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Jurisdiction Under Brussels I Regulation 2 Notes

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JURISDICTION UNDER BRUSSELS REGULATION 2 Tort

i) ii)

Article 5(3)

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Person domiciled in Member State may be sued in matters relating to tort, delict or quasi-delict, in courts for place where harmful event occurred or may occur.

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C may bring proceedings under Regulation for both: Committed wrongs (that have already occurred) Threatened wrongs (that may occur in future)

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Regulation does not apply where tort is committed outside of EU. Definition

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'Tort' has autonomous community meaning.

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Tort covers any proceedings which i) attempt to show liability of D; ii) but which does not involve matters relating to a contract.
- Kalfelis v Bankhaus Schroder [1988]

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English courts have diverted from this viewpoint.
? stated that unjust enrichment - which seems to be a 'harm' - was not 'harmful event'.
? Kleinwort Benson v Glasgow City Council [1997]

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ECJ's view is correct one.

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Whether event is 'harmful' as per Article 5(3) may be determined by national law of courts seised.
? Shevill v Presse Alliance [1996]
Place Where Harmful Event Occurred 1) Multiple Localities

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Sometimes D's wrongful act is committed in one place, and the harm occurs in another.

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Here the 'harmful event' as per Art 5(3) occurs either at: i) Place where damage occurs; or ii) Place of event giving rise to damage
- GJ Bier v Mines de Potasse d'Alsace [1976]

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Thus C may choose to sue in either jurisdiction.
? GJ Bier v Mines de Potasse d'Alsace [1976]
i)

Place where damage occurs

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Place in which damage occurs is place where actual harm is or would be inflicted.
? e.g. for sale of defective goods, this is place in which 'initial damage occurs as result of normal use of product for purpose for which it was intended'
? and not place in which defective good was manufactured

? Zuid-Chemie BV [2010]

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For defamation, this is where C's reputation is damaged by defamatory material
? Shevill [1996]

Indirect loss

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'Place in which damage occurs' does not include indirect damage
? i.e. if D caused damage in State A which results in loss for C in State B, C must sue in place where harm was inflicted on him (State A)
? and NOT where this harm resulted in loss for C (State B)
? Marinari v Lloyds Bank [1995]

ii) Place of event giving rise to damage

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Normally easy to know where event giving rise to damage took place. For defamation, this is where defamatory material is published
? Shevill [1996]

Misrepresentation

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For misrepresentation, place of event giving rise to damage is place where D makes the misrepresentation
? and NOT where C hears/receives the misrepresentation.
? Domicrest v Swiss Bank [1999] (UK case)
- thus if misrepresentation is made via telephone by someone in France to someone in UK, harmful event occurs in France NB place in which damage occurs will still be place in which C suffers loss as a result of relying upon misrepresentation
? this usually where C hears and relies on representation
? Domicrest v Swiss Bank [1999]

2) Distinct Torts

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Where events constitute distinct torts, C may sue in every jurisdiction in which a distinct tort has occurred.
? however when suing in particular jurisdiction , C may only recover for harm caused by torts in that jurisdiction.
? Shevill v Presse Alliance [1996]

Claims in Contract and Tort

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ECJ: where there are claims arising from same event for both breach of contract and tort, claims must be separated.
? i.e. both can be brought, but must be done in separate proceedings
? Kalfelis v Bankhaus Schroder [1988]
UK: UK courts have however diverted from this viewpoint.

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