England and Wales Court of Appeal (Civil Division) Decisions

Case No: QBCMI 1999/0963A3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
COMMERCIAL COURT (MR JUSTICE MOORE-BICK)
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 21 February 2000

"A person domiciled in a Contracting 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."
20. Read literally Article 6(1) is in very wide terms. However, as I will make clear later, it has been construed restrictively by the European Court.
21. The next article to which it is necessary to refer is Article 17. That Article provides that where parties, "one or more of whom is domiciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction".
22. The only other Articles to which it necessary to refer are Articles 21, 22 and 23. They are the contents of Section 8 of the Convention, which is headed "Lis Pendens - Related actions".
23. Article 21 gives precedence to the first court seised of proceedings when "proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States", subject to the jurisdiction of the first court being established.
24. Article 22 provides :
"Where related actions are brought in the courts of different Contracting States, any court other than the court first seised may, while the actions are pending at first instance, stay its proceedings.
A court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the law of that court permits the consolidation of related actions and the court first seised has jurisdiction over both actions.
For the purposes of this Article, actions are deemed to be related where they 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."
25. Article 23 provides that :
"Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court."
26. It is obvious from the language of the Articles to which I have referred, that the jurisdictional rules of the Convention place a premium on being the first court seised of the proceedings. This encourages parties to disputes to rush into proceedings. This is quite contrary to the culture which our Civil Procedure Rules are seeking to promote. However it is generally accepted that the jurisdictional rules of the Convention are not subject to a discretion in a national court to stay an action on the basis of the courts of some other Contracting State are the more appropriate forum. (See Dicey & Morris, The Conflict of Laws, 13^th Edition, Volume I 11/012.) The same position applies if a party commences proceedings precipitously and does not first seek to dispose of the proceedings without resorting to litigation.
The Decision of Moore-Bick J
27. The jurisdictional rules of the Convention do not prevent the English courts under their own procedural rules disposing summarily of proceedings which should not have been brought. This is important to the approach adopted by Moore-Bick J. He considered that the action brought by Dowty against BAA had not been "properly brought so as to entitle the court to exercise jurisdiction over Sabena under Article 61 of the Brussels Convention". He also considered that Dowty's claims against Sabena for a negative declaration could not be supported because Sabena may not bring proceedings if it decides that it can succeed more easily against Airbus. He did not consider that it would be appropriate for the court to entertain a claim for a negative declaration when it was accepted on behalf of Dowty that there was no pressing commercial need to have the issue resolved otherwise than in the normal way. He therefore granted Sabena's application.
Forum Shopping
28. In between the decision of Moore-Bick J and the hearing of this appeal, Sabena commenced proceedings in France claiming damages for breach of contract. Under Article 17 of the Convention, France is the only jurisdiction in which those proceedings could appropriately be brought. If Sabena is to remain a party to the English proceedings, then the consequence of Dowty's proceedings will be that Sabena will inevitably be involved in two sets of proceedings arising out of the incident.
29. In his judgment of 3 December 1999 Langley J, of the proceedings issued by Dowty, states that :
"This step was admittedly and indeed unashamedly taken because Dowty was apprehensive that the Article 145 procedure in Paris might result in Dowty being drawn into proceedings in Paris thus undermining the agreement of Dowty and Airbus that the appropriate forum for the resolution of disputes between them was in England."
30. Mr Shepherd relied on this as an indication that Dowty was forum shopping when it issued its proceedings. That this is the position is confirmed by letter written by Dowty's solicitors dated 30 April 1999. The commencement of proceedings to obtain a jurisdictional advantage can be categorised as forum shopping. The use of this term is designed to suggest that there is something objectionable in itself in a claimant starting proceedings for this collateral purpose. However in view of the primacy which the Convention gives to the jurisdiction which is first seised of proceedings, it is not proper to criticise a claimant, who is in a position to bring perfectly appropriate proceedings, for commencing those proceedings earlier than he would otherwise do, so as to obtain an advantage under the Convention. As Lord Justice Saville stated in Boss Group v Boss France S.A. [1996] 4 All ER 970 at 977E :
"The charge of forum shopping can only be made good by assuming that a party which takes advantage of the convention exceptions to the general rule of domicile is somehow doing something illegitimate; but that assumption cannot be sustained if in truth one of the exceptions is applicable".
31. The position is different if a defendant is added to the proceedings, despite the absence of any credible claim, solely to claim jurisdiction against a party who could otherwise not be joined in the proceedings. Such tactics are an abuse of the process of the court as was held by the Supreme Court of Ireland in Valerie Gannon v British and Irish Steam Packet Co. Ltd. and Others [1993] 2 IR 359.
32. Whether it be desirable that this should be the position or not, (and there are strong arguments that it is undesirable) there is good sense in the recommendations contained in Civil Jurisdiction and Judgments 2^nd Edition (by Briggs, edited by Rees p.210-2.13) that claimants are well advised not to delay proceedings.
The Outcome of the Appeal
33. Sir Sydney Kentridge QC submits on the appeal that there is a very considerable advantage in Sabena being joined in the claimant's proceedings because it will enable a consistent determination of all questions of responsibility and fault concerning the landing gear to be determined in those proceedings. From a case management point of view, there would be benefits if this could be achieved. However, in view of the proceedings, which have already been commenced by Sabena, it is now extremely doubtful whether this objective could be achieved. It is therefore preferable to focus on the alternative questions which arises on this appeal namely, whether Sabena is entitled to be removed from the proceedings as a matter of English procedural law concerning negative declarations or under the jurisdictional rules of the Brussels Convention.
A. Negative Declarations
34. Sir Sydney no doubt confines his reference to our procedural law since the jurisprudence of the European Courts suggests that in the application of the Convention the correct approach is to treat negative declarations, that is declarations that the claimant is under no liability, in exactly the same way as claims for positive relief are treated. This is not our domestic approach as I will seek to show hereafter. As to the position in relation to the Convention, the situation is accurately stated by Advocate General Tesauro in "the Tatry" Case C/406/92 [1994] ECR 1 5439. The Advocate General stated :
"23. It should also be borne in mind that the bringing of proceedings to obtain a negative finding, which is generally allowed under the various national procedural laws and is entirely legitimate in every respect, is an appropriate way of dealing with genuine needs on the part of the person who brings them. For example, he may have an interest, where the other party is temporizing, in securing a prompt judicial determination - if doubts exist or objections are raised - of the rights, obligations or responsibilities deriving from a given contractual relationship."
35. The approach reflected in the decision in the Tatry can be contrasted with the less sympathetic consideration which is sometimes given to the use of negative declarations in transnational litigation by English courts. The situation as it existed in 1995 was commented upon by Dr Bell at the time he wrote his article "The Negative Declaration in Transnational Litigation" (1995) 111 LQR 674. He concluded that the form of relief sought should not affect the assessment of the jurisdictional propriety of the chosen forum. He adds at p.695 :
"As far as the impact of this form of relief on the interests of comity is concerned, it has been argued that the problems created by negative declarations are the problems of concurrent litigation in general. If it is the case that the right to initiate litigation should not be the exclusive preserve of those parties seeking to vindicate positive rights, then the problem of multiple litigation must be addressed in a way that does not simply entail the emasculation of a long established and potentially useful form of action. There is no valid reason to penalise one prospective party and not the other in relation to matters which may be as strategically critical in a transnational dispute as the timing and venue for litigation."
36. There is force in these comments. I can see no valid reason for taking an adverse view of negative declaratory relief. This is whether it is claimed in relation to transnational disputes or domestic litigation. In this respect I would treat with reservation the observations of Kerr LJ in First National Bank of Boston v Union Bank of Switzerland [1990] 1 Lloyds Rep. 32 at 39 and in the Volvox Hollandia [1998] 2 Lloyds Rep. 361 at 391. The use of negative declarations domestically has expanded over recent years. In the appropriate cases their use can be valuable and constructive.
37. Mr Shepherd on behalf of Sabena strongly refutes that this approach is permissible on the authorities. He submits that in this case the court is bound to follow the approach adopted eighty years ago in Re Clay [1919] 1 Ch. 66. He draws attention to the fact that it was followed in Midland Bank Plc v Laker Airways Limited [1986] QB 689 by Lawton LJ with whom Dillon and Neill LJJ agreed (page 700H-701A). Lawton LJ stated :
"As the liquidator has never threatened to take proceedings against either bank in the English courts, on the authority of in Re Clay there is no jurisdiction in the court to make the declarations asked for." (emphasis added)
38. This approach was applied by Timothy Walker J in New Hampshire Insurance Company v Aerospace Finance Limited & Ors [1998] 2 Lloyds Rep. 538.
39. As against these authorities there are the numerous cases where without objection negative declarations have been granted. There are also the judgments of Lord Denning MR in this court and Lord Wilberforce in the House of Lords in Camilla Cotton Oil Company v Granadex S.A. [1975] 1 Lloyds Rep. 470 and [1976] 2 Lloyds Rep. 10. Lord Denning at p.474-5 said :
"It has been said that a declaration as to non-liability ought very rarely to be made, see Dyson v Attorney General [1911] 1 KB 410 and Guaranty Trust Company of New York v Hannay & Company [1915] 2 KB 536. And Re Clay, [1919] 1 Ch. 61, is sometimes cited for the proposition that it cannot be made. But it is nothing of the kind. In modern times, I think that a declaration of non-liability can be made whenever it will serve a useful purpose. I would not limit it in any way".

40. In the House of Lords at p.14, Lord Wilberforce stated the position in his own words but the effect was very much the same. He said :

"The declaration claimed is of a negative character and as Lord Sterndale himself had said :
"....a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made."
"Hardly ever" is not the same as "never" but the words warn us that we must apply some careful scrutiny. So I inquire whether to grant such a negative declaration would be useful.
The liability which the English Court is asked to negative is any possible liability of the respondents on the basis of agency -"
41. Lord Wilberforce and Lord Denning differed in the circumstances of that case as to whether the declaration would serve a useful purpose. However, if it would, that it would then be appropriate to grant a declaration was agreed. The approach is pragmatic. It is not a matter of jurisdiction. It is a matter of discretion. The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose. However where a negative declaration would help to ensure that the aims of justice are achieved the courts should not be reluctant to grant such declarations. They can and do assist in achieving justice. For example where a patient is not in a position to consent to medical treatment declarations have an important role to play. Without the use of negative declarations, recent extensions in the use of declaratory relief, including the beneficial intervention of the courts in cases concerning mentally incapacitated people would not have been possible. As Sir Thomas Bingham MR said in Re S (Hospital Patient: Court's Jurisdiction) [1996] FAM 1, [1995] 3 All ER 290 (at p.303) "any statutory rule, unless framed in terms so wide as to the give the court an almost unlimited discretion, would be bound to impose an element of inflexibility which would in my view be wholly undesirable". He considered that the different situation he was there considering was "pre-eminently an area in which the common law should respond to social needs". So in my judgment the development of the use of declaratory relief in relation to commercial disputes should not be constrained by artificial limits wrongly related to jurisdiction. It should instead be kept within proper bounds by the exercise of the courts' discretion.
42. While negative declarations can perform a positive role, they are an unusual remedy in so far as they reverse the more usual roles of the parties. The natural defendant becomes the claimant and vice versa. This can result in procedural complications and possible injustice to an unwilling `defendant'. This in itself justifies caution in extending the circumstances where negative declarations are granted, but, subject to the exercise of appropriate circumspection, there should be no reluctance to there being granted when it is useful to do so.
B. Should Sabena have been made a party to the English Proceedings?
43. It would be wrong to conclude that just because a negative declaration would serve some useful purpose that means that it is appropriate for a claim to be made so that it should be granted. There may be other reasons why to claim a negative declaration amounts to a misuse of the courts' procedure. In this case it is submitted there is no justification for Sabena being joined as a party to the proceedings. Whether a party should be joined in proceedings is always a matter for the discretion of a court. That discretion is now subject to Part I of the Civil Procedure Rules and in determining whether a joinder of party is appropriate a court takes into account its overriding obligation "to deal with cases justly". It is the joinder of Sabena, which has caused me more concern then the fact that Dowty are seeking a negative declaration.
44. I turn to consider whether as a matter of domestic English practice, the joinder of Sabena as a party by Dowty is consistent with the requirement to deal with cases justly. In considering this issue I do not draw any adverse inference from the fact that Dowty's primary motive for joining Sabena as a party to the proceedings and for seeking a negative declaration against Sabena was a desire to ensure that the English courts had jurisdiction to determine between all relevant parties the extent, if any, of the liability of Dowty for the loss caused to Sabena and the cost of rectifying the design faults generally. In doing so, I also reject the contention of Mr Shepherd that as a matter of principle negative declarations should not be granted (or perhaps only in wholly exceptional cases granted) in respect of possible tortious liability. I would not quarrel, however, with the judge's statement that :
"It may well be that few such cases will lend themselves to relief of that kind, especially where the injured party has a choice of which defendants to sue".
45. As I have already indicated, Sir Sydney Kentridge's primary justification for joining Sabena was that it would achieve a consistent determination of all questions of responsibility and fault concerning the landing gear in one set of proceedings. This is now almost certainly unobtainable because Sabena has commenced proceedings in France against Airbus and France under the Convention has exclusive jurisdiction in relation to those proceedings (Article 17). Against this now flawed justification for Sabena being joined, there has to be placed the substantial arguments against Sabena being joined. These arguments are as follows :
1. Sabena's primary claim must always have been against Airbus. Airbus was the party with which Sabena contracted. Any litigation involving Sabena's contractual rights against Airbus was, for the reason already indicated, inevitably going to be based in France.
2. Requiring Sabena to defend proceedings in England would mean that Sabena was going to be subjected to the substantial disadvantage of having to litigate in a second jurisdiction, namely England, against its wishes at the same time as it was litigating in France.
3. Although Sabena has every reason to reserve its position as to whether it intends to make a claim against Dowty, it is doubtful if it will ever have cause to do so. The real dispute is as to who was responsible for the faulty design of the landing gear. This is now primarily a dispute between Dowty, Airbus and possibly BAA.
4. It is not at this stage suggested, because, for example, of a term in the contract between Airbus and Sabena, that Sabena will be unable to recover the same compensation from Airbus as it could from Dowty. From Sabena's point of view it could well be the case that there is no advantage in it being involved in the English proceedings
5. If Sabena made a claim against Dowty (and I do not regard its involvement of Dowty in the Article 145 procedure as being a claim) there would then be a real justification for involving Sabena in the English proceedings. There would then be a conflict of jurisdiction. The conflict would be between the French proceedings and the English proceedings. At this stage, it is not possible to say whether in those circumstances it would be preferable from a case management point of view for the proceedings to be disposed of as part of the French proceedings or as part of the English proceedings. However, for reasons I will explain later there would be a real prospect that Sabena could then be justly joined in the English proceedings applying the provisions of the Convention. If there is to be joinder of Sabena, the right time to do this in this case is when Sabena has reached a decision on whether to claim or at least not before it is in such a position.
46. Looking at the situation as a whole, the conclusion which I have come to is that, as an issue of domestic law alone, the joinder of Sabena at this stage is not justified and is inconsistent with resolving the English proceedings justly. Sabena should therefore unless this would be inconsistent with the policy of the Convention be dismissed from the proceedings. This would be a procedural decision taken in the light of the position as it now is and therefore a decision, which could be reconsidered by the English courts if the position should change in consequence of Sabena making a claim or being in a position to make up its mind as to whether to claim directly against Dowty.
C. Jurisdiction Under The Convention
47. This is not however a situation where the question of the joinder of Sabena can be considered in isolation from the question of jurisdiction. Jurisdiction is governed by the Convention and if the Convention required Sabena to be sued now within this jurisdiction or if this was consistent with the policy of the Convention, then this would be a compelling circumstance against exercising discretion in a way, which I have indicated. In fact there is nothing in the Convention which requires Dowty to bring proceedings in England and, if proceedings are brought, England does not have exclusive jurisdiction.
48. The primary jurisdiction for proceedings against Sabena is, under Article 2, Belgium. Under Article 5.3, Sabena theoretically could seek to bring proceedings against Dowty in Belgium as being the place "where the harmful event occurred". Bearing in mind the proceedings, which have already been commenced, I regard the risk of this happening as being remote. Even if this did happen I would expect the Belgian courts to decline jurisdiction in favour of this country or France. As to this country this would be because this is also a jurisdiction in which proceedings could be brought under Article 5.3. The European Court of Justice decided in Handelskwekerij G.J. Bier B.V. v Mines de Potasse d'Alsace S.A. [1976] 3 ECR 1735 that the defendant under Article 5.3 may be sued at the option of the claimant, either in the courts for the place where the damage occurred or in the courts for the place of the event which gave rise to and is at the origin of that damage. In proceedings in tort for faulty design by Sabena in addition to Belgium having jurisdiction as the place of the event, England would also have jurisdiction as the place, which was the origin of the damage. England would also be the primary country to have jurisdiction in proceedings against Dowty under Article 2.
49. Mr Shepherd vigorously contested the right of Dowty to justify its joinder of Sabena as a defendant to the English proceedings by relying on Article 6.1. His first ground for doing so was because he submitted that BAA were an unnecessary defendant to the English proceedings. Moore-Bick J was sympathetic to this argument. Sir Sydney Kentridge on the other hand argued that any responsible counsel would in addition to making claims against Airbus also bring proceedings against BAA both in tort and under the contract. Neither Airbus nor BAA have suggested that there is any impropriety in BAA having been joined as a defendant and having regard to the nature of the dispute between BAA and Dowty, I reject Mr Shepherd's contention that BAA was not a proper defendant to Dowty's proceedings. Irrespective of whether there is a contractual liability on Airbus, if BAA negligently failed to provide the design information to which Dowty was entitled then this in itself would make it legitimate for BAA to be a defendant in proceedings by Dowty alleging BAA had been negligent. If BAA is a legitimate defendant, then Dowty can contend with regard to Sabena that it is "one of a number of defendants in the courts of the place where any one of them is domiciled" in accordance with Article 6.1.
50. However, in order to rely on Article 6.1, Dowty has to do more than comply with the literal terms of Article 6. In Kalfelis v Schroder [1988] 5 ECR 5565 the European Court of Justice held that Article 6 must be read with Article 22 of the Convention so that Article 6.1 only applies "where the actions brought against the various defendants are related when the proceedings are instituted, that is to say where it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings". (Para 12 at p.5584) At this stage, when Sabena has made no claim against Dowty, Dowty cannot establish that the joinder of Sabena meets this additional requirement of Article 6.1. It is not at present expedient that Sabena should be joined for the reasons already given. However, if a claim were to be made by Sabena against Dowty, Dowty would be in a different position. Dowty would be entitled to contend that the additional requirement had been fulfilled. There would then be a risk of irreconcilable judgments. (A claim against BAA by Dowty in contract would not be sufficient for this purpose.)
51. This examination of the position under the Convention shows that treating the joinder of Sabena at this stage as being improper, is not contrary to the jurisdictional regime established by the Convention. On the facts as they are now, Moore-Bick J came to the right decision although I do not agree with the whole of his reasoning.
52. I would dismiss this appeal.
LADY JUSTICE HALE :
I agree.
LORD MUSTILL :
I also agree.
Order: Appeal Dismissed. Costs agreed. Interim payment to be made. Leave to appeal to the House of Lords refused. Order to lie in the office pending petition to the House of Lords and if granted the appeal. Liberty to apply. Order does not form part of the approved judgment.