Summary
The claimants were threatened with a claim for “damages over the profit commitment arrangements” [4]. In this case, the claimants sought a declaration for non-liability.
The claim form was duly served on the defendants, but they did not take part in the English proceedings. Nonetheless, the English court found jurisdiction, and granted declarations in claimant’s favour.
“11 […] Any claim such as that threatened is based on the inclusion of a provision for profit commission in the reinsurance contract(s). If that occurred it happened in London, where the reinsurance was written, even if any resulting harm occurred in Greece (or Cyprus or Liberia). According to the jurisprudence of the European Court of Justice a party instituting proceedings in reliance upon Article 5(3) may bring his claim either in the place where the allegedly tortious act was committed or where the victim suffered harm: Handeslwerkerij GJ Bier N.V. v. S.A. Mines de Potasse d'Alsace [1978] Q.B. 708. The defendants could, therefore, sue in England. I am satisfied that the claimants can also sue in England for a declaration that they are under no such liability. The purpose of Articles 5 (3) and 5(1) is to prescribe the courts in which matters relating to torts and contracts may be determined. Such matters include whether or not a contract has been made or a tort committed as well as the consequences, if it has. It would seem to me inconsistent with that underlying purpose if it were otherwise—with the result that X who claims that he is the victim of a breach of a contract or a tort committed by Y may sue in the court prescribed, but Y, who claims that there was no contract to be breached and no tort committed, may not avail himself of the same facility.
12 In Boss Group Limited v. Boss France S.A. [1997] 1 WLR 351 the Court of Appeal was concerned with jurisdiction under Article 5(1) which applies to matters “ relating to contract ”. In that case a negative declaration was sought in respect of contractual liability, the claimants arguing that the contract under which they were alleged to be liable did not in fact exist. Saville L.J. (as he then was), who gave the leading judgment, held that there were two obligations under the contract (assuming it existed) one of which was to be performed in England, while the other was performable anywhere including England and France. It was held that in these circumstances it was open to the claimants to ‘select’ England for the purposes of Article 5(1) notwithstanding the fact that they denied that a contract had in fact been concluded. The fact that the claimants were denying the existence of the contract did not, as the defendants contended, mean that they could not show a good arguable case under Article 5(1). As to that, Saville L.J. held (at 357) as follows:
“Unless the defendants withdraw their contentions (which they have not done) it seems to me that they cannot challenge the jurisdiction on the basis that they should not be sued here because there is (contrary to those contentions) no contract.”
Saville L.J.'s approach was approved by Lord Hope in Agnew v Lõnsforsõkringsbolagens [2001] 1 A.C. 223 at 258 and adopted by Aikens J. in USF Ltd v Aqua Technology [2001] All E.R. (Comm) 856.
13 In my judgment the same must apply in relation to tort. […]” [11-13]