Jurisdiction Under Brussels I Regulation 2 Cases

JURISDICTION UNDER BRUSSELS REGULATION 2

Tort

Shevill v Presse Alliance [1996] (ECJ)

Issue was whether a defamatory statement made by D was ‘harmful’ for purposes of Article 5(3). Held:

• Whether something is a ‘harmful event’ is determined by national law (as chosen by conflict of law rules of courts seised).

• Thus where matter falls to be judged by English law, whether event is harmful is a question of English law.

• On facts, defamatory statements are presumed to be harmful in English law.

• Thus they constitute a tort under Article 5(3)

Place Where Harmful Event Occurred

GJ Bier v Mines de Potasse

D, French company, discharged harmful chemicals into Rhine river. C, nursery owner in Holland, used polluted water on his plants which suffered harm as a result. Question was where C could sue D under Article 5(3). Held:

• ‘Harmful event’ as per Art 5(3) occurs either at:

1. Place where damage occurs

2. Place of event giving rise to damage

• Thus C could sure D either in France (where pollution was put in river) or Holland (where harm to plants occurred).

Zuid-Chemie BV [2010]

D, Belgian company, manufactured a component used in manufacture of fertiliser. C, Dutch company, bought some of this component from D. Component was defective, causing the end-product fertiliser created by C to be ruined. Issue was over ‘place where the damage occurred’ – in Belgium (where the defective component was created by D), or in Holland (where the damage to C’s end-product occurred). Held:

• ‘Place in which damage occurred’ means place in which initial damage results from normal use of product for purpose for which it was intended.

• as opposed to place in which defective product was manufactured.

• Thus place in which the damage occurred is place in which defective component caused the damage to C’s fertiliser

• Thus damage occurred in Holland, when component was mixed with the other ingredients.

• And not in Belgium, where component was made and delivered to C.

Marinari v Lloyds Bank [1995]

D, an English bank, refused to return promissory notes that C, an Italian bank, had deposited in England. As result, C suffered economic loss in Italy. Held:

• ‘Harmful event’ as per Article 5(3) occurred in England.

• i.e. D’s failure to return the promissory notes.

• This despite fact that actual loss suffered by C was in Italy.

• Thus Italian courts do not have jurisdiction under Art 5(3).

Place of Event Giving Rise to Damage

Domicrest v Swiss Bank [1999] (UK case)

C, an English company, accused D, a bank, of tort of negligent misstatement. As result of D’s misstatement as to creditworthiness of one of D’s client, C released goods in Italy and Switzerland which were then not paid for by the client. This caused C harm via loss of money in its bank accounts in UK. Issue was where ‘harmful event’ occurred. Held:

• Place in which harmful event occurred is place in which misstatement was made.

• And not place in which misstatement was received.

• Form (i.e. email, telephone) by which statement is made to C is irrelevant

• As it is D’s negligent words, and not C’s receipt of them, which constitutes the ‘harmful event’.

• Thus irrelevant whether misstatement made in writing or via instantaneous communication.

• Thus on facts:

• Harmful event occurred in Switzerland (issuing of negligent misstatement)

• Damage occurred in Switzerland (where goods were released by D)

• this despite fact that D heard and acted upon misstatement in UK, and suffered its economic loss in UK

Shevill v Presse Alliance [1996]

• Thus when suing for defamation, in each individual jurisdiction C could recover no more than the harm caused to his reputation in that jurisdiction.

Source Ltd v Rheinland [1998]

Facts arose under which C had claims both in tort and for breach of contract. Was found that English courts had no jurisdiction under BIR to hear claims for breach of contract; thus relevant issue was whether English courts could have jurisdiction to hear tort claims. Held:

• Where same facts give rise to both contractual and tortious liability, if UK has no jurisdiction to hear contractual claims it cannot hear the tortious claims.

• ‘Matters relating to tort’ has been stated by ECJ to mean any liability of D that is non-contractual.

• Thus where there is simultaneous liability under a contract and outside of a contract, this liability is ‘contractual’ for purposes of Article 5(1).

Activities of a Branch/Agency

Anton Durbeck [2003]

D, Norwegian bank, entered into a loan agreement with owners of a ship via its London branch, secured on ship itself. Owners defaulted on loan, and London branch gave instructions for arrest of vessel in Panama. C was transporting cargo of bananas on the vessel, and as result of arrest C’s cargo perished. C sued D in England for tort. Held:

• For activities to be those of branch, suffices that there is sufficient nexus between branch and dispute in question.

• i.e. so that it is natural to describe dispute as one arising from activities of branch

• Here, as it was London branch which gave instructions to seize ship the alleged tort arose out of operations of D’s London branch.

Lloyds Register of Shipping [1995] (ECJ)

D, an English company, had branch in France. French branch entered into contract which fell to be performed in Spain. C accused D of defective performance, and issue was whether French courts could take jurisdiction under Article 5(5). Held:

• Under Article 5(5), is no need for contractual undertakings entered into by branch on behalf of D to fall to be performed in Member State in which branch is situated.

Multiple Parties

Gard Marine and Energy Ltd v Glacier Reinsurance [2011] (UK)

Issue was whether C could joinder D2 as defendant in English court case against D1 Article 6(1). Both D1 and D2 had concluded reinsurance contracts with C, which were disputed by C. Held:

• When determining risk of irreconcilable judgments, relevant factor is law governing relevant contract (as chosen by parties).

• Both D1 and D2 had obviously...

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