if there is a pre-existing relationship that is closely linked to the claim. An obvious example [48] is that of the applicant relying as the basis of its right to restitution. on unjust enrichment closely linked to a contractual obligation which he or she regards as invalid, and which has not been performed by the defendant, or which the applicant considers he or she itself has ‘over-performed’.

Geert.

EU Private International Law, 3rd ed. 2021, 2.419 ff.

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O’Loan and Scott v MIB and AIG. On the meaning of ‘the tort’ in Article 4(3) Rome II’s displacement rule.

O’Loan and Scott v MIB and AIG (Fintan O’Loan and Elisabeth Scott v Motor Insurance Bureau and AI Europe SA) involves the same Loi Badinter that was also the subject of Marshall v MIB. I was alerted to the case buy Ian Denham’s post. Judgment is as yet unreported and I am grateful to Ian for having sent me copy.

The contested claim is the one of Ms Scott v AIG. She was the front seat passenger of the hire car, insured by AIG and driven by Mr O’Loan, her partner, when the car was driven into by an uninsured, French registered car. Ms Scott therefore turns to the driver, her partner (in reality, the insurer of the hire car), to have her damage covered under the strict liability (no need to show fault) rule of the French Loi Badinter.

To get to French law however she needs to overcome Article 4(2) Rome II’s provision that in case victim and party claimed to be liable are habitually resident in the same country at the time the damage occurs, the laws of that country apply. A4(3) is the portal to that escape route:

(3) Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.

It was conceded by both parties [12] that the district judge cut quite a few corners on the A4(3) analysis and Platts J therefore started afresh. Winrow v Hemphill of course was referred to, as was Owen v Galgey (the conclusions of which I disagreed with).

The judge notes (as does the Handbook: para 4.39) that it is important to identify what is meant by “the tort/delict’ in A4(3) before considering whether that tort/delict is more closely connected with a country other than England. A4(3) holds that ‘the tort’ (not individual elements of the tort, such as the event and/or the damage and /or anything singular at all) needs to be ‘more closely connected’.

I disagree with the judge [23] that ‘the tort’ or ‘delict’ clearly refers to the event which caused the damage, or ‘the incident’ [24]. In the case of a tortious obligation ‘the tort’ arguably refers to the classic 3 elements of event, damage, and causal link between the two (all three here clearly referring to France). I do agree it does not refer to the cause of action which arises from the incident [24]. While linguistically speaking that may be caught be ‘the tort’ for it would be one of its consequences, it would also mean that remedies available, or not, for instance would play a role in determining lex causae. Where Rome II envisages such assessment, it says so explicitly: such as in Article 7’s environmental damage rule.

The judge’s reasons for opting for displacement are [30]

I therefore consider the connection with France to be manifestly closer than the connection with England: the collision was in France; it was between two vehicles registered in France; the damage was caused in France in that the initial injury was suffered in France. Further, the circumstances were such that the claim of first claimant is to be dealt with under French law.

That last element is in slight contradiction I find to the judge’s consideration signalled above, that an advance on (remedies available or not under the) lex causae, must not play a role. If that is the case for claimant seeking to overturn A4(2)’s presumption, arguably there must not be a role either for the lex causae of other claims involved in the case.

Of note is the judge’s emphasis on the vehicles both being registered in France. If that is an element, travellers of countries without strict liability rules, might have a strong incentive indeed to hire cars rather than drive their own when driving in EU Member States with strict liability rules such as the Loi Badinter.

Appeal dismissed, for the result is the same (French law applies) even if the route to it was quite different from the first judge.

I do not think the analysis on ‘the tort’ is quite there yet.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 4.5.2 (para 4.39 ff).

 

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The UK Supreme Court in Brownlie (II). With the tort jurisdictional gateway widened to consequential losses, forum non conveniens emerges as the default gatekeeper.

I have posted before on the Brownlie v Four Seasons litigation, please refer to the earlier post for context. The case revolves around whether courts should hear cases where the only damage sustained in their jurisdiction, is ‘indirect’ damage.

The litigation is not terribly good publicity for English civil procedure. The length of the proceedings resembles that of systems often referred to when in ordinary circumstances the English courts are much speedier. Moreover the outcome of the final Supreme Court judgment on 20 October (FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45 ) on the jurisdictional gateway for torts inevitably will lead to a carrousel of future litigation and long-winded jurisdictional argument.

Even though the court was seized much before Brexit day, the jurisdictional issues are not subject to Brussels Ia. (The applicable law is, however, determined by Rome II and that this is Egyptian law is not disputed). The Court of Appeal as I discussed in my earlier post, upheld ‘damage in the jurisdiction’ on the basis of a wider notion of ‘damage’ under residual English rules than under the EU rules. The UKSC has now agreed by a majority of four to one, confirming the obiter outcome of the earlier, ‘Brownlie I’ (in current judgment recalled at [45] ff) obiter views of the Court in a different composition.

Lord Lloyd-Jones reminds us [25] of the 3 requirements to meet the jurisdictional threshold. Claimant must show firstly ‘a good arguable case’ that the claims fall within one of the gateways in the civil procedure rules – CPR, introduced by Statute; further a serious issue to be tried on the merits (this is designed to keep out frivolous suits); and finally that England is the appropriate forum for trial and the court ought to exercise its discretion to permit service out of the jurisdiction that is the ‘forum non conveniens’ test.

The only issue under consideration before the SC was the first one, in particular, whether the case meets the conditions of CPR PD 6B paragraph 3.1(9):

“Service out of the jurisdiction where permission is required. 3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where -…

Claims in tort

(9)       A claim is made in tort where –

(a)        damage was sustained, or will be sustained, within the jurisdiction; or

(b)       damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.”

Candidates for Lady Brownlie’s claim satisfying the tort gateway in England, are [27] (a) a claim for damages for personal injury in her own right; (b) a claim for damages in her capacity as executrix of the estate of her late husband for wrongful death; and (c) a claim for damages for bereavement and loss of dependency in her capacity as her late husband’s widow.

Under EU jurisdictional rules, the only one of these three which in my view would have any chance of success under A7(2) BIa, is the latter. Despite CJEU Lazar (on the equivalent rule for applicable law under Rome II) I still do not see clear in the application of A7(2) to claims based on bereavement and loss of dependency. For these, I submit, Lloyd-Jones suggestion [73] fits even if the test, like in the EU, is based on direct effect only: ‘the event giving rise to the damage directly produced its harmful effects on Lady Brownlie in England and Wales.’

In essence the SC confirms the Court of Appeal’s insistence that the residual English rules must not ‘parrot’ the CJEU’s interpretation of ‘damage’ with its insistence on only direct damage satisfying the tort gateway – Pike in particular echoed the same feeling. Great emphasis is put on the perceived very different nature of the English private international law exercise as opposed to the EU, ‘Brussels’ regime. See for instance [55] ‘fundamental differences between the two systems would have made such an assimilation totally inappropriate’ – ditto, ex multi, [74].

This now Supreme Court confirmed ‘fundamental’ [74] difference between the regimes must and will, I submit, play a role in pending cases under Brussels Ia, such as those involving Articles 33-34 lis pendens provisions.

I do agree with Lloyd-Jones’ remark [50] that he is unconvinced of the suggested link between damage completing a cause of action (highly relevant at the applicable law stage] and the identification of an appropriate jurisdiction. Yet unlike him I would take that in a different direction. Not therefore in the direction of an in principle unlimited jurisdictional gateway for tort (Lord Leggatt, dissenting, at 171 remarks all English tourists travelling abroad will now have such gateway, without anyone suggesting ‘any principled basis for it’, and at [194] he suggests forum shopping will be encouraged eg by non-English tourists employing medical treatment in England as an anchor for jurisdiction), disciplined only by forum non conveniens (which was not under appeal here [79]; although Lord Lloyd-Jones does remark obiter at 80 that the judge had rejected forum non referring in particular referring to the fact that to a significant extent the claimant’s losses had been experienced in England ). Rather, I would revisit the original (for the EU at least) and contra legem (for A7(2) BIa like its predecessors does not mention damage) introduction of damage as a gateway in CJEU Bier.

The SC puts great trust in forum non conveniens as a gatekeeper: [79]

The discretionary test of forum non conveniens, well established in our law, is an appropriate and effective mechanism which can be trusted to prevent the acceptance of jurisdiction in situations where there is merely a casual or adventitious link between the claim and England. Where a claim passes through a qualifying gateway, there remains a burden on the claimant to persuade the court that England and Wales is the proper place in which to bring the claim. Unless that is established, permission to serve out of the jurisdiction will be refused (CPR rule 6.37(3)). In addition – and this is a point to which I attach particular importance – the forum non conveniens principle is not a mere general discretion, the application of which may vary according to the differing subjective views of different judges creating a danger of legal uncertainty. On the contrary, the principle applies a structured discretion, the details of which have been refined in the decided cases, in a readily predictable manner.

I have less trust in forum non as the predictable gatekeeper suggested by the majority. Consider Lord Leggatt’s dissenting view [200]:

In the absence of any prescribed decision procedure or ranking of factors, different judges assessing whether England and Wales is the appropriate forum will inevitably attach different degrees of weight to different factors and may reach differing conclusions on similar facts without either conclusion being susceptible to legal challenge. Not only is such inconsistency of outcome itself a source of injustice, but it also encourages satellite litigation and causes defendants who have no real connection with England to have to incur the difficulty and expense of instructing English lawyers to apply in England to contest the jurisdiction of the English courts. That gives a claimant a significant and unfair tactical advantage.

Moreover, as already highlighted by Joshua Folkard, cases of purely economic loss are likely to provoke much (and expensive) discussion. Lloyd-Jones L [43] himself notes: ‘Within the Brussels system, the distinction between direct and indirect damage is, however, sometimes elusive.’ He refers immediately to financial losses as the example with the least jurisdictional grip. He repeats this point ia [76], seeking to distinguish it from the more complex tort suffered by Lady Brownlie.

Cases of purely economic loss will continue to be litigated extensively at the jurisdictional level for current judgment does not offer any instruction on them. [76]: ‘the mere fact of any economic loss, however remote, felt by a claimant where he or she lives or, if a corporation, where it has its business seat would be an unsatisfactory basis for the exercise of jurisdiction. However, this is not such a case.’

An end to the jurisdictional tussle in current case therefore, nine years (8  years and 11 months) after the claim was issued. Yet continuing consequential uncertainty for many other pending and future claims.

Geert.

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Yet again on distinguishing contract from tort (and on enforcement jurisdiction). Saugmandsgaard Oe reigns in forum delicti and forum contractus in HRVATSKE ŠUME.

Saugmandsgaard Oe AG opined (no English version at the time of writing) last week in C‑242/20 HRVATSKE ŠUME on the classic conflict of laws issue of distinguishing contract from tort.. He, oddly perhaps, unless some technical reason for it escapes me, does not entertain the question on the scope of Article 24(5) Brussels Ia’s exclusive jurisdictional rule for ‘proceedings concerned with the enforcement of judgments’.

The Opinion is a Qualificationfest.

The case concerns actions for recovery of sums unduly paid, in other words, undue enrichment. This enrichment came about by a Croatian court having  earlier ordered Hrvatske Šume, debtor of  Futura, both of Croatia, to pay its debt to Futura directly to BP Europe SA, successor to Burmah Oil, both domiciled in Germany. Hrvatske appealed that order however that appeal did not halt the payment. Now that the appeal has turned out to be successful, Hrvatske want their money back yet so far Croatian courts have held that they do not have jurisdiction under Article 7(2) BIa (the case actually went under the the predecessor, Brussels I however there is no material difference).

As the referring court notes, there is no delicti commissi in the case of unjust enrichment: it is a non-contractual obligation in which no delict is committed. (This is the very reason Rome II includes a separate heading for unjust enrichment). One might suggest this would leave forum damni only under A7(2), however the AG correctly in my view re-emphasises the seminal statements in CJEU Kalfelis, that actions under A7(2) concern ‘all actions which seek to establish liability of a defendant  and which are not related to a ‘contract’ within the meaning of Article [7](1)’. Unjust enrichment not seeking to establish liability, A7(2) is not engaged. Along the way, note his discussion of linguistics and his seeking support in Rome II.

At 71 ff the AG distinguishes the wide interpretation of ‘establishing liability’ in CJEU Austro Mechana.

A clear implication of the Opinion is that it confirms a disjoint in BIa /Rome II: not all non-contractual obligations for which Rome II identifies a lex causae, are caught by A7(2) BIa’s forum delicti rule.

The AG also engages with the possibility of Croatia being forum contractus  (he kicks off his Opinion with this issue) and dismisses it, seeking support inter alia in CJEU Handte and also in Rome II specifically providing for an unjust enrichment heading. This part of the Opinion is more optimistically straightforward than one might have expected. Following flightright, Wikingerhof etc., A7(1) has been (unduly, in my view) stretched and it would be good to have the CJEU further clarifying same. (C-265/21, in which I have been instructed, might be just the case).

Geert.

EU Private International Law, 3rd ed. 2021, 2.419 ff.

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