The ‘causal event’ limb of Bier: the event giving rise to the damage

The court with jurisdiction under the second limb of Bier is the court for the place of the event giving rise to the damage which is jurisdictionally significant under the first limb.

The material question is which of the antecedent elements of the story is to be seen as the event giving rise to the damage. This will be determined in a uniform manner which is not tightly tied to the elements of the cause of action pleaded before the court: the point is well established by Shevill v Presse Alliance SA,^3,7 and Marinari v Lloyd's Bank Plc.^3K In Shevill, a case of defamation in the press, the European Court stated that the event giving rise to the damage took place where the publisher of the newspaper was established and the production of the newspaper was organised, rather than where the actual copies of it were shown to a third party. Left to its own devices, English law would have considered the dissemination of the newspaper as the event giving rise to damage, and the reception and reading of it the occurrence of damage; but according to the European Court, a uniform approach was to be adopted. The same approach was taken in Marinari, in which the actio injuriarum of Italian law, on which the claimant relied, was not used as the template for identification of two limbs of Bier: the event giving rise to the damage was held to have taken place where the promissory notes were confiscated, and not where the depleted patrimony was eaten into or diminished, no matter what Italian law might have said. It now seems obvious that, though it was controversial at the time, this approach was inevitable.

The ‘causal event’ limb of Bier: the event at the beginning of the story

The European Court has tended to favour an interpretation of the event giving rise to the damage which focuses on the origin of the damage-causing event. If that event can be understood to have had its centre of gravity in a single place, that will answer the question, but where it is not possible, the focus is on the event at the start, rather than at the end, of the story.

In Shevill v Presse Alliance SA,^[1] it was the production (editorial and printing) of the newspaper with its pages of lies, rather than the distribution or sale, which gave rise to the damage. In DFDS Torline AIS v SEKO,³¹⁰ it was the place where the notice of industrial action was given and received, since that was ‘the place where the harmful event originated’. By this reasoning, the judge in Domicrest Ltd v Swiss Bank Corp,³¹¹ dealing with a misrepresentation case, was right to look for the act or omission which lay at the beginning of, rather than further along, the causal chain; he reasoned that the place of the event which gave rise to the damage was where the misstatement originated, not where it was received and acted on by the claimant.

In Kain: v Pantherwerke AG,³¹³ damages were claimed against a manufacturer for personal injury resulting from use of a bicycle, which the claimant had purchased from a retailer, and which was evidently defective or dangerous. It was held that the manufacture, rather than the acquisition, was the event giving rise to the damage. The European Court considered that the place of manufacture was best suited to the gathering of the evidence which would establish the defect in question, and that this was consistent with the requirement that rules governing jurisdiction should be predictable. Where the gist of the case is that something went wrong in the manufacture, so that the thing was inherently dangerous, this is plainly correct. The case was not one in which the essence of the wrong lay in the absence of a warning: it was hardly as though there should have been a bright yellow sticker on the saddle saying ‘do not ride this bicycle because the frame will shatter and you will be flung into the oncoming traffic’, or something like that. However, there will be other cases in which the proposition that the causative event really is the failure to give a proper warning, rather than the very manufacture, will make perfect sense. The pharmaceutical product which has nothing inherently wrong with it, but which should not be taken during pregnancy, or with alcohol, or when operating heavy machinery, for example, gives rise to damage because of the lack of warning, not by reason of inherent vice. It may therefore be that in other kinds of product liability, the case for arguing that the place of the failure to deliver a suitable warning will be the place of the event which actually gives rise to the damage.

Kain: therefore points to an event at the beginning of the process, rather than a later one, as that which gives rise to the damage. Other cases involving more complex facts have generally kept to this line. In the case of the infringement of a trademark, the European Court explained that ‘in the case of an alleged infringement of a national trade mark registered in a Member State because of the display, on the search engine website, of an advertisement using a keyword identical to that trade mark, it is the activation by the advertiser of the technical process displaying, according to pre-defined parameters, the advertisement which it created for its own commercial communications which should be considered to be the event giving rise to an alleged infringement, and not the display of the advertisement itself’.^[2] That also lends further support to the view that the substantial event at the beginning, not at the end, of the commission of whatever gave rise to the damage is the pointer to special jurisdiction under this rule.

As a result, where a financial institution issues a bond but puts false information in the prospectus, which influences an investor to make an unwise investment, the event giving rise to the damage will be the drafting and production of the prospectus, not the handing of it to the investor. It will generally be the place of the conclusion of the cartel, rather than the manipulation of a particular market in furtherance of it. It will be the place where the unlawful conspiracy is hatched, rather than the place at which the wicked scheme is put into operation. It will be the place where the dominant position is abusively exercised; and it will always depend on an autonomous interpretation of the elements of the cause of action relied on. The reasoning may at times be a little rough and ready, but given the immense range of complaints which have to be dealt with, it works reasonably well.

• [1] C-68/93, [1995] ECR 1-415. 2 C-18/02, [2004] ECR 1-1417. 3 At [41]. 4 [1999] QB 548. 5 C-45/13, EU:C:2014:7, [2015] QB 34. 6 Cf Distillers Co Ltd v Thompson [1971] AC 458.
• [2] C-523/10 Wintersteiger AG v Products 4U Sondermaschinenbau GmbH EU:C:2012:320, [2013] Bus LR 150. See also C-441/13 Hejduk v EnergieAgentur.NRW GmbH EU:C:2015:28, [2017] ILPr 181. 2 C-375/13 Kolassa v Barclays Bank Pic EU:C:2015:37, [2016] 1 All ER (Comm) 733, [53]. 3 C-325/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Evonik Degussa GmbH EU:C:2015:335, [2015] QB 906. 4 C-27/17 AB flyLAL-Lithuanian Airlines’ v Starptautiskd lidosta ‘Riga’ CAS, EU:C:2018:533, [2019] 1 WLR 669; JSC BTA Bank v Khrapunov [2018] UK.SC 19, [2020] AC 727. Domicrest Ltd v Swiss Bank Corp [1999] QB 548 is, in effect, approved by these decisions. 5 C-27/17 AB 'flyLAL-Lithuanian Airlines’ v Starptautiskd lidosta ‘Riga’ CAS, EU:C:2018:533, [2019] 1 WLR 669. 6 C-228/11, EU:C:2013:305, [2013] QB 1112. The principle was applied in C-387/12 Hi Hotel HCF Sari v Spoering EU:C:2014:215, [2014] 1 WLR 1912 without elaboration or comment.