Scottish Court of Session Decisions

At advising on 24th May 1991,—

LORD McCLUSKEY .—On 17th September 1983 in Paisley Road West, Glasgow, Mrs Davenport, the pursuer and appellant, was knocked down by a motor car driven by James Saunders Dunlop. The accident gave rise to summary criminal proceedings in the sheriff court of Glasgow and Strathkelvin at Glasgow: the appendix contains a copy of the complaint at the instance of the procurator fiscal which discloses that Dunlop faced a charge of driving a motor vehicle after consuming alcohol to the effect that the proportion of it in his breath exceeded the statutorily prescribed limit. (This court was not told what happened to that complaint; but it is absolutely clear that it could not be extant in July 1989 when the present action giving rise to this appeal was raised.) Before raising the present action in 1989, the appellant had, in July 1986, raised a civil action of damages against Dunlop, that action being initiated by the serving and tabling of an initial writ in the sheriff court of Glasgow and Strathkelvin at Glasgow. Dunlop did not lodge defences and in September 1986 the appellant took decree in absence against him for the sum of £5,000 sterling with interest at the rate of 15 per cent per annum from 25th September 1986 until payment and for the taxed expenses of the action. The principal sum for which decree was pronounced was the sum craved in the initial writ. That was a sum at which, in the initial writ, the pursuer had estimated her loss, injury and damage resulting from physical injuries to her person and damage to her clothing. She has received from Dunlop no payment in respect of the damages, interest or expenses contained in the decree.

In the present proceedings, also raised in Glasgow Sheriff Court, the pursuer and appellant seeks payment from the defenders and respondents of the sums said to be due to her under and consequent upon said decree in absence. The defenders are an unincorporated association, a registered syndicate at Lloyds, and carry on business as motor insurers. The address from which they carry on that business is in London, England, and it appears that they have no place of business in Scotland. Accordingly their "domicile" within the meaning of the Civil Jurisdiction and Judgments Act 1982 is in England. The pursuer and appellant maintains that the defenders and respondents are liable to pay to her the sums to which she is entitled under said decree in absence, because, when the accident happened in September 1983, Dunlop held a certificate of insurance delivered to him by the defenders and respondents, which certificate of insurance was valid and in force when the accident occurred. The certificate was one which complied with the requirements of sec. 145 of the Road Traffic Act 1988; it followed that the defenders and respondents were liable to pay the pursuer and appellant what she was entitled to under the said decree, because sec. 151 of the 1988 Act so provided. The defenders and respondents do not dispute that Dunlop held a certificate of insurance from them at the material time but maintain that no sum is payable by them because, not having received "notice of the bringing of the proceedings" within the due time, they are excused from payment by virtue of sec. 152 (1) of the 1988 Act. On record, the parties are in dispute as to whether or not "notice of the bringing of the proceedings" was duly given: that is an issue of fact which we are not in a position to resolve and were not asked to resolve. The issue that we are asked to resolve is the issue as to whether or not the defenders are properly subject to the jurisdiction of Glasgow Sheriff Court in this action. It is perhaps unfortunate that other issues relating to the relevancy of the pleadings were not argued in the court below. As a matter of general principle it must be said that, unless there is some good reason to the contrary, all the preliminary pleas which it is intended to maintain and debate before proof should be debated at the same time in order to avoid the danger of a succession of appeals as each issue is resolved.

The only issue which has been argued and dealt with in the court below is that raised by the first plea-in-law for the defenders and respondents. That plea reads:

"1. Glasgow Sheriff Court having no jurisdiction in the case, the action should be dismissed with expenses."

The position taken by the defenders and respondents is, as it has always been, that, being domiciled in England and having no place of business in Scotland, they are not subject to the jurisdiction of Glasgow Sheriff Court and that the pursuer and appellant has failed to aver any circumstances to show that that court has jurisdiction over them.

In her pleadings the pursuer seeks to found the jurisdiction upon various articles contained in Title II of Sched. 4 to the Civil Jurisdiction and Judgments Act 1982. I am content to adopt the explanation contained in Lord Prosser's opinion as to the relationships between Scheds. 1 and 4 and the relevant Convention. Schedule 4 is given effect by sec. 16 (1) of the 1982 Act. Its purpose is to make provision for determining, for each part of the United Kingdom, which courts have jurisdiction in relation to proceedings of the kind described in that section. There is no dispute that the relevant proceedings here are of the kind dealt with by sec. 16 (1) and Sched. 4. In her pleadings, the pursuer and appellant maintains firstly that the sheriff court in Glasgow has jurisdiction in terms of art. 16 (5) contained in sec. 6 of Title II of Sched. 4. That article was not, however, founded upon before the sheriff or the sheriff principal and counsel appearing for the pursuer and appellant did not submit to us that that article conferred jurisdiction. I need say no more about it.

Before this court counsel for the pursuer and appellant made a formal submission to the effect that Glasgow Sheriff Court had jurisdiction in terms of art. 5 (4) of Title II of Sched. 4 to the Act. He did not develope any substantial argument in support of this formal submission and did not seek to reply in any detail to the criticisms of the proposition which he formally made. I can deal with this matter quite briefly because, in my opinion, art. 5 (4) clearly does not provide any basis for jurisdiction in the present case. The relevant part of art. 5 provides as follows:

"A person domiciled in a part of the United Kingdom may, in another part of the United Kingdom, be sued … (4) as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings."

The pursuer and appellant cannot take advantage of that provision to found jurisdiction against the defenders and respondents in the present instance because the claim made in the current proceedings is not a claim for damages or for restitution. It is a claim for payment of a sum of money said to be due because of a statutory obligation said to be imposed on the defenders by the provisions of sec. 151 of the 1988 Act. If this were not otherwise clear it would be made clear by the terms of the first and second pleas-in-law for the pursuer which read as follows:

"(1) The sum sued for being due and resting owing to the pursuer by the defenders, decree should be granted as craved and with expenses. (2) The defenders having an obligation in terms of sec. 151 of the Road Traffic Act 1988 to meet the terms of said decree obtained by the pursuer against James Saunders Dunlop, decree should be granted as craved with expenses."

Secondly, even if it were a civil claim for damages or restitution then, although it might be said to be "based on an act giving rise to criminal proceedings" in that the act of driving which caused the pursuer's injuries also gave rise to a prosecution against the driver, it could hardly be said, and it is not averred, that the sheriff court in which the present proceedings were raised in 1989 was then "seised" of the 1984 criminal proceedings. Although we do not know precisely what happened in relation to the complaint raised in January 1984 it could not be that the court that was "seised" of those criminal proceedings in 1984 was still "seised" of the same proceedings more than five years later. In any event, it is doubtful if the sheriff court before which the 1984 criminal proceedings were brought, could be said to be the same court as that before which the present proceedings were brought. Superficially it might appear that a court in which a sheriff sits in a summary criminal case and a court in which a sheriff in the same sheriffdom sits to exercise a civil jurisdiction are the same court. Difficulties arise at once, of course, when one tries to apply that view of the court structure to the type of situation that might easily arise, namely that the sheriff entertaining criminal proceedings might be sitting in solemn proceedings with a jury. It would be difficult to hold that such a court was the same court as that which heard a proof proceeding in a civil claim for damages. Equally, if one thinks of the supreme court, it would be very difficult indeed to hold that a Lord Ordinary exercising his civil jurisdiction was sitting in the same court as a Lord Commissioner of Justiciary presiding over a criminal jury trial even if the same events had given rise to both the civil and the criminal proceedings. These difficulties do not need to be further addressed in the present case because the pursuer's formal submission fails for the reasons mentioned earlier. It may be noted, however, that para. (4) contains the words "to the extent that that court has jurisdiction under its own law to entertain civil proceedings". It is not easy to think of any criminal court in Scotland which has jurisdiction to entertain civil proceedings at the present time. I refer to Professor A. E. Anton's work, Civil Jurisdiction in Scotland, paras. 5.40 to 5.43 where art. 5 (4) is discussed. If this point had to be decided I should agree with the view there expressed that art. 5 (4) "has no jurisdictional implications for the Scottish courts". It appears evident that provisions such as those contained in art. 5 (4) might well have a place in the legal systems of other states subscribing to the convention upon which Sched. 4 is largely based. It may also be that, in future, the United Kingdom legislature might enable a Scottish court which is "seised" of criminal proceedings to entertain at the same time civil proceedings, whether for compensation, or for return of stolen articles, or for declarator, interdict or the like. In view of the way in which this matter was presented to us and for the reasons already given I conclude that jurisdiction is not conferred by art. 5 (4) in relation to the present proceedings.

The real issue which this court has to resolve related to the meaning and application of art. 5 (3). That provides:

"A person domiciled in a part of the United Kingdom may, in another part of the United Kingdom, be sued … (3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or in the case of a threatened wrong is likely to occur."

My spirit is not uplifted by the elegance of the English in which this provision is couched, and its syntax is curious. We are required, however, not to admire it but to understand it. There are many canons of interpretation which courts are invited to apply in order to extract the meaning from a statutory provision whose meaning does not spring from the page, and counsel for the appellant referred us to these with particular reference to Maxwell on Interpretation of Statutes(12th edn.), paras. 2.1 and 6.1 and to certain cases in which words similar to those under consideration were interpreted: Standard Securities Ltd. v. Hubbard and Anr. [1967] Ch. 1056, and R. v. Chichester Crown Court ex p. Abodunrin and Sogbanmu (1984) 79 Cr. App. R. 293. But, as counsel for the respondents pointed out, the statute itself provides for the approach which the court must take in interpreting the provisions of this Schedule.

Section 16 (3) provides:

"In determining any question as to the meaning or effect of any provision contained in Schedule 4—(a) regard shall be had to any relevant principles laid down by the European Court in connection with Title II of the 1968 Convention and to any relevant decision of that court as to the meaning or effect of any provision of that Title; and (b) without prejudice to the generality of paragraph (a), the reports mentioned in sec. 3 (3) may be considered and shall, so far as relevant, be given such weight as is appropriate in the circumstances."

Section 3 (3) refers us to "(a) the reports by Mr P. Jenard on the 1968 Convention and the 1971 Protocol; and (b)the report by Professor Peter Schlosser on the Accession Convention". Unfortunately nothing in any of these reports sheds any light upon the problems which we are required to resolve but we were referred to certain cases determined by the European Court in connection with Title II of the 1968 Convention. In particular we were referred to Peters v. ZNAV (Case 34/82) [1983] ECR 987;Six Constructions Ltd. v. Paul Humbert (Case 32/88) [1989] E.C.R. 341 and Kalfelis v. Bankhaus Schröder Münchmeyer Hengst & Co. (Case 189/87) [1988] ECR 5565. The facts in these cases are of no relevance so far as the present dispute is concerned but the cases, notably Kalfelis,appear to me to lay down principles, within the meaning of sec. 16 (3) of the 1982 Act, which are important. The first of these is that the expression, "matters relating to tort, delict or quasi-delict" used in art. 5 (3) of the Convention (and also in art. 5 (3) in Sched. 4) has to be given "an independent meaning". This point is dealt with by the European Court as the second question in the judgement of 27th September 1988 in Kalfelis. It is sufficient to quote part of para. 16:

"Accordingly, the concept of matters relating to tort, delict or quasi-delict must be regarded as an autonomous concept which is to be interpreted, for the application of the Convention, principally by reference to the scheme and objectives of the Convention in order to ensure that the latter is given full effect."

Paragraph 18 adds to that in saying, "It must therefore be stated in reply to the first part of the second question that the term ‘matters relating to tort, delict or quasi-delict’ within the meaning of art. 5 (3) of the Convention must be regarded as an independent concept covering all actions which seek to establish the liability of a defendant and which are not related to a ‘contract’ within the meaning of Article 5 (1)." For present purposes what I take from that is that the expression, or concept of, "matters relating to tort, delict or quasi-delict" must be understood in precisely the same terms throughout the jurisdictions of all the member states so that the provisions of the Convention are applied uniformly. This appears to me necessarily to involve a departure from the usual method of interpreting a United Kingdom statute by reference to the canot or principles of statutory interpretation which have been collected and formulated in works such as Maxwell on Interpretation of Statutes or Craies or the like. No doubt we are still required to look at the words of the statute in order to discover if possible what they mean; we cannot ignore the literal meaning if it is evident. Similarly, common sense itself requires that we must discover the "mischief" with which the statute was concerned; more properly put that means that we must interpret the current provisions, "principally by reference to the schemes and objectives of the Convention". Negatively, I consider that the effect of the principle which is enshrined in this part of the Kalfelis decision is to make it plain that we should be slow to seek guidance from previous uses of the same or similar expressions in United Kingdom statutes or indeed in case law preceding the passing of the 1982 Act.

The second principle which appears to me to emerge from the Kalfelis case is that contained in para. 19 of the judgment. That reads:

"With respect to the second part of the question, it must be observed, as already indicated above, that the ‘special jurisdictions’ enumerated in arts. 5 and 6 of the Convention constitute derogations from the principle that jurisdiction is vested in the courts of the State where the defendant is domiciled and as such must be interpreted restrictively. It must therefore be recognised that a court which has jurisdiction under art. 5 (3) over an action in so far as it is based on tort or delict does not have jurisdiction over that action in so far as it is not so based."

In my opinion, counsel for the defenders and respondents was correct in his submission that this court must treat art. 5 as creating a series of exceptions to the general rule contained in art. 2, namely:

"Subject to the provisions of this Title, persons domiciled in a part of the United Kingdom shall … be sued in the courts of that part."

The effect, therefore, is that domicile is the primary and residuary criterion for founding jurisdiction. Other articles may derogate from the principle that the jurisdiction follows the defendant's domicile but the exceptions must be strictly construed. Also, and of equal importance, it appears to me to follow from the terms of para. 19 that it is essential in considering the interaction of art. 2 and art. 5 (3) to determine precisely what it is on which the action before the court is based.

I therefore turn to consider what is the basis of the present action. There cannot be any doubt that the original claim for damages by the pursuer and appellant against Dunlop was a claim based on delict or quasi-delict. Her claim was for damages caused by his negligence. Her 1986 action was based on "tort, delict or quasi-delict" without a doubt. Before 1930, and at common law, the pursuer and appellant would have had no remedy against anyone other than Dunlop: Hood's Trs. v. Southern Union General Insurance Co. of Australiasia [1928] Ch. 793, C.A.; and Zurich General Accident and Liability Insurance Co. Ltd. v. Morrison (1942) 72 L1. L. Rep. 167, C.A. The Third Parties (Rights against Insurers) Act 1930 and the Road Traffic Act 1934, sec. 10, conferred certain rights exercisable against the insurer by a person who had an unsatisfied claim against the insured. This type of provision has been added to by statutory and non-statutory schemes and the provisions referred to in secs. 151 and 152 of the 1988 Act contain and qualify such extended rights. Section 151 (5) provides as follows:—

"(5) Notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy or security, he must, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment—(a) as regards liability in respect of death or bodily injury, any sum payable under the judgment in respect of the liability, together with any sum which, by virtue of any enactment relating to interest on judgments, is payable in respect of interest on that sum, (b) as regards liability in respect of damage to property, any sum required to be paid under sub-section (6) below, and, (c) any amount payable in respect of costs."

But, in my opinion, the claim by a person who has obtained a decree, such as the appellant obtained against Dunlop, against someone who was insured at the material time in terms of Pt. VI of the Road Traffic Act 1988, and who seeks to make good the unsatisfied judgment against the insurer who issued the certificate of insurance under sec. 147, is a claim which is based upon the statutory provision and upon nothing else. It is of course true that unless the pursuer and appellant had had and had obtained a judgment in respect of a claim based on the tort or delict of negligence she would not have been entitled to make a claim against the insurers under sec. 151. It is also true that what the pursuer and appellant may be able to claim from the insurers under sec. 151 appears, at least in the case averred here, to be for all practical purposes the same sum as she obtained decree for against Dunlop (though this would not necessarily always be so); but, in my opinion, it cannot be said that the present action is one "based on tort or delict". It will be clear that I have been using the expression "based on tort or delict" rather than the expression, "in matters relating to tort, delict or quasi-delict" being the words which appear in art. 5 (3). That is because it appears to me that the effect of the Kalfelis case in circumstances such as the present is that the words "in matters relating to" become virtually synonymous with the words "in proceedings based upon".

Apart from these considerations, it appears to me that the whole thrust of art. 5 (3) supports the same interpretation. This is another formulation of the principle derived from Kalfelis,that reference must be made to the schemes and objectives of the Convention. Article 5 (3) refers to "the courts for the place where the harmful event occurred" or to "the courts for the place where … a threatened wrong is likely to occur". It appears to me that these expressions make clear the underlying intention of the Convention, and therefore of the United Kingdom provision, which is to confer the exceptional jurisdiction upon a court other than the court of the domicile of the defender, only when the obvious convenience of the case so requires. In matters relating to tort, delict or quasi-delict, whether the harmful event has already occurred or is merely threatened in the imminent future, it makes perfectly good sense to confer exceptional jurisdiction upon the court which has the closest connection with the facts which lie at the heart of the issue which is to be litigated. The same principle appears to me to apply in other paragraphs of art. 5. Thus art. 5 (1) confers jurisdiction in matters relating to a contract upon the courts which have jurisdiction in the place where the obligation in question is due to be performed. Article 5 (5) confers jurisdiction in relation to a dispute arising out of the operations of a branch, agency or other establishment, on the courts for the place in which that branch etc., is situated. Once again the Convention is conferring the exceptional jurisdiction because of the obvious convenience of litigating in the court nearest to the place where the relevant activity is taking place or has taken place. When I look at the character of the present dispute I find that it is not a dispute about what happened in Paisley Road West, Glasgow, on 17th September 1983. It is a dispute about whether or not notice of the kind desiderated by sec. 152 (1) (a) of the 1988 Act was given and received. It might, or might not, have made sense to provide that, in cases where an injured person has a claim against an insurer under sec. 151 of the 1988 Act, jurisdiction should be conferred upon the courts of the place where the injured person or the insured person lived or where the injured person sustained his injury. But, whatever else art. 5 (3) provides, it does not provide that in matters relating to the existence or non-existence of a statutory liability under secs. 151 and 152 of the Road Traffic Act 1988 the courts of the place where the original claim was pursued shall have jurisdiction. If in the present proceedings an exceptional jurisdiction cannot be derived from art. 5 (3), the only basis for jurisdiction would be domicile; but no such basis is averred by the pursuer for the present action. It follows that Glasgow Sheriff Court has no jurisdiction.

In summary, therefore, the only stateable basis for jurisdiction in the present proceedings, namely art. 5 (3), is not a sound basis having regard to the character of the claim which the pursuer and appellant makes against the defenders and respondents. In my opinion, therefore, the sheriff principal's judgement is correct and this court should refuse the appeal.

LORD PROSSER .—In 1986, the pursuer raised an action in Glasgow Sheriff Court against James Saunders Dunlop, seeking damages in respect of loss and injury sustained by her through his negligence. In September 1986, she obtained decree in absence against Mr Dunlop in that action. The defenders in the present action are a registered syndicate at Lloyds, and are the insurers of Mr Dunlop. The pursuer seeks decree for £5,345.01, representing the principal sum of £5,000 for which she obtained decree in absence against Mr Dunlop together with the relevant interest, expenses and auditor's fee. The basis upon which such a decree against the insurers is sought is to be found in the Road Traffic Act 1988, and in particular the provisions of sec. 151 of that Act, which provide that in certain circumstances an insurer must pay any sum payable under a judgment to the persons entitled to benefit of the judgment. In particular (and subject to other provisions of the section) sec. 151 (5) provides that an insurer must pay to the persons entitled to benefit of the judgment:

"(a) as regards liability in respect of death or bodily injury, any sum payable under the judgment in respect of the liability, together with any sum … payable in respect of interest".

Section 152 of the Act makes provision for giving notice to the insurer, and there is an issue between the parties in the present case as to whether the required notice was given. There is however a prior question as to jurisdiction. The sheriff held that there was jurisdiction. On appeal, the sheriff principal held that there was no jurisdiction. The present appeal by the pursuer is against that decision.

The question of jurisdiction turns on the provisions of the Civil Jurisdiction and Judgments Act 1982. Schedule 1 to the Act sets out the English text of the 1968 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Brussels on 27th September 1968, as subsequently amended. Schedule 4 of the Act contains a modified version of Title II of the 1968 Convention, and sec. 16 of the Act provides for these provisions to have effect for determining, for each part of the United Kingdom, whether the courts of law of that part, or any particular court of law in that part, have or has jurisdiction in proceedings where (a) the subject matter of the proceedings is within the scope of the 1968 Convention, and (b)the defender is domiciled in the United Kingdom. It is not disputed that Sched. 4 applies to the present proceedings. The questions which arise in the present case turn upon words found in Sched. 4 which also appear in the unmodified version of the Convention found in Sched. 1. Such modifications (by way of omission, addition or substitution) as are introduced by Sched. 4 have in my opinion no material bearing on the interpretation of the relevant words.

Title II of the Convention, as set out in its modified form in Sched. 4 of the Act, provides by art. 2 that subject to the provisions of the Title, "persons domiciled in a part of the United Kingdom shall … be sued in the courts of that part". That provision would provide jurisdiction against the present defenders in England, but not in Scotland. Article 3 provides that persons domiciled in a part of the United Kingdom may be sued in the courts of another part of the United Kingdom "only by virtue of the rules set out in sections 2, 4, 5 and 6 of this Title". Section 2 of the Title is headed "Special Jurisdiction". It contains a number of articles, but of these, only art. 5 is directly in point in the present proceedings.

Article 5 provides as follows:

"A person domiciled in a part of the United Kingdom may, in another part of the United Kingdom, be sued: (1) In matters relating to a contract, in the courts for the place of performance of the obligation in question … (3) In matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or in the case of a threatened wrong is likely to occur."

Of the various heads, only head (8) is not to be found in the unmodified Convention, and only the final words of head (3) ("or in the case of a threatened wrong is likely to occur") reflect any substantive alteration to the other heads. The various heads cover a wide range of matters, but their specific provisions are not in point, and the ground of jurisdiction relied upon by the pursuer is that contained in head (3). The defenders, being domiciled in England, may be sued in Scotland "in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred".

In the present proceedings, are the defenders being sued "in matters relating to delict"? If so, I do not understand it to be disputed that Glasgow Sheriff Court would be a court "for the place where the harmful event occurred". The pursuer's claim against Mr Dunlop arose out of a motor accident which she attributes to his negligence. That accident was within the jurisdiction of Glasgow Sheriff Court and we are concerned with no other harmful event or delict. But are the present defenders, in the present proceedings, the legal basis of which is a statutory obligation created by sec. 151 of the 1988 Act, being sued in a matter relating to delict?

Plainly, the defenders are not being sued "in delict", nor could this be described as an "action of delict". Nor, in my view, is it an action which could be described as based upon, or founded upon delict, or as an action the ground of which is delict. The pursuer does not seek to establish any delict, or delictual liability on the part of the defenders. If head (3) of art. 5 had provided that a party domiciled in England could be sued in Scotland in delict, or in actions of delict, or in actions based or founded upon delict, or in actions the ground of which was delict, it does not seem to me that an action such as this, based upon the section 151 obligation to pay, could be said to fall within the scope of the provision. But I did not understand the pursuer to contend that the present action would comply with descriptive phrases of the kind I have mentioned.

The contention for the pursuer was that the language employed in head (3) of art. 5 is wider and looser, and should be interpreted accordingly as having a wider scope than actions which are themselves based or founded upon assertions of delictual liability. It provides for a person being sued in "matters relating" to delict. Each of these two words is very wide and unspecific, when a narrow intention could perfectly well have been expressed in various narrow ways. This showed that narrowness was not intended, and that jurisdiction was being conferred not merely where there was an actual action founded upon alleged delict, but over a wider field of matters which merely related to delict in some less direct way. The same two words occurring in head (1) ("matters relating to a contract") would afford jurisdiction even when no contractual liability was asserted, and when an alleged contract was not the basis, or even the subject-matter of the action. So also under head (3), there would be jurisdiction when a person was sued in matters which related to delict in some ordinary sense, notwithstanding that the precise legal basis of the action might be some right arising from some source other than delict.

Having regard to the imprecise words in question, and the ease with which a more precise terminology could have been adopted, I find these arguments quite persuasive. Moreover, when one turns to the terminology of sec. 151, it is not difficult to regard the obligation there imposed upon an insurer as being related to delict, although not, of course, itself an obligation ex delicto. The starting point is a judgment in respect of a liability of the insured. On the facts of the present case, that means a decree in respect of Mr Dunlop's liability in respect of bodily injury to the pursuer, in an action founded upon his delict. What the insurer has to pay is the sum payable under that decree. One can thus reasonably say that what the present action seeks is payment of a sum of damages for a delictual wrong, although obviously the delict was Mr Dunlop's and not the insurers. The payment which is sought in the present action would on that basis be a payment of damages for that delictual wrong, and would be reparation to the pursuer for that wrong. That being the nature of the remedy which the present action seeks, is not suing the defenders for that remedy properly to be regarded as suing them in a matter relating to delict?

In contending for an affirmative answer to this question, counsel for the pursuer and appellant maintained that the crucial words should be given an ordinary or "literal" interpretation. However, counsel for the defenders and respondents contended that a strict or narrow interpretation of these words was appropriate. This contention was founded upon the cases of Kalfelis v. Bankhaus Schröder Münchmeyer, Hengst & Co. (Case 189/87) [1988] ECR 5565 and Six Constructions Ltd. v. Paul Humbert (Case 32/88) [1989] E.C.R. 341. In each of these cases, the European Court treated the "special jurisdictions" set out in arts. 5 and 6 of the Convention as "derogations" from the "principle" that jurisdiction is vested in the courts of the state where the defendant is domiciled, and held that as such they must be interpreted restrictively. In dealing with Sched. 4 to the 1982 Act, one is not concerned with different States, but I am satisfied that if a restrictive meaning is to be given to particular words in the Convention itself, as set out in Sched. 1, that same meaning is to be given to those same words in Sched. 4, in the absence of any modification which alters their context and, in consequence, their interpretation.

I am not at all sure that I understand why the general jurisdiction based on domicile is seen as a "principle", from which the special jurisdictions are seen as "derogations". I should have thought it possible to see jurisdiction based on domicile as a useful general catch-all, with the list of special jurisdictions representing obviously useful (and often more sensible) criteria for jurisdiction, affording a choice rather than derogating from a principle. However, having regard to the requirements of sec. 3 of the 1982 Act, any question as to the meaning or effect of any provision of the Convention has to be determined in accordance with the principles laid down by and any relevant decision of the European Court. It is furthermore provided that judicial notice shall be taken of any decision of, or expression of opinion by, the European Court on any such question. On that basis, I feel obliged to proceed upon the basis that the special jurisdictions are to be regarded as derogations, and are to be interpreted restrictively. That being so in relation to the Convention itself as set out in Sched. 1 to the 1982 Act, I can see no justification for a different interpretation of the same words in the same article in its modified form in Sched. 4, notwithstanding the fact that the Sched. 4 version is concerned with allocation of jurisdiction within the United Kingdom, where it might be easier to regard jurisdiction based on domicile as less a matter of principle, and the "special" jurisdictions not as derogations from any such principle and in that sense "odd", but as being, in each specific category, an obviously sensible (and perhaps the obviously sensible) basis for jurisdiction.

Accepting that a "restrictive" approach is appropriate, what does this entail? Six Constructions Ltd. v. Humbert does not appear to me to afford any real help, on the facts of the present case. Kalfelis v. Bankhaus Schröder is largely concerned, in the discussion of art. 5 (3), with determining that the expression "matters relating to tort, delict or quasi-delict" must be regarded as an independent concept: it would plainly be unacceptable if the relationship to tort, delict or quasi-delict was one which was recognised in, and perhaps resulted from legal principles special to, one member state and not another. In excluding such particular relationships from the interpretation of the phrase, a "restrictive" interpretation is adopted. It cuts out any such special meanings, but it leaves the phrase open to a natural or "literal" interpretation otherwise. This breadth of possible interpretation is perhaps reflected in the indication in Kalfelis that this independent concept would cover "all actions which seek to establish the liability of a defendant and which are not related to a ‘contract’ within the meaning of art. 5 (1)". That very wide definition (which was naturally founded upon by the pursuer and appellant) must in my view be read in context, and cannot be taken as making art. 5 (3) an almost universal ground of jurisdiction, omitting only those matters within art. 5 (1). But I think it is important to note that the restriction of the concept to a general Community interpretation, omitting relationships created or recognised under individual systems of law, leaves open the possibility of a very wide scope for the words in art. 5 (3).

The more specific restriction recognised by the court in Kalfelis was to the effect that a court which has jurisdiction under art. 5 (3) over an action in so far as it is based on tort or delict, does not have a jurisdiction over that same action in so far as it is not so based. That proposition results partly from the decision that the phrase is an independent concept: particular legal systems may allow one to sue in contract, or on the basis of unjust enrichment, in a particular action, if there is also a claim founded upon delict, with a ground of jurisdiction appropriate to delict. That type of "relationship", when the other bases of claim have no delictual element in themselves, is excluded. Thus far, the restriction adopted by the court does not appear to me to turn upon the view that the special jurisdictions are derogations from the general jurisdiction based upon domicile. At least in relation to contract, the decision appears to turn more upon the view that heads (1) and (3) appear to be mutually exclusive. That again would be a particular form of "restrictiveness" which does not seem to me to entail any generally narrow meaning of the vital phrase in head 5 (3). Moreover, it does not appear that there is a similar need for mutual exclusivity between either of these two heads and some of the others.

Nonetheless, the requirement of a restrictive interpretation is expressed in general terms, and it is clear that if art. 5 (3) is so to be interpreted that it makes the minimum inroads on the general jurisdiction based on domicile, the expression "matters relating to" must not be so interpreted as to cover all manner of loose or indirect relationships between the matter in hand and the concept of delict. What types of relationship will be covered and what types will not, does not seem to me to receive any general clarification in Kalfelis, although it illustrates certain relationships which will not suffice.

While the word "matters" is in a sense loose and wide, I find it reasonably clear that in this context it refers to the particular action, and its subject matter. As I have indicated, in the present case the action and its subject matter are not themselves, and are not argued to be, matters of delict. It is rather the expression "relating to" which is said to extend the scope of head (3) beyond cases which are themselves a matter of delict. I have indicated the way in which the actual subject matter of this case has, inherent in it, a relationship with the prior delictual claim against Mr Dunlop, and can indeed be seen as seeking a delictual remedy. In my view, that makes this a much stronger case than Kalfelis for the contention that the relationship is truly a relationship covered by head (3). There is, I think, on any view, a relationship of a kind between this action and delict.

In the end of the day, however, I have come to the view that even upon a literal or ordinary reading of the section, that kind of relationship is not one which would naturally lead one to describe this case or its subject matter as a "matter relating to delict". It is essentially a matter relating to the vindication of a statutory right, and while of course it has relationships with various other factual and legal situations and concepts, and a relatively close relationship with a particular delict and the provision of remedies for that delict, I am not persuaded that in ordinary language that suffices to make it a matter relating to delict at the same time as being a matter of vindicating a statutory right. The expression "relating to" may often indicate quite loose relationships, particularly when the phrase is used in contra-distinction to some more precise expression which indicates a direct relationship or connection. I would not wish to hold that in the context of art. 5 (3), the expression may not cover something rather wider than actual actions founded upon delict. But interpretation comes to be a matter of impression at borderlines, and even in terms of ordinary or literal language, I am not satisfied that the phrase in question covers the situation in question.

The requirement to be restrictive does not therefore seem to me in this particular case to make any difference. If I had reached the opposite view on the ordinary meaning of head (3), the requirement to be restrictive would nonetheless have driven me to the conclusion which I have reached without that requirement.

While other matters were raised in the appeal, I do not feel it necessary to comment upon them. I would agree with your Lordship in the chair and dismiss the appeal.

LORD MILLIGAN .—I have read the opinion of your Lordship in the chair and I agree with it. In particular, I agree that jurisdiction cannot be sustained in this action unless it can properly be said that the action constitutes proceedings "based upon delict" (Kalfelis v. Bankhaus Schröder Münchmayer, Hengst & Co. (Case 189/87) [1988] ECR 5565). The history of the pursuer's claim for compensation has involved (1) an accident on 17th September 1983 in which allegedly she sustained injury as a pedestrian when struck by a car driven by a Mr Dunlop; (2) an action raised by her against Mr Dunlop in July 1986 in Glasgow Sheriff Court, claiming £5,000 damages, for which sum she obtained decree in absence on 25th September 1986; (3) a period of time thereafter during which presumably it was ascertained that there was no prospect of recovering compensation without further litigation; and (4) the raising by the pursuer of the present action in Glasgow Sheriff Court in July 1989, seeking to recover from Mr Dunlop's insurers the "sum payable under the judgment" against Mr Dunlop (Road Traffic Act 1988, sec. 151 (5)). The jurisdiction question apart, there is an issue in the present action as to whether the requisite due notice of the action against Mr Dunlop was given to the present defenders within seven days of its commencement (1988 Act, sec. 152 (1)). It is clear that the pursuer's action against Mr Dunlop was not only a delictual action but was 100 per cent a delictual action. "The province of the law of delict, stated most generally is, … the legal duties of forbearance from inflicting harm on others and the consequential duty of making reparation if and when harm is done." (Walker on Delict (2nd edn.), p. 3).

When the pursuer obtained decree in absence in that action in September 1986 delictual issues terminated. No delictual issue has arisen in connection with a claim by the pursuer since she obtained that decree in absence. For the purposes of the present action it is totally irrelevant what merit there was in the pursuer's claim against Mr Dunlop. The present action is, again 100 per cent, an action seeking to exercise statutory rights arising, and solely arising, from the decree in absence obtained by her. The issue raised in the action relates to the giving of notice, a matter on which no delictual issue is raised, or indeed could be raised as between the present parties. The only connection between the present action and the law of delict is historic. Such purely historic link cannot, in my view, qualify this action as one "based on delict". I add only a note of regret in that there seems to me much to be said for there being jurisdiction to pursue an action such as the present in a court where there was jurisdiction in the delictual action, and rather less to be said against this being so, at least within the United Kingdom.