EUPillar Barton and Other v Golden Sun Holidays Ltd (In Liquidation) and Avlida Hotel Ltd [2007] I.L.Pr. 57

Summary

The claimants bought a package holiday which was arranged for them by the defendant. The claimants developed gastrointestinal infections at the hotel, where they stayed, in Cyprus. Claims for damages were brought in England against the defendant. The claims were settled by April 2006. In March 2006, the defendant made an application for permission to issue a Pt 20 claim against Avlida Hotel Ltd which is why Article 6(2) of Brussels I became relevant. On 10th April 2006, the application, which was made without notice to the Pt 20 defendants, was granted by the district judge. In October 2006, the Pt 20 claim was served to Avida Hotels in Cyprus. The defendants made an application, seeking to set aside the order. Their application was dismissed by another district judge. The Pt 20 defendants appealed. The appeal was allowed by the English High Court, holding that: “24 The question therefore arises whether the defendant instituted the Pt 20 claim against the Pt 20 defendant solely for the purpose of removing it from the jurisdiction of the Court which would be competent in its case. […] 29 It is also that fact that at the time the Pt 20 claim was commenced the proceedings between the claimants and the defendant were settled. That being so there was no possibility of irreconcilable judgments in the event of proceedings between the defendant and Pt 20 defendant in Cyprus. Further, there was no possibility of the Pt 20 claim being tried at the same time as the claim between the claimants and the defendant. 30 All these factors combine to suggest, strongly, that the court should conclude that the sole purpose of the Pt 20 proceedings was the removal of the Pt 20 defendant from the jurisdiction of the court which would be competent in its case. […] 44 […] the purpose behind the special jurisdiction conferred by Art.6(2) is to secure the rational and efficient disposal of trials and in particular to avoid the risk of irreconcilable judgments. That is abundantly clear from the preamble to the Regulation and from the decisions in Kalfelis , Hagen , and GIE Reunion (cited above). In my judgment Phillips J. says nothing in Kinnear which would or could dilute that underlying rational. 45 I also agree with the Deputy Judge that domestic third-party proceedings which merely happen to satisfy the national procedural rules will not necessarily be regarded as “any other third-party proceedings” within Art.6(2) . That article is intended to have the same meaning in effect in each contracting state. 46 In my judgment it is beyond dispute that a connection must exist between the proceedings commenced by the claimant and the proceedings commenced by the defendant against a Pt 20 defendant before the Pt 20 proceedings can be considered to fall within Art.6(2) . It is not possible to define the nature of that connection notwithstanding the understandable desire that Art.6(2) is understood and applied by all contracting states in the same way. It seems clear, however, that the connecting factor must be a close one—see [11] in Hagen —and there must be good reason to conclude that the efficacious conduct of proceedings is best promoted by both the claim between claimant and defendant and claim between defendant and Pt 20 defendant being considered by one court. 47 In my judgment there is no close connection between the two sets of claim in the instant case. […]” [2007] I.L.Pr. 57 [24, 29, 30 and 44-47].