SPECIAL JURISDICTION OVER DEFENDANT DOMICILED IN ANOTHER LUGANO STATE (1)

General

If, having reached this point, none of the previous rules has been shown to apply, the defendant will not be domiciled in the United Kingdom. Two alternatives remain: either he has a domicile in another Lugano State, or he does not have a domicile in any Lugano State.

In the former case, where the defendant has a domicile in another Lugano State but not in the United Kingdom, the courts of the United Kingdom may still have jurisdiction - called ‘special jurisdiction’ - under Section 2 of Title II of the Convention, which comprises Articles 5, 6 and 7. These are the rules examined in this Chapter, which deals with Article 5, and Chapter 15, which covers Articles 6 and 7. If the English^[1] court does have jurisdiction according to these rules, it may exercise it. If under these rules the defendant is domiciled in another Lugano State but the English court does not have special jurisdiction, the jurisdiction enquiry has reached the end of the road, and the defendant is not liable to be sued in England, for the Convention offers no further exception to the general jurisdiction of the courts of the domicile. If the defendant is not domiciled in any Lugano State, he may be sued, but this will have to be in accordance with the provisions of Article 4. Article 4 jurisdiction is examined in Chapter 16, where it will be referred to as ‘residual jurisdiction’.

Special jurisdiction in general

The opening words to Articles 5 and 6 of the Lugano Convention State that

A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued:

and are followed by a total of 11 matters in which this suing of a defendant away from the domicile of his home State is permitted. It is therefore necessary to examine the grounds of special jurisdiction which may be asserted in proceedings brought against a defendant who has a domicile in another Lugano State but not in the United

Kingdom. The rules are reasonably intricate. This is because Article 5 represents a legislative attempt to define when a particular court may be expected to have a close connection with the individual case, reflecting, as it is sometimes described, a principle of proximity.^[2] Article 6 deals with jurisdiction in cases with multiple defendants, third parties and counterclaimants; Article 7 deals with the limitation of liability in shipping claims. It is unlikely that coverage of such large areas could ever be simple, or undertaken in a single chapter. Their practical importance in the scheme of the Convention is obvious.

In Articles 5 and 6, the courts which are given special jurisdiction are usually those for a place, as distinct from the courts of a State as such. In other words, if the defendant is not domiciled in the United Kingdom but in France, he may be sued in the United Kingdom, under Article 5(1), in the court having jurisdiction at the place where the obligation in question was required to be performed; he may be sued, under Article 5(3), at the place where the harmful event occurred. Where the Convention itself gives jurisdiction to the courts for a specified place in, and not merely to the courts of, a Lugano State, there is neither room nor need for a rule of national law to supplement the provisions of the Convention. It also follows that in such a case there is no place for a rule of national law, such as the principle of forum non conveniens, to allow a court, which has been given jurisdiction by Article 5, to stay proceedings in favour of the courts for another part of the United Kingdom.

It is common to read in decisions of the European Court, and elsewhere, that the special jurisdictional rules in Articles 5, 6 and 7 are, as exceptions to the rule that defendants shall be sued where they are domiciled, to be given a narrow interpretation. It will be seen, however, that this has not been consistently applied; and indeed, even the Court conceded that its interpretation of ‘matters relating to a contract’ is far from being a narrow one. It may be more helpful to be guided by the principle that the special jurisdictional rules should not be permitted to extend beyond their proper limits in such a way as would call into question the role of general jurisdiction under Article 2 of the Convention, for that is the more accurate proposition of law.

• [1] In this context it is correct to say English, rather than the courts of the United Kingdom, because Arts 5 to 7 generally give jurisdiction to the courts of a place, not to the courts of a country. In other words, they specify both international and national jurisdiction. 2 Or who may be treated as though he had such a domicile, even if the true position is not known and not discoverable: C-292/10 G v De Visser EU:C:2012:142, [2013] QB 168; C-327/10 Hypotecni Banka as v Lindner [2011] ECR 1-11543; but cf C-l 12/13 A v B EU:C:2014:2195 (defendant still entitled to say that the judgment was in default of (his) appearance, even if the court has appointed a lawyer to represent him. Applied, but surely inappropriately, in Gray v Hurley [2019] EWHC 1636 (QB), [2019] 1 WLR 5333 (the point was not directly considered on appeal: Gray v Hurley [2019] EWCA Civ 2222).
• [2] See for example, C-19/09 Wood Floor Solutions Andreas Domberger GmbH v Silva Trade SA [2010] ECR 1-2121, [22], and cases there cited. 2 See Jenard [1979] OJ C59/1, 22. For illustration, see the opinion of the Advocate General in C-26/91 Jakob Handle & Co GmbH v Sac Traitements Mecano-Chitniques des Surfaces [1992] ECR 1-3967. The concept of ‘place’ will extend to include the continental shelf adjacent to a Lugano State: C-37/00 Weber v Universal Ogden Services £/