EUPillar British American Tobacco Switzerland SA and others v Exel Europe Ltd and others [2012] EWHC 694 (Comm)

Summary

The dispute was concerned with contracts for carriage of goods by road. The goods were lost in transit. The contracts included an English law and jurisdiction clause which is why the proceedings were commenced in England on 9th September 2011. The claimants were members of the BAT groups of companies. The first defendant was an English company; the other defendants were Dutch subcontractors. The Dutch sub-contractors challenged the English court’s jurisdiction. On 23rd March 2012, the High Court upheld the challenge, and set aside the service of the claim form on the Dutch sub-contractors. An appeal was made before the Court of Appeal. On 30th October 2013, the claimants’ appeal was allowed. The English Court of Appeal held: “85 It appears therefore that, where the fundamental principles of the Judgments Regulation are concerned, which include the minimisation of the risk of concurrent proceedings, article 71(1) has to be read down with the effect that it is those principles of the Regulation that become dominant. 86 In the light of these authorities of the ECJ it is probably possible to state three matters about the relationship of a specialist convention like the CMR and the Judgments Regulation . First, the underlying principles of the Regulation will be available to fill a gap left by the jurisdictional provisions of the CMR. […] 87 Secondly, as a result, where there is room for doubt, a purposive construction of the CMR, to bring it as far as possible into line with fundamental Regulation principles, is likely to be an appropriate construction. […]. 88 Thirdly, however, if there is a conflict with such fundamental principles, the lesson of the TNT case [2011] RTR 136 is that in such a case the specialist convention like the CMR has to give way to the Judgments Regulation. 89 […] the better interpretation of articles 31.1 and 36 is that they permit jurisdiction over successive carriers within article 36 if they are made defendants in the same action as that in which the carrier under the primary contract of carriage is made defendant. Such a conclusion is a possible interpretation, a pragmatic interpretation, and would give to the CMR in the matter of successive carriers a jurisdictional approach which would limit the opportunity to find unnecessary gaps in the structure of the Convention which fell to be closed elsewhere. It would also avoid the need to render the CMR's jurisdictional provisions subject to the Judgments Regulation's demand for the minimisation of the risk of concurrent proceedings, which its article 6(1) is there to achieve. [2013] EWCA Civ 1319 [85-89] The case reached the UK Supreme Court. On 28th October 2015, the UKSC allowed the appeal, restoring Mr Justice Cooke’s order to the effect that the English courts have no jurisdiction over the claims against the Dutch sub-contractors. In this context, Lord Mance (with whom Lord Neuberger, Lord Clarke, Lord Sumption and Lord Reed agree) held: “47. In these circumstances, I do not consider that the desirability in some contexts of a provision such as article 6.1 of the Brussels Regulation or Practice Direction 6B para 3.1(1) can affect or impact on the interpretation of articles 31, 34 and 36 of CMR in any significant way. Equally, I do not see how it can be said that there is any gap that article 6.1 should be called upon to fill, even assuming that gap-filling by reference to the Brussels Regulation is admissible and required, in a European Union context, as Colman J thought in Frans Maas Logistics. The scheme of CMR appears to me to be deliberate and comprehensive. For better or for worse, and starting with the model of the Warsaw Convention, it elected for a generous range of heads of jurisdiction. There is no gap in it, as a matter of construction, merely a considered decision that the heads provided would reflect an appropriate balance between the interests of all concerned, potential claimants and potential defendants.” [2015] UKSC 65 [47]