EUPillar Samengo-Turner v J&H Marsh & McLennan (Services) Ltd [2007] EWCA Civ 723

Summary

The claimants domiciled in England, working for the first defendant, an English company that was part of the Marsh McLenon group of companies. The third defendant was the holding company that was incorporated in Delaware. The English company was providing services for the second defendant, a company incorporated in Delaware. In April 2007, the claimants gave a resignation notice to their employer, specifying that they were to start working for their employer’s competitor. A bonus agreement was part of the claimant’s employment contract which contained a New York exclusive jurisdiction clause. In May 2008, the defendants commenced proceedings in New York, and sought a repayment of the bonuses from the claimants. In response, the claimants commenced proceedings in England, seeking an anti-suit injunction with a view to restraining the defendants from contusing with the New York proceedings. The claimants in England relied on s. 5 of Brussels I, which stated that the proceedings related to the employment contract against the employees had to be brought in England. The High Court judge disagreed. An appeal was made by the claimants. On 12th July 2007, an appeal was allowed by the Court of Appeal that granted an anti-suit injunction. In this context, Lord Justice Tuckey held that: “35 A construction of s.5 in the way I have indicated gives effect to the objectives of the Regulation. It achieves certainty and avoids multiplicity of proceedings by ensuring that all those companies in the MM group who wish to sue on the terms of the bonus agreement are required to sue in the courts of the employees' domicile. Otherwise MMC and any other company in the MM group could sue in New York and MSL would have to sue in England. The English courts have the closest connection with the dispute, concerning as it does the claimants' activities during their employment and receipt of the award in England. The fact that the plan is administered and regulated in New York is of no relevance to the present proceedings. This construction also offers the claimants protection from proceedings in jurisdictions other than that of their domicile. Section 5 applies to all employees irrespective of any particular need for protection. But if these claimants are entitled to be sued here I can well understand why they feel the need to be protected from the proceedings in New York. […] 37 For these reasons I conclude that s.5 is engaged in this case. It follows that we must disregard the exclusive New York jurisdiction clause in the bonus agreement because it was agreed before the dispute arose. 43 […] The only way to give effect to the English claimants' statutory rights is to restrain [the New York] proceedings. A multinational business must expect to be subject to the employment laws applicable to those they employ in different jurisdictions. Those employed to work in the MM group in London who are domiciled here are entitled to be sued only in the English courts and to be protected if that right is not respected. There is nothing to prevent MMC and GC or any other company in the MM group from enforcing their rights under the bonus agreements here.” [2007] EWCA Civ 723 [35 – 37 and 43].