EUPillar C-372/07 Nicole Hassett v South Eastern Health Board and Cheryl Doherty v North Western Health Board (First Chamber) [2008] ECR I-07403

Summary

This case on Art 22(2) was referred to the CJEU in proceedings in which two doctors claimed an indemnity and/or a contribution from their mutual defence organisation, the MDU, in respect of any sum which -in the context of medical negligence actions brought by Hassett and Doherty against the health boards for which those doctors worked- either doctor might be ordered to pay by way of indemnity to the health boards. Hassett and Doherty brought two actions for damages in Ireland against two Irish health boards for serious personal injuries allegedly caused through the professional negligence of the doctors employed by them. In those actions, the health boards applied to have the relevant doctor joined as a third party, in order to claim an indemnity or a contribution from them. In both actions, a settlement was reached under which an indemnity payment was made to the claimant. The doctors were members of the MDU (a professional association, established as a company incorporated under English law and having its registered office in the UK) whose mission was to provide indemnity to its members in cases involving professional negligence on their part. The doctors sought an indemnity and/or a contribution from the MDU in respect of any sum they might be required to pay by way of indemnity to the health boards, but the Board of Management of the MDU refused their request at its discretion under the Articles of Association. The doctors applied to the Irish High Court for leave to join the MDU as an additional third party and this was granted. The MDU sought to have that order set aside. The MDU argued that the English courts had jurisdiction over claims concerning the validity of its Board of Management’s decisions under Art 22(2). The doctors claimed that the MDU had acted in breach of its contractual obligations by failing to consider properly the claims for indemnity submitted to it and that the Irish courts had jurisdiction under Art 5(1) and (3) and Art 6(2). The court rejected the MDU’s objection. At the appeal, the referring court asked the CJEU about the applicability of Art 22(2). The CJEU observed that Art 16 of the Brussels Convention and Art 22 of Brussels I are identical in essence. It cited its relevant case-law on the Brussels Convention, in particular 73/77 Sanders, C-8/98 Dansommer and C-343/04 ČEZ, where it had held that Art 16 introduces an exception to the general rule governing the attribution of jurisdiction and therefore it must not be given an interpretation broader than is required by its objective, since its effect is to deprive the parties of the choice of forum which would otherwise be theirs and, in certain cases, it results in the parties being brought before a court which is not that of the domicile of any of them. It also took account of the Jenard Report. It observed, in order for Art 22(2) to apply, it is not sufficient that a legal action involve some link with a decision adopted by an organ of a company (by analogy, in relation to Art 16(1) of the Brussels Convention, C-294/92 Webb and Dansommer). It stated that otherwise all legal actions brought against a company -whether in matters relating to a contract/tort or delict/any other matter- would almost always come within the jurisdiction of the courts of the MS in which the company has it seat and this would thus extend the scope of Art 22(2) beyond its objective. It found that that provision covers only disputes in which a party is challenging the validity of a decision of an organ of a company under the company law applicable or under the provisions governing the functioning of its organs, as laid down in its Articles of Association. In the present case, the doctors did not challenge the fact that the MDU’s Board of Management was empowered under that company’s Articles of Association to adopt that decision. They challenged only the manner in which that power was exercised. It found that the disputes do not fall within the scope of Art 22(2).