England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/05/2015

Mr Justice Jay:

Introduction

1. By their Application Notice dated 30^th September 2014, the Third, Fourth and Fifth Defendants seek a declaration that the Court does not have jurisdiction over them in relation to the claim brought by the Claimant for damages for personal injuries following an accident which occurred in Belgium on 10^th March 2011.
2. The Claimant is a British citizen who had been working on a railway construction project in Antwerp since May 2010. He contends that his employer was the First Defendant, a company domiciled in England and Wales. The potential liability of the Third Defendant is no longer in issue, because the Claimant accepts that it is not a separate legal person under Belgian law. The focus of this application is the position of the Fourth and Fifth Defendants, being the Main Contractors responsible for the project and comprising a joint venture under Belgian law. These defendants are domiciled in Belgium, and it is convenient to refer to them in this judgment as "the Belgian Defendants".
3. It is the contention of the Belgian Defendants that this Court lacks jurisdiction over this claim, for the following reasons:

i) Article 6(1) of Regulation 44/2001 ("the Brussels Regulation") does not apply to the instant case, because there is no risk of irreconcilable judgments within its scope. It follows that the general rule provided by Article 2 applies, and that the Court is not properly seized of this claim.

ii) The claim relates to at least one "individual contract of employment" within the meaning of Article 18.1 of the Brussels Regulation. It follows that Article 19 applies, and that the claim against the Belgian Defendants could only have been brought in Belgium.

iii) The claim is in any event an impermissible attempt to circumvent Article 2 of the Brussels Convention, and should be precluded as an abuse of process.

4. The first and second issues raise questions of EU law which are not altogether straightforward. Their potential complexities emerged more strongly as the oral argument unfolded. Neither party sought to argue that I should be referring preliminary issues for the determination of the ECJ, and I am content to decide these questions myself.

The Claimant's Case

5. The Claimant contends that he suffered a severe crushing injury to his right foot when it was run over by a Bobcat machine being operated at the project by an employee of the Second Defendant, a French construction company. The machine was, it is said, owned and supplied by the Joint Venture. The immediate cause of the accident was the Claimant stumbling or tripping on debris that had been left on a ramp, leading to his falling to the ground. Notwithstanding the Claimant's warnings, the driver of the machine proceeded to move it in a forward direction, and the Claimant's right foot became trapped.
6. It is the Claimant's case that the Bobcat machine was defective in three respects. First, the Perspex front window of the machine was badly scratched so that the driver's visibility was impaired. The window had to be removed, but it was then replaced on the instructions of employees of the First Defendant and of the Belgian Defendants. Secondly, the machine suffered from an inherent design flaw in that the view of the driver was restricted by its 'arm'. Thirdly, the design of the machine was such that there was a significant 'blind spot'.
7. The claim against the First Defendant is brought in breach of statutory duty and negligence. The Claimant, in line with standard practice, has not sought to formulate his claim in contract, on the basis that his employer owed him an implied duty to provide and maintain a safe system of work. It is true that paragraph 1(d) of the Particulars of Claim avers the existence of a contract with the First Defendant, but this should be understood as providing the springboard or backdrop for the tortious duty. As Lord Hoffmann explained in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, no doubt drawing on the locus classicus of Wilsons & Clyde Coal Company Ltd v English [1938] AC 57:

"The liability of an employer to his employees for negligence, either direct or vicarious, is not a separate tort with its own rules. It is an aspect of the law of negligence. The relationship of employer and employee establishes the employee as a person to whom the employer owes a duty of care."

8. Thus, the duty of care arises because the parties are in an antecedent, proximate relationship, but the claim is not formulated as an incident of that relationship. A similar analysis applies to the claims for breach of the duties owed under regulations made pursuant to the Health and Safety at Work etc Act 1974: the existence of an employment relationship is the platform for the imposition of the duty (see, for example, regulation 3 of the Provision and Use of Work Equipment Regulations 1998 – although a relevant duty may arise in the absence of a contract of employment).
9. The claim against the Belgian Defendants is less familiar because it is based on relevant provisions of the Belgian Civil Code, and Belgian statute law. Analysing paragraph 8 of the Particulars of Claim, the first formulation of claim is that, if contrary to the Claimant's primary contention the driver of the Bobcat machine was in fact a servant or agent of the Belgian Defendants and not the Second Defendant, then the former would be liable under the vicarious liability provisions of the Code Civile, in particular Article 1384. The second formulation is that the machine was defective and inadequately maintained, and that the Claimant's workplace was unsafe. In this context reliance is placed on the general tortious and vicarious liability provisions of the Code Civile, in particular Articles 1382 and 1384. Thirdly, it is said that the Belgian Defendants are in breach of Article 5 of the Act of 4^th August 1996 on well-being of workers in the performance of their work.
10. In the light of the submissions advanced by Mr Oliver Caplin for the Belgian Defendants, it is necessary to examine (i) the evidential basis for the claim against the First Defendant, in particular the assertion that the evidence fails to establish that the Claimant remained in its employment when the accident occurred, and (ii) whether the claims outlined in paragraph 9 above presuppose, or predicate, the existence of a contractual relationship between the Claimant and the Belgian Defendants. This examination provides the setting for the parties' submissions on the Brussels Regulation.
11. As for point (i), the parties are agreed that this is not the occasion to try the merits of the Claimant's case and that I should be applying a threshold test for determining the existence of a tenable case against the First Defendant as a company domiciled in England and Wales, but the parties are not quite agreed as to the precise formulation of that test. In my judgment, the correct formulation is that of a "good arguable case" flexibly applied to the issue under scrutiny: see, for example, Canada Trust Co v Stolenzberg (No 2) [1998] 1 WLR 547, at 555 and 558E; Masri v Consolidated Contractors International (UK) Ltd [2006] 1 WLR 830, at paragraph 14; and Et Plus SA v Welter [2006] 1 Ll. Rep 251, at paragraph 59 (iii). There was some discussion between Counsel as to whether Lord Hoffmann's formulation in Bols Distilleries BV v Superior Yacht Services Ltd [2007] 1 WLR 12 imposed a more onerous standard, namely "what the Claimant had to show was that it had a much better argument than the Defendants" [at paragraph 28]. Whereas I understand the force of the point made by Mr Richard Wilkinson for the Claimant that the issue in Bols was the scope of the Article 23 exception, I note that in paragraph 15 of Masri Sir Anthony Clarke MR endorsed in a broader context the "much better argument on the material available" formulation, which itself was derived from Canada Trust. In essence, this is another way of expressing the "good arguable case" criterion. In my view, both formulations must continue to be applied in a flexible manner, and in that regard the Claimant's burden of persuasion must be lower in the context of the overall merits of his case than in establishing the "jurisdictional facts" for the purposes of Article 6, in particular the existence of a contractual relationship between him and an entity domiciled in England and Wales.
12. The Claimant has been able to provide copies of contracts of employment with the First Defendant, covering the period 26^th May to 31^st May 2010, and 8^th June 2010 to 30^th June 2010. Pursuant to these contracts, the Claimant was "seconded to work under the direction and control" of the Joint Venture. The Claimant has also disclosed copies of his pay documentation from his employment with the First Defendant, including a P45 confirming the eventual termination of his employment in February 2012. Reliance is also placed on a Limosa Declaration Certificate which lends further support to the contention that the Claimant's employer remained the First Defendant. The Claimant's witness statement dated 10^th January 2015 states that he worked at all material times for the First Defendant and not for any other entity.
13. Mr Caplin's strongest point is that the Claimant has not been able to produce a copy of an employment contract between him and the First Defendant covering the date of his accident. On the other hand, I consider that all the evidence points to the Claimant continuing to be employed by the First Defendant upon expiry of the second contract of employment in June 2010, assuming – against the Claimant – that no further contract or contracts were provided. The bundle includes a copy of a subcontract between the Joint Venture and the Global Tunnelling Experts BV, a Dutch company no doubt related to the First Defendant, but I have seen no evidence that this entity became the Claimant's employer. It may well have been responsible in practice for some of the operations on site in which the Claimant participated, but that is a separate matter. Overall, and applying the "good arguable case" test in its formulation most favourable to the Belgian Defendants, the Claimant has a much better argument than the Belgian Defendants that he was employed at all material times by a company domiciled in England and Wales.
14. The factual and legal merits of the Claimant's case against the First Defendants cannot be accurately assessed at this stage, and there is no requirement that they should be. This is a fairly typical personal injuries' case where much will depend on the credibility and reliability of the witness evidence, assessed against the legal background of a non-delegable duty of care. On the basis of the available evidence, I consider that there must be a real or serious issue to be tried (see, for example, paragraph 59(iii) of the Judgment of Gross J in Et Plus), and I did not understand Mr Caplin to be submitting to the contrary.
15. The claim against the Belgian Defendants raises somewhat different questions. Mr Caplin submitted that the claim was necessarily predicated on the existence of an implied contract between the Claimant and the Belgian Defendants because (i) the contracts of employment relied on by the Claimant stated in terms that he was seconded to the Joint Venture (and, if the Claimant remained employed by the First Defendant after June 2010, the secondment must have continued), and (ii) aspects of the pleaded case depend on the existence of a contract of employment.
16. Mr Caplin analysed paragraph 8 of the Particulars of Claim closely, and sought to persuade me that the relevant averments of breach of duty necessarily presupposed the existence of a contractual relationship. However, it is noteworthy that Mr Wilkinson's pleading does not rely on his client's secondment to the Belgian Defendants created by Clause 1b of the contract of employment. Instead, the principal claim (see paragraph 8(b) of the Particulars of Claim) is advanced in tort, under the relevant provisions of the Belgian Code Civile. Particulars (v) – (vii) may read like standard particulars of negligence in a case of employer's liability (c.f. paragraph 6(i) and (j) of the Particulars of Claim, directed against the First Defendant), but similar obligations would be owed by the Main Contactors to those lawfully and foreseeably working on the project, albeit in a contractual nexus with others.
17. Mr Caplin also submitted that, as a matter of law, a contractual relationship between the Claimant and the Belgian Defendants was imposed by Clause 1b of the contract of employment, and that the effects of this relationship could not be circumvented by guileful pleading. I invited the parties to undertake further research on this issue, and after the short adjournment I was provided with a number of authorities including Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 3, Interlink Express Parcels Ltd v Night Truckers Ltd [2001] EWCA Civ 360, and Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510. I accept the possibility that the Belgian Defendants might have exercised sufficient control over the Claimant's work as to constitute them his joint employers for present purposes, but in my judgment the preponderance of evidence and submission counts against that conclusion. I agree with Mr Wilkinson that the Belgian Defendants do not advance a positive case in that regard, and in any event the level of evidential inquiry undertaken by those advising the Belgian Defendants fails to establish that the requisite degree of control existed. No witness statement to that effect has been filed. In short, not merely does the existence of Global Tunnelling Experts BV complicate the position, I cannot properly conclude on the available evidence, applying the appropriate standard, that control of the Claimant's work, as opposed to responsibility for the Bobcat machine, resided with the Belgian Defendants.
18. Mr Caplin advanced a much stronger argument on paragraph 8(c) of the Particulars of Claim, submitting that the Claimant's reliance on the Act of 4^th August 1996 did presuppose a contractual relationship between him and the Belgian Defendants. Mr Caplin examined Article 2 of the Belgian statute, and submitted that its effect, read in conjunction with Article 5, was that the Claimant could only succeed under the latter provision if some sort of contract existed – the fact that none has been pleaded is irrelevant. Unfortunately, the original French text of the 1996 Act is not available, and I have difficulty in construing Article 2§1(1)(a) in particular. Furthermore, the parties have not placed before me the Council's Framework Directive 89/391/EEC which the Belgian statute was intended to transpose. On the one hand, it is arguable that Article 2 includes those with whom the employer is not in contractual nexus; on the other, some of the provisions of Article 5 (in particular, (j)-(l)) do appear to presuppose the existence of a standard employer/employee relationship. On the available material, it is difficult to reach any satisfactory conclusion on this issue: where that leads me will require careful consideration when I come to examine Mr Caplin's second submission.

Article 6 of the Brussels Regulation: the Risk of Irreconcilable Judgments

19. The general rule under Article 2 of the Brussels Regulation is that persons domiciled in a Member State must be sued in the courts of that Member State. Article 6 constitutes an exception to that general rule, and must be strictly interpreted by the national courts: see Kalfelis v Schroder (Case 189/87), paragraphs 8 and 12 (applying the Brussels Convention, which was in almost identical terms).
20. The Claimant is unable to invoke to his advantage the first of the "special jurisdiction" provisions which is found in Article 5 of the Brussels Regulation, but he places reliance on Article 6, which provides:

"A person domiciled in a Member 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, provided the claims 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;…"

21. It is convenient to consider the jurisprudence emanating from the European Court of Justice on Article 6 before addressing domestic decisions.
22. In Réunion Européenne SA v Spliethoff's Bevrachtingskantoor BV [Case C-51/97, Judgment 27^th October 1998], the ECJ was primarily concerned with the construction and application of Article 5 of the Brussels Regulation, in particular the relationship between the claim in contract (Article 5.1) and in tort (Article 5.3). In the circumstances which arose, the ECJ's observations on Article 6 were not necessary to its decision. The ECJ's reasoning on the Article 6 issue was brief (see paragraph 50):

"It follows that two claims in one action for compensation, directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict cannot be regarded as connected".

Although the facts giving rise to the separate liabilities were the same, that the causes of action differed (as they do in the instant case) meant that the special rule laid down in Article 6 did not apply. Plainly, if paragraph 50 of Réunion Européenne accurately represented the law for present purposes, the Claimant would be in difficulty.

23. In Roche Nederland BV v Primus [Case C-539/03, Judgment 13^th July 2006], the issue was whether Article 6 of the Brussels Convention applied to European patent infringement proceedings involving a number of companies established in various Member States in respect of acts committed there, where those companies – belonging to the same group – acted pursuant to a tortious conspiracy between them. Although there were common rules laid down in the Munich Convention on the grant of European Patents, such patents continued to be governed by the national legislation of each of the Contracting States which had granted them. Advocate General Léger did not consider that Article 6 applied, taking a very narrow view of the concept of "irreconcilable judgments":

"…however divergent such decisions may be, they are not necessarily mutually irreconcilable or incompatible. First, as the defendants concerned by each of these decisions are different, the decisions may be enforced separately and simultaneously for each of them. Secondly, the legal consequences of these decisions are not mutually exclusive, because in this scenario each of the courts seized rules only on the alleged infringements of the rights of the patent holder in each of the Contracting States over which those courts have jurisdiction, so that the legal consequences of each of these decisions cover a different territory" (paragraph 108)

At paragraph 113 of his Opinion, the Advocate General explained the circumstances in which Article 6 would apply:

"…For there to be a conflict between decisions, I believe that such a divergence must arise in the context of the same situation of law and fact. It is only in that case that one can imagine there to be a conflict between decisions, since courts have reached diverging or even diametrically opposed judgments on the basis of the same situation of law and fact."

24. The ECJ agreed with paragraph 113 of the Advocate General's Opinion, and concluded:

"27. However, in the situation referred to by the national court in its first question referred for a preliminary ruling, that is in the case of European patent infringement proceedings involving a number of companies established in various Contracting States in respect of acts committed in one or more of those States, the existence of the same situation of fact cannot be inferred, since the defendants are different and the infringements they are accused of, committed in different Contracting States, are not the same.


28. Furthermore, although the Munich Convention lays down common rules … such a patent continues to be governed by the national law of each of the Contracting States for which it has been granted.

…


31. It follows that … any divergences between the decisions given by the courts concerned would not arise in the context of the same legal situation.


…


33. In these circumstances, even if the broadest interpretation of 'irreconcilable' judgments, in the sense of contradictory, were accepted as the criterion for the existence of the connection required for the application of Article 6(1) of the Brussels Convention, it is clear that such a connection could not be established between actions for infringements of the same European patent where each action was brought against a company established in a different Contracting State in respect of acts which it had committed in that State.


34. That finding is not called into question even in the situation referred to by the national court in its second question, that is where defendant companies, which belong to the same group, have acted in an identical or similar manner in accordance with a common policy elaborated by one of them, so that the factual situation would be the same.


35. The fact remains that the legal situation would not be the same … and therefore there would be no risk, even in such a situation, of contradictory decisions."

25. The ECJ does not operate a system of precedent, but the scope of Roche Nederland needs properly to be understood. Given the way in which the second question to it was expressed, it is not wholly clear why the Court thought it necessary at paragraph 27 of its Judgment to proceed on the footing that it could not be inferred that the factual situation underpinning the claims was the same. At paragraph 34 the ECJ appears to proceed on the alternative basis that the factual situation was (or, at least, should be presupposed to be) the same. That aside, and assuming that the Court was considering two different potential scenarios, it does appear that it was holding that Article 6(1) cannot be satisfied if either the factual situation or the legal situation are not the same. This extremely restrictive approach is consistent with Réunion Européenne (see paragraph 22 above).
26. In Freeport plc v Arnoldsson [2008] QB 634, claims arising out of the same factual matrix were brought in Sweden against two linked companies, founded on different causes of action. At paragraph 40 of its Judgment, the ECJ noted what it had pointed out in Roche Nederland about the need for a "context of the same situation of law and fact". However, paragraph 41 of its Judgment appears to represent a slight dilution of this principle:

"It is for the national court to assess whether there is a connection between the different claims brought before it, that is to say, a risk of irreconcilable judgments if those claims were determined separately and, in that regard, to take account of all the necessary factors in the case file, which may, if appropriate yet without its being necessary for the assessment, lead it to take into consideration the legal bases of the actions brought before that court."

27. At paragraph 47 of its Judgment, the ECJ made explicit that the existence of different legal bases of claim did not necessarily preclude the application of Article 6. In reaching this conclusion, the ECJ did not appear to believe that it was revising Roche Nederland, although it did accept that Réunion Européenne should be understood as a case about Article 5(3) of the Brussels Convention, and not Article 6(1) of the Brussels Regulation, because the action was brought before a court in a Member State where none of the defendants to the main proceedings was domiciled (see paragraph 44).
28. The ECJ in Freeport did not determine whether a sufficient factual nexus existed between the claims against the two companies, because this was a matter for the national court to assess, having regard to "all the necessary factors in the court file".
29. In Painer v Standard Verlags Gmbh [Case C-145/10, Judgment 1^st December 2011], the ECJ was concerned with breach of copyright claims against a number of defendants. The infringements alleged were "substantially identical", but it was unclear whether a tortious conspiracy was alleged to exist between them. It was not a precondition to the application of Article 6(1) that the claims have the same legal basis, but the ECJ's interpretation of paragraph 47 of Freeport was that this was subject to the proviso "that it was foreseeable by the defendants that they might be sued in the Member State where at least one of them is domiciled" (see paragraph 81 of the ECJ's Judgment in Painer). Furthermore:

"82. That reasoning is stronger if, as in the main proceedings, the national laws on which the actions against the various defendants are based are, in the referring court's view, substantially identical.


83. It is, in addition, for the referring court to assess, in the light of all the elements of the case, whether there is a connection between the different claims brought before it, that is to say a risk of irreconcilable judgments if those claims were determined separately. For that purpose, the fact that defendants against whom a copyright holder alleges substantially identical infringements of his copyright did or did not act independently may be relevant."

30. Finally in the line of ECJ decisions comes Solvay SA v Honeywell Fluorine Products Europe BV and another [Case C-166/10, Judgment 12^th July 2012], which appears to have borne close factual similarities with Roche Nederland, save that two of the defendant companies were domiciled in Belgium, and the third in the Netherlands. At paragraphs 25 and 26 of its Judgment, the ECJ summarised the conclusions of the Court in Roche Nederland, but at paragraph 27 appeared to envisage the factual scenario presently under consideration as being different:

"It follows from the specific features of a case such as that in the main proceedings that potential divergences in the outcome of the proceedings are likely to arise in the same situation of fact and law, so that it is possible that they will culminate in irreconcilable judgments resulting from separate proceedings."

This was because, as was made clear at paragraphs 28 and 29 of the Judgment, the infringements at issue were alleged to have occurred in relation to the same products in the same Member States. Thus, even applying the more stringent approach to Article 6(1) disclosed in Roche Nederland, the proceedings arose "in the same situation of fact and law".

31. Turning now to the domestic authorities, the first I propose to address is the decision of the Court of Appeal in Casio Computer Co Ltd v Sayo and Others [2001] EWCA Civ 661. In that case, a tortious conspiracy was alleged against a number of defendants, and a breach of constructive trust against one alone. The main issue in the appeal concerned the ambit of Article 5(3) of the Brussels Convention (the Brussels Regulation was yet to come into force), but an issue also arose on Article 6(1). The Court of Appeal rejected the Appellant's submission based on Réeunion Européenne that the existence of different causes of action precluded reliance on Article 6(1) (see paragraph 32 of the Judgment of Tuckey LJ). Further, the Court of Appeal considered that the decision of the House of Lords in Sarrio v Kuwait Investment Authority [1999] 1 AC 32 was relevant to the Article 6(1) question, and said this:

"This judgment [sc. Sarrio] makes it clear that the court is not merely concerned with the risk of conflicting decisions giving rise to mutually exclusive legal consequences. It also makes it clear that the court will be concerned with conflicting decisions on questions of fact as well as law…" (paragraph 35)

and later:

"It seems to me that the judge's approach in this case was entirely consistent with the approach which I have considered above. He did not … simply identify a common question of fact or law and say that Article 6(1) applied. He considered the importance of what he described as the 'upstream facts on legal issues' in terms of the end result and decided that if different courts reached different conclusions as to the propriety of Tsuru's conduct in particular, there was a real risk that for this reason different courts could reach different conclusions as to the liability of Kaiser and Patel." (see paragraph 36)

32. In Watson v First Choice Holidays and Flights Ltd [2001] 2 Ll. Rep 339, the Claimant sued a tour operator and the owner/manager of the resort for personal injuries sustained in consequence of the actions of a security guard who chased him off the site. The claim against the tour operator was in breach of contract (by the terms of its contract with the Claimant, liability was accepted for the acts and omissions of sub-contractors), and that against the Spanish owner/manager was in tort, founded on direct and vicarious liability. The Court of Appeal extensively analysed the decision of the ECJ in Réunion Européenne, in particular paragraph 50, and concluded that the latter's discussion of Article 6(1) was not strictly necessary to the result. Although the Court of Appeal ultimately referred a number of questions to the ECJ for preliminary ruling, and the case was withdrawn before judicial determination, paragraphs 29 and 31 of its Judgment are relied on by the Claimant in the instant case:

"In terms of facts and of law, there appears to be a substantial connection between the claims by Mr Watson against First Choice and against Aparta. The facts to be investigated are the same, apart from the addition of the contract between Mr Watson and First Choice. The liability of First Choice, as alleged, is based on the fault of Aparta. Moreover, the contractual liability of a tour operator in these circumstances is bound to extend to cover the consequences of events which would give rise to tortious or delictual liability on the part of another, because of the requirements of [an EU Directive]
…
Thus, it is clearly likely that there will be claims arising from package holidays brought against tour operators in contract as a result of the negligent supply of holiday services for which a foreign supplier is responsible. That supplier's fault is likely to give rise to a direct claim in tort or delict by the consumer, in addition to the contractual claim by the consumer against the tour operator … the factual basis of all these claims will be the same. If they cannot be brought in the same jurisdiction there is clearly a risk of irreconcilable, or at the very least contradictory, results in different cases."

33. In Et Plus SA v Welter [2006] 1 Ll Rep 251, Gross J considered claims brought variously in breach of contract, procuring breach of contract, unlawful interference with business, and tortious conspiracy, against a number of defendants on broadly similar facts. At paragraphs 57-59 of his Judgment, Gross J explained his approach to Article 6(1) of the Brussels Regulation, and considered that the test was that laid down in Kalfelis. To the extent that Réunion Européenne suggested a narrower test, Gross J doubted it. Applying the appropriate test to the facts of the case before him, Gross J concluded that, although there was not an exact overlap between the factual allegations raised, there was "a common core allegation" of tortious conspiracy which readily satisfied the Kalfelis test. Overall, Gross J applied what he called a broad common sense approach which avoided an over-sophisticated analysis.
34. Finally, in Gard Marine and Energy Ltd v Tunnicliffe [2011] Bus LR 839, the Court of Appeal considered the application of Article 6(1) of the Brussels Regulation to a claim involving the construction of a reinsurance contract and defendants domiciled respectively in England and Wales, and in Switzerland. On my understanding of his Judgment, Thomas LJ did not accept that the decision of the ECJ in Kalfelis had been modified by its later decision in Roche Nederland (see paragraphs 25-32). The ratio of Gard Marine is set out at paragraph 35 of the Judgment of Thomas LJ, as follows:

"In the light of the judgment of the ECJ and in particular the Freeport case, I consider that the court should approach the matter in the light of the policy of the Convention that jurisdiction is generally based on the defendant's domicile. In seeing whether an exception to this general rule exists in a given case, the court must assess the connection between the claims to see whether there is a risk of irreconcilable judgments arising out of separate proceedings such that there may be a divergence in the outcome where there is "the same situation in law and fact". In so doing, it is necessary for a national court to look at all the factors. Beyond this, I do not think it desirable to go in the light of the established case law. It is not necessary to discuss or decide the precise meaning of "irreconcilable judgments" to decide this case … or enter into a wider debate on possible problematic results that might arise in practice."

35. Mr Caplin drew my attention to Thomas LJ's observation that had the proper law of the relevant contractual document constituting the relationship with the Swiss company been Swiss law, then no risk of divergence would have arisen, because the proper law of the main agreement was subject to English law. As Thomas LJ put it at paragraph 36 of his judgment, "construction of the slip under English law would not necessarily be contradictory to or irreconcilable with a different construction under Swiss law". However, the issue in Gard Marine was confined to the true construction of a reinsurance contract, and in such circumstances the application of different legal regimes would, without more, obviate the risk of irreconcilable judgments. There were no factual issues for the court to determine; the contractual documentation could not be gainsaid. Accordingly, I do not draw out of that authority the wider proposition that it is sufficient for Mr Caplin's purposes in the instant case, where factual issues abound, to demonstrate that different legal regimes govern the claim against the First Defendant on the one hand, and the Belgian Defendants on the other.
36. Equipped with these authorities, Mr Caplin advanced a number of submissions. He relied heavily on the decision of the ECJ in Roche Nederland as articulating principles of general application. He submitted that it was sufficient for his purposes that English law governed the claim against the First Defendant, and Belgian law the claim against the Belgian Defendants; and even if it was not, the existence of different legal regimes constituted an additional reason for upholding his submission on divergence. Further, although there may be some factual overlap between these claims, a number of allegations are not common to the two groups of defendants. For example, the allegations advanced under paragraph 6(a)-(c) of the Particulars of Claim are confined to the First Defendant, and those under paragraphs 8(b)(v)-(vi), and (c), are limited to the Belgian Defendants. It is not being contended by the Claimant that there is any relevant legal relationship between the Defendants, whether arising in contract, tort or by operation of law, which would make the liability of one Defendant, or pair of Defendants, contingent on the liability of another. The position might be different if the First Defendant were vicariously liable for the acts or omissions of the Belgian Defendants, or if the Claimant's case were founded on tortious conspiracy, alternatively some other basis for a joint and several liability.
37. Mr Wilkinson's submission was that, in order to establish a risk of "irreconcilable judgments", it was sufficient for the Claimant to show a risk of conflicting judgments on the facts or on the law. As he put the matter at paragraph 12 of his Skeleton Argument:

"This is self-evidently a case in which there would be a risk of irreconcilable judgments if matters proceeded to trial on liability and quantum in both England and Belgium. As liability is in dispute the primary task at trial will be to determine factually how the accident occurred. Different tribunals could reach fundamentally different conclusions on this central issue. The trial judge(s) will need to determine the roles and responsibilities of the different parties to the proceedings. Such findings will inevitably shape the determination of the liability issues …"

38. In my judgment, it is not possible to articulate a composite set of principles which unify, or harmonise, the decisions of the ECJ in this area, because they are not altogether consistent with one another. The decision which I find to be the most problematic is Roche Nederland, because on one reading of that case a Claimant seeking to rely on Article 6(1) in order to remove his claim from the general rule of Article 2 would fail if the "legal situation" is different, in other words if the causes of action are governed by different national laws. However, I consider that the ECJ has resiled from this strict line in Freeport: see paragraph 47 in particular.
39. In situations where the outcome is capable of turning on a point of law (e.g. Gard Marine), the application of different legal regimes will mean that no risk of "irreconcilable judgments" arises. However, in cases which are heavily fact-dependant, and which may also turn on questions of law, the ambit of inquiry for Article 6(1) purposes must be much broader: it must embrace "all the necessary factors in the case file" (per paragraph 41 of Freeport), accepting the element of circularity inherent in the use of the epithet "necessary". As in many legal situations, this is a domain where context is all. In short, I am guided by the broad common sense approach, eschewing over-sophisticated analysis, enjoined by Thomas LJ in Gard Marine, approving Gross J in Et Plus (see paragraph 24 of Gard Marine).
40. The context here is the relatively familiar one of a multi-party claim for personal injuries where the Claimant's principal target is his employer, by whom a non-delegable duty is owed, and his secondary target is the entity responsible for the machine which allegedly caused his accident. The employer is not of course vicariously liable for the employees of the Belgian Defendants and Global Tunnelling Experts BV, but it is directly liable in respect of matters relating to the system of work which it is incapable of delegating. In these circumstances, it seem clear that any court trying this case, whether against the First Defendant or the Belgian Defendants, would have to resolve the following issues of fact, namely:

i) exactly how the accident happened;

ii) the state of the machine, and who knew or ought to have known about it;

iii) the condition of the ramp and surrounding area, and who knew or ought to have known about it;

iv) the system for maintaining the machine and the workplace in general;

v) the overall system of supervision, who gave instructions to whom etc;

vi) the possible contributory negligence of the Claimant.

Although witnesses would doubtless have to be called for the First Defendant, the Belgian Defendants and the Dutch subcontractor, the resolution of these issues of fact is, or should be, common to the causes of action advanced against both sets of Defendants.

41. Mr Caplin submits that the liability of one Defendant, or pair of Defendants, does not necessarily depend on the liability of the other. I would agree as far as this goes, placing appropriate emphasis on the adverb "necessarily". It is possible to envisage permutations or combinations of factual findings which might lead to liability being established against one Defendant, or pair of Defendants, and not against the other. However, in my judgment that is not particularly likely, and in any event the issue for me is whether there is a risk of "irreconcilable judgments", not a certainty. Adapting a broad common sense approach, it seems to me that the following outcomes are within the bounds of practical possibility:

i) the accident was caused by systemic failings, either in the design or maintenance of the Bobcat machine, and/or in the workplace as a whole (in which circumstances both sets of Defendants would probably be found liable);

ii) the accident was caused by the one-off, adventitious negligence of the driver of the machine, or the Claimant himself (in which circumstances, subject to paragraph 8(a) of the Particulars of Claim, neither Defendant would be found liable);

iii) the accident was caused by specific acts or omissions of the Belgian Defendants in one or more of the respects pleaded against them but not the First Defendant (in which circumstances the First Defendant may conceivably have an argument on liability – this scenario is possible but unlikely);

iv) the accident was caused by specific acts or omissions of the First Defendant in one or more of the respects pleaded against it but not the Belgian Defendants (in which circumstances the Belgian Defendants would not be found liable – this scenario appears far-fetched);

v) The Claimant's case is factually untrue or incorrect, in which circumstances none of the Defendants would be found liable.

42. Mr Caplin submitted, in line with paragraph 83 of Painer, that it is a material consideration that the Defendants are alleged to be acting independently of each other. I agree that this is a factor in his client's favour, but it is far from being conclusive.
43. I do not accept Mr Wilkinson's submission that the First Defendant's reliance on the Civil Liability (Contribution) Act 1978 as against the Belgian Defendants advances his case any distance. The invocation of a statutory right of contribution as between Defendants cannot alter the legal status of the Claimant's separate, pleaded case against each of the Defendants. On the other hand, for the reasons I have already given, the fact that the principal claim against the Belgian Defendants depends on Articles 1382 and 1384 of the Belgian Code Civile is not a factor which particularly avails Mr Caplin in the circumstances of this case. That a duty of care, and consequent liability, may be owed by a main contractor to a subcontractor's servant or agents, either directly or vicariously, is not in any event a particularly surprising proposition, being not materially different from the position obtaining in this jurisdiction (see, in this context, paragraph 82 of Painer). I should not be understood as saying that the position under these provisions of the Code Civile mirrors the common law, but I would be surprised if there were major divergences in the context of this case.
44. In his Skeleton Argument but not his oral submissions, Mr Caplin contended that the Belgian Defendants could not have predicted that a claim against the First Defendant could have proceeded in the English Courts, thereby forming the anchor to the claim to which they now find themselves attached. This submission is based on paragraph 81 of Painer (see paragraph 29 above), and the arbitration clause located in the contract of employment between the Claimant and the First Defendant. I am not much attracted by this submission. Irrespective of the precise effect of the arbitration clause (and whether it applies to claims for damages for personal injuries), I cannot agree that private arrangements between contracting parties could have any logical bearing on the Belgian Defendants' foresight, or lack of it.
45. In my judgment, having regard to all the necessary factors drawn to my attention by the parties to this application, there is a risk of irreconcilable judgments arising from separate proceedings, and Mr Wilkinson has persuaded me that Article 6(1) of the Brussels Regulation applies to the instant case.

The Application of Articles 18-20 of the Brussels Regulation

46. Section 5 of the Brussels Regulation, containing Articles 18-20, provides as follows:

"Jurisdiction over individual contracts of employment

Article 18

1. In matters relating to individual contracts of employment, jurisdiction shall be determined by this section, without prejudice to Article 4 and point 5 of Article 5.

…

Article 19

An employer domiciled in a Member State may be sued:


1. in the courts of the Member State where he is domiciled; or

2. in another Member State:

(a) in the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so, or

(b) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.


Article 20


1. An employer may bring proceedings only in the courts of the Member State in which the employee is domiciled.

2. The provisions of the Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending."

47. Mr Caplin submitted that (a) the present claim relates to an individual contract of employment, being either the Claimant's contract with the First Defendant and/or the Claimant's implied contract with the Belgian Defendants, (b) the provisions of Section 5 of the Brussels Regulation lay down an exhaustive jurisdictional regime which oust both Article 2 and Article 6, and (c) it is sufficient for the purposes of point (b) that any part of the Claimant's pleaded case relates to, in the sense of presupposes the existence of, an individual contract of employment. For the purposes of all these submissions, the Court must examine the substance of the matter rather than the exigencies or happenstances of the Claimant's pleadings.
48. Mr Caplin placed heavy reliance on the decision of the ECJ in Glaxosmithkline v Rouard [2008] ICR 1375. There, the Claimant sought damages for wrongful dismissal in France against a French company and a UK company, and for the purposes of his second claim sought to rely on Article 6(1) of the Brussels Regulation. The ECJ held that Article 6(1) did not apply because Section 5 of the Brussels Regulation laid down a self-contained, autonomous code for disputes relating to individual contracts of employment. This was a rule of special procedure which fell to be interpreted strictly and narrowly (see paragraphs 27 and 28 of the Judgment of the ECJ). Furthermore, if Article 6(1) could be used in these circumstances, then employees would be deprived of the protections clearly afforded by Article 20.
49. Mr Caplin also drew to my attention the decision of the Court of Appeal in Alfa Laval Tumba AB v Separator Spares International Ltd [2013] 1 WLR 1110. In that case it was held that claims for misuse of confidential information and breach of contract "related to" an individual contract of employment even if they happened to be formulated in tort or delict rather than in contract. Longmore LJ observed that the substance of the matter could not be circumvented or emasculated by the label attached to a pleading (see paragraphs 23 and 25 of his Judgment, and paragraph 42 of Davis LJ in similar vein).
50. Mr Wilkinson submitted that (a) the present case is not concerned with an individual contract of employment, in the sense of the sort of employment dispute exemplified by Glaxosmithkline; (b) it is not sufficient for the Belgian Defendants' purposes to demonstrate the existence of a contract between the Claimant and the First Defendant: what is required is the existence of a contract between the Claimant and the Belgian Defendants, and none exists; and (c) to the extent that paragraph 8(c) of the Particulars of Claim may presuppose the existence of a relevant contract then, without prejudice to the foregoing matters, a blue pencil may be put through it.
51. I do not doubt that Section 5 of the Brussels Regulation establishes a self-contained, exhaustive regime for "matters relating to an individual contract of employment". Mr Caplin was unable to show me a case where either the ECJ or the domestic court has held that a claim for personal injuries brought against an employer is caught by Section 5. The authorities he has relied on are clear examples of employment disputes. Accordingly, and depending on one's point of view, Mr Caplin's case is either novel (but none the worse for that), or seeks to lure me into heterodoxy (and should be treated with circumspection).
52. In the absence of directly applicable authority, Mr Caplin is forced back to first principles. He points out, entirely correctly, that the present case could have been brought in contract, for breach of implied terms, rather than in the tort of negligence. He would have to accept that it is entirely conventional for those advising Claimants to plead negligence rather than breach of contract, and that the sort of pleading "game" stigmatised by Longmore LJ could not fairly be said to apply to the present case. Further, Mr Caplin draws my attention to Civil Jurisdiction and Judgments, 5^th Edition, by Professor Adrian Briggs, where at page 157 the following passage appears:

"Whether a matter relates to an individual contract of employment only if it is founded on the contract is uncertain. There seems to be no reason why a claim formulated as one in tort but which arises from the contractual relationship – based on an allegation that the employer has breached his statutory duty to maintain a safe system of work, for example – would not fall within the Section, and every reason why it should fall within it. "

Professor Briggs does not set out the reasons why such claims should fall within Section 5, but it may be possible to supply at least two. First, the rubric – "matters relating to individual contracts of employment" – should be given a purposive, EU-wide, autonomous meaning. Secondly, as the ECJ explained in Glaxosmithkline, the approach to Articles 18 and 19 must apply equally to Article 20.

53. Mr Caplin also referred to Employment Contracts and Private International Law by Dr Louise Merrett, Senior Lecturer at the University of Cambridge. At pages 102 and 103 of her work Dr Merrett points out that Articles 5(1) and 5(3) are mutually exclusive provisions, and that a claim which relates to a contract cannot simultaneously be a claim in tort or delict. Thus:

"This would suggest that any claim for breach of an express or implied term of the employment contract and a claim for tort arising from that contract, not only falls within Section 5, but also can only be brought under Section 5."

Dr Merrett suggests that a claim based on a specific regulation made under the Health and Safety at Work etc Act 1974 might be different, because it does not depend on the contract of employment.

54. In the absence of authority from the ECJ, the point is not easy to resolve, not least because the policy and objects of Section 5 of the Brussels Regulation are not altogether clear. It seems obvious that a special regime should apply to employment disputes, but less patent that the same regime should apply to personal injury claims, particularly in circumstances where the application of Articles 18-20 to such claims renders reliance on Article 6(1) impossible. I see the partial force of the argument that employees need to be protected (see Article 20), but in this particular context there will be only rare situations in which employers will be suing their employees in relation to personal injuries, or anything analogous.
55. I am just about persuaded by the weight of academic opinion which Mr Caplin has brought to bear in support of his submissions. Not without a measure of hesitation, I conclude that Articles 18-20 of the Brussels Regulation apply to claims for damages in personal injuries where a relevant contract of employment exists.
56. However, I cannot accept Mr Caplin's submission that it is sufficient for his purposes that a contract of employment exists between the Claimant and the First Defendant. In my judgment, he needs to satisfy me to the requisite standard that a contract of employment exists between the Claimant and the Belgian Defendants, and for the reasons previously explained I am not so satisfied. During the course of oral argument I raised with Counsel the question of the application of evidential/legal burden of proof, and gave the parties the opportunity to revert to me by way of further submissions in writing following the close of oral argument. Only Mr Wilkinson has availed himself of the opportunity, but his additional submissions do not materially add to his oral argument. Mr Caplin submitted that it was incumbent on the Claimant to satisfy the Court that it possessed jurisdiction over the Belgian Defendants in all material respects, but I cannot accept that the Claimant has to shoulder any burden of proof to the effect that his case does not fall within Section 5. That would be to require him to prove a negative.
57. Ultimately, though, the resolution of this point probably does not turn on the application of any burden of proof, but rather on the correct legal analysis of Section 5 in the particular circumstances of this instant case. Insofar as Article 19 applies to the present case, it enables the Claimant to sue the First Defendant in the courts of its domicile. Articles 18-20 have no application to the claim against the Belgian Defendants, because no relevant contract of employment exists. As I have said, insofar as any contract of employment exists, it permits, rather than precludes, a claim in this jurisdiction. I fail to see how Section 5 should operate to prevent the Claimant from relying on Article 6 in circumstances where the claim against the Belgian Defendants does not fall within that section at all. To hold otherwise would be to re-write the relevant Articles in a fashion which is not mandated by any teleological approach to them.
58. It follows that paragraphs 8(a) and 8(b) of the Particulars of Claim plead matters which do not relate to any relevant individual contract of employment. I have already expressed my reservations about paragraph 8(c), and Mr Wilkinson indicated in argument that, to the extent that the 1996 Act appeared to be founded on a contractual relationship, this Court could effectively strike out that part of his pleading. I have considered whether this would be an appropriate course, not least because Mr Wilkinson is completely innocent of the sort of pleading "game" criticised by Longmore LJ in Alfa Laval and, not through any deliberate policy, has failed to plead any relevant facts and matters which amount to an averment of a relevant contract between the Claimant and the Belgian Defendants. Ultimately, however, I remain agnostic as to whether paragraph 8(c) of the Particulars of Claim presupposes a contractual relationship (see paragraph 18 above). In those circumstances, I conclude that Mr Caplin has failed to persuade me that paragraph 8(c) brings the claim within the ambit of Section 5 of the Brussels Regulation. The justice of the matter is met by my making it clear that it will not be open to the Claimant at trial to amend his case and/or seek to argue that the 1996 Act applies because an implied contract existed with the Belgian Defendants.
59. Mr Caplin also submitted that I should hold that the Claimant has abused the process of the Court by impleading the Belgian Defendants in these proceedings. I fail to understand how that submission might operate as a freestanding objection to this claim, assuming that I should find myself in disagreement with Mr Caplin elsewhere. The ECJ in Freeport held, at paragraph 54, that if Article 6(1) was properly engaged, then it was not incumbent on the Claimant to demonstrate in addition that the claim was not brought with the sole object of ousting the court of domicile. Put another way, if the law permits Mr Wilkinson to rely on Article 6(1) of the Brussels Regulation, then he is entitled (without more) to do so.

Conclusion

60. The Belgian Defendants' application must be dismissed.