EUPillar Royal & Sun Alliance Insurance Plc and Another v MK Digital Fze (Cyprus) Ltd and Others [2006] EWCA Civ 629

Summary

There was a contract between one of the claimants, a French company, and one of the defendants, a Danish company, for international carriage of goods by road. The goods were to be delivered to Middlesex, England. There was a theft, and the goods were lost in transit. In this context, the following questions were to be addressed by the English court: Did the English court have jurisdiction? Were for the English proceedings to be stayed in light of the parallel proceedings in France? In England, the claims were about: (1) a declaration that the dispute between the parties was governed by the Convention on the Contract for International Carriage of Goods by Road (CMR); (2) a declaration for non-liability or limited liability; (3) a claim for indemnity. The jurisdiction of the English court was challenged. The High Court dismissed the jurisdictional challenge. It was held that, in line with Article 71 of Brussels I, jurisdiction was to be determined by reference to Article 31 CMR. Since the place designated for delivery was in England, the English court had a jurisdiction. It was further held that the issue of parallel proceedings should be dealt with under Brussels I as both France and the UK were party to it. The proceedings in England and France had the same cause of action within the meaning of Art. 27. Since the English court was first seised, the proceedings were not to be stayed. Mr Justice Aikens held that: “68 Both sets of proceedings have the same object in the sense that they have the same end in view, which is to determine the liability, if any, of Exel to Hi-Tec, for the loss of the mobile telephones stolen on November 4, 2004. A decision in either Court should be a conclusive answer to the question raised in the other. 69 Accordingly, I conclude that, as between Exel and Hi-Tec, the proceedings in France and the United Kingdom involve the “same cause of action” for the purposes of Art.27 of the Brussels I Regulation.” [68-69] There was an appeal against the High Court judgment. The Court of Appeal held that the English court had no jurisdiction under the CMR (as there was no CMR relationship). The appeal was decided under the Brussels Convention (as Denmark is not a party to Brussels I). The English court did not have jurisdiction under Art. 2 and/or 5(1) of the Brussels Convention either. In this context. Lord Justice Rix held: “60 […] it seems to me to be close to abusive to be running one case in France, and another inconsistent case in England, and to be doing so for tactical reasons in a situation of conflict over respective challenges to the jurisdiction of the two courts. Where the English court has to be satisfied, on the basis of a good arguable case, that it is proper for it to accept jurisdiction here, on the basis of CMR's Art.31.1, in a situation of conflict over the proper analysis of the parties' contractual relationship, I do not see how Exel can succeed when it has adopted Hi-Tec's contractual analysis which excludes the possibility of invoking CMR's Art.31.1. 61 For all these reasons, I would hold that in this respect Hi-Tec's appeal succeeds: Exel has failed to show a good arguable case for a CMR contract bringing with it CMR's Art.31.1 jurisdiction code.” [2006] EWCA Civ 629 [60-61]