EUPillar Marzillier, Dr Meier & Dr Guntner Rechtsanwaltsgesellschaft mbH v AMT Futures Ltd [2015] EWCA Civ 143

Summary

The claimant, AMT, was based in England. The defendant, MMGR, was a German law firm. The claimant was active on the financial service market, and had numerous agreements, containing an English jurisdiction clause. The claimant was suing in England. It was alleged that the defendant induced its clients to sue in Germany which was in breach of the jurisdiction agreement. The claim against the defendant was in tort of wrongfully inducing a breach of contract. The value of the claim was over 2 million. The defendant challenged the jurisdiction of the English court. The English High Court dismissed the defendant’s challenge. Mr Justice Popplewell held: "[...] AMT’s claim against MMGR falls within art.5(3) . The place where the damage occurred as a result of MMGR’s allegedly tortious conduct was England [...].” [46] An appeal was made to the Court of Appeal which allowed the appeal, reversing the High Court judgment. Lord Justice Christopher Clarke held: “53 If one looks at the matter more broadly and asks: what was the harm which, in this case, occurred in England, it seems to me impossible to say that it was the failure to issue proceedings here; and, if the harm was that proceedings were issued in Germany, then it was in Germany that the harm was suffered. 54 Such a conclusion is consistent with the authorities of the ECJ. If I ask myself: (i) what is “the place where the event giving rise to the damage … directly produced its harmful effects upon” AMTF ( Dumez )”; or (ii) where was the “actual damage” which “elsewhere can be felt” or the “initial damage” suffered ( Marinari ); or (iii) what was the place where the damage which can be attributed to the harmful event (commencement of proceedings) by “a direct and causal link” ( Reunion ) was sustained, the answer is, in my judgment, Germany. […] 56 Insofar as it is relevant to consider whether England or Germany is the place where the parties could expect any action to take place or the place whose jurisdiction was justified for “reasons relating to the sound administration of justice and the efficacious conduct of the proceedings”, there is something to be said for both England and Germany. If MMGR procured a breach of an English law contract with an exclusive jurisdiction clause they could certainly anticipate the possibility of being sued in England. But given that they are domiciled in Germany and that the bulk of the loss was suffered there, they could reasonably have anticipated that, under the terms of the Convention, the place where they should be sued in tort was Germany. Insofar as the efficacious conduct of the proceedings is concerned, England would have the advantage that an important question on liability is whether there was a breach of an English law contract, which MMGR induced. At the same time since Germany is the place where the losses were incurred there would be advantages in proceedings being conducted there. In any event the exercise with which the court is concerned is not the selection of a forum conveniens. 57 I would, accordingly, allow the appeal. I do not reach this conclusion with any great enthusiasm since there is much to be said for the determination of what is in essence an ancillary claim in tort for inducement of breach of contract to be made in the court which the contract breaker agreed should have exclusive jurisdiction in respect of that contract, rather than in the courts of the country where the inducement and breach occurred.” [2015] EWCA Civ 143 [53, 54, 56 and 57].