Jurisdiction over the ‘anchor’ defendant

The claim against the anchor defendant must be brought before the court of a Lugano State in which that defendant has a domicile.

It has been held that the date for ascertaining the domicile of the anchor defendant is that of the institution of proceedings against him, which will mean the date of issue of the claim form which names him as defendant.’ It follows from the wording of Article 6( 1 ) that if the anchor defendant does not on that date have a domicile in that Lugano State, Article 6(1) is unavailable to the claimant. It is not material that the anchor defendant might have had grounds to challenge the general jurisdiction of the court over him but elected not to do so." Of course, a defendant’s submission by appearance in accordance with Article 24 is not enough, by itself, to make him the anchor defendant. But so long as the claimant has the better of the argument on the issue - if it is in contention - that the anchor defendant has a domicile in the

State in which proceedings are to be brought, Article 6(1) is available to allow special jurisdiction to be claimed over a со-defendant domiciled in another Lugano State.^[1] It follows that the passivity of the anchor defendant may in practice jeopardise the jurisdictional position of a со-defendant who may face difficulty in seeking to show that the anchor defendant did not have the domicile on which the claimant relies.

It may be surprising that, if the anchor defendant is sued in a Lugano State other than one in which he is domiciled, but on the basis of a jurisdictional rule which has a higher place in the system of jurisdictional rules, this will not open the door to special jurisdiction under Article 6(1). Jurisdiction which is founded on prorogation in accordance with Articles 23 or 24, for example, is at least as proper as general jurisdiction which is based on domicile. Special jurisdiction as authorised by Article 5 is provided for because the close connection between the facts and matters liable to be in dispute and the court called upon to deal with them means that the existence of special jurisdiction assists the administration of justice. All these jurisdictional rules are rational and integral to the scheme of the Convention, yet they do not provide a basis for the joinder of a со-defendant who is domiciled in another Lugano State. One has to wonder why this should be. From the perspective of the co-defendant, he faces the prospect of being sued in a Lugano State other than one in which he has a domicile. The proposition that it makes any real difference to him whether the anchor defendant, to whose case it is proposed that he be joined, is being sued where he is domiciled or is being sued on another basis for which the Convention makes provision, is fanciful. But there it is: jurisdiction over the anchor defendant must be based on Article 2.

The consequences of that last point are illustrated by the most unsatisfactory decision in GlaxoSmithKline v Rouard.'* The claimant employee had two employers, each part of the GSK group, one domiciled in France and the other in the United Kingdom. He brought proceedings against the French employer in the French courts, as Section 5 of Title II allowed him to do, and sought to join the latter as a со-defendant, relying on Article 6(1). No doubt he assumed that by suing the French defendant in the courts of its domicile he was entitled to assert special jurisdiction over the second employer; the European Court held that he could not. Its analysis was that the jurisdictional rules in Section 5 of Title II were exhaustive, and as they stood they did not make provision for a claim to be brought against a second joint employer in the court where, in accordance with Article 19, the claimant could sue the first joint employer. Special jurisdiction over the second defendant was not available in such a case, for even though the claimant was suing the employer where it was domiciled, he was not doing so on the basis of its general domicile to which a claim against a co-defendant could be joined. The Court understood that its decision was damaging to the sound administration of justice and the economy of procedure, and it realised that it made life very difficult for the employee (and for no one else). It denied that this damaged the interests of the employee, but as Article 6 was to be given a narrow construction, there was no more to be said on the matter.^[2] In Regulation 1215/2012, new wording in its equivalent of Article 18(1) reverses the effect of this lamentable judgment for cases in which an employee sues an employer and seeks to join a co-defendant. But the decision illustrates the curiously suspicious manner in which the European Court tends to view any attempt to rely on Article 6(1); and the new wording does not appear in the Lugano Convention.

• [1] Of course, they may seek to establish that the anchor defendant was not domiciled in the Lugano State where the action is brought, but in the absence of that defendant’s cooperation, the establishing of the material facts may be very problematic: cf Canada Trust Co v Stelzenberg (No 2) [2002] 1 AC 1. 2 C-462/06, [2008] ECR 1-3965. 3 At [27]. 4 How it persuaded itself of such tosh is a mystery.
• [2] At [28]. Were there to have been a prize for the most bone-headed judgment of the last two decades, this one would be found to have few serious rivals. 2 Or might have resulted, if the anchor defendant had not defaulted in appearance and allowed judgment to be entered in default: Linuzs v Latmar Holdings Corp [2013] EWCA Civ 4. If it is disputed, the court must be satisfied, in the sense that the claimant has the better of the argument, that the link between the claims is established. It is not necessary to show that there is a plausible case on the merits of the claim against the co-defendant: any contention that the claim is so weak does not arise as an objection to jurisdiction but as a basis for an application to strike out: JSC Aeroflot-Russian Airlines v Berezovsky [2013] EWCA Civ 784, [2013] 2 Lloyd’s Rep 242. 3 As it raises distinct and particular issues, the operation of Art. 6(1) in cases concerned with intellectual property rights is dealt with separately, below, para. 15.05. 4 189/87, [1988] ECR 5565. 5 It follows that, if there is no real basis for a claim against DI, but he is merely used as the anchor for the joinder of D2, or if there is no claim against D2 save that he may have documents of which P seeks discovery, the special jurisdiction of Art. 6(1) should not be available. See The Rewia [1991] 2 Lloyd’s Rep 325; Molnlycke v Procter & Gamble £/