Jurisdiction over the third party
Where the proceedings are brought against a third party, it is obvious that Article 6(2) may not be invoked if this would contradict a jurisdiction agreement between the defendant and the third party; the point has arisen and has been decided in a predictable and correct fashion. If this appears to put the defendant in an awkward position, or to be contrary to the public interest in obtaining a single, consistent and efficient resolution of connected matters which are in dispute, the only response is that a better-drafted jurisdiction agreement could have provided for this situation, and it is for the parties, and not for the court, to draft the agreements that serve their interests and needs.
It has been held that, in rare cases, the Article may be applied to claims brought by a third party for a contribution from a party (in casu, the defendant) to the main proceedings. In SOVAG v If Vahinkovakuutusyhtiô Oyf the employer’s Finnish insurer, intervening as a third party in the proceedings brought in Finland as a direct action by the victim against the tortfeasor’s German insurer, sought reimbursement of the sums which Finnish law had obliged it to pay to the victim-employee. It was held that the Finnish insurer’s claim fell within Article 6(2), and that (with an eye to the issue discussed in the next paragraph) it could be brought so long as the third party was not bringing its proceedings with the sole object of removing the liability insurer from the courts of its domicile. As all the claims were genuine, there seemed to be no possibility of such fault being found.
Proceedings brought to deprive third party of the court of his domicile
By contrast with the convoluted analysis which has troubled the case law on Article 6(1), it is expressly provided in Article 6(2) that ‘these’ proceedings must not have been instituted ‘solely with the object of removing [the third party] from the jurisdiction of the court which would be competent in his case’. The difficulty is that when the Article provides that ‘these’ proceedings must not have been instituted with this improper object, it is not clear whether the reference is to the main proceedings brought by the claimant against the defendant, or the proceedings brought by the defendant against the third party.
An initial response might be that it is not easy to see how this condition can be applied rigorously, whichever way it is read. At the jurisdictional stage, especially in England in which jurisdiction is finally decided before any step is taken towards determination of the merits of the dispute, there is limited scope for a detailed examination of the merits of the claim, and not much more scope for an examination of the motivation of the claimant and defendant in doing what they have done. Having said that, it was made clear in the Jenard Report[1] that the material question was whether the original proceedings between claimant and defendant, not the third-party proceedings between defendant and third party, appeared to have been brought solely with the object of removing the third party from the courts of his domicile. This would suggest that the impropriety or abuse which the qualification had in its sights was collusion between claimant and defendant with the aim of disadvantaging the third party. This still seems to be the rational interpretation of any such limitation.
In GIE Réunion Européenne v Zurich España16 the Court stated that it was the third-party proceedings, rather than the main proceedings, which were required to satisfy the condition of not having been brought for this improper purpose. Quite apart from the fact that the judgment has departed from the advice of Jenard, it is difficult to see what this might mean in practice, for if the defendant does have a claim against the third party, which arises from or is connected to the claim which he is defending in the main proceedings, it should be dealt with in third-party proceedings. If that is not so, the defendant, if he loses against the claimant, will have to assert his claim, and his liability (which originally he denied, which is awkward) as providing the basis for that claim, in separate proceedings. The ‘third party’, who was not party to the original proceedings, will not be bound to accept that the person claiming against him really was liable to the original claimant, and the problem rapidly spins out of control.
The practical solution may be to note the discrepancy between the Jenard Report and the judgment, but to conclude that unless the effect of the application of Article 6(2), and the joinder of the third party by the defendant, is shown to be a plain and obvious abuse of process, it will satisfy the requirements of Article 6(2). Only where one of the two[2] claims seems to be spurious, or not advanced in good faith, should the court be expected to make further enquiry. And the use of ‘solely’ should ensure that this remains a very infrequent objection to the special jurisdiction of the court seised of the main proceedings.
- [1] C-521/14, EU:C:2016:41, [2016] QB 780. 2 [1979] OJ C59/1.28. 3 This is the plain interpretation taken in Hough v P & O Containers Ltd [1999] QB 834 (‘where the plaintiff and defendant are effectively in collusion to bring a claim against a third party in the plaintiff’s or defendant’s domicile ...’), which derived its answer from the Jenard Report. 4 C-77/04, [2005] ECR 1-4509, [29].
- [2] Original, and third party. 2 [1979] OJ C59/1, 28. 3 [1996] 1 WLR 920. 4 Then RSC Order 16, r. 1(1); now replaced by CPR Part 20, which describes these, and others, as ‘Part 20 claims'. The test of nexus has been diluted, and now appears in CPR r. 20.9. 5 For the other aspects of such claims, see Arab Monetary Fund v Hashim (29 July 1994; noted [1995] LMCLQ 437; also Roberts v SSAFA [2020] EWCA Civ 926, though the case is not concerned with jurisdiction). For the analogous situation of one insurer seeking a contribution from a co-insurer, see C-77/04 (HE Réunion Européene v Zurich España [2005] ECR 1-4509. See also Roberts v SSAFA [2016] EWHC 2744 (QB). 6 This not being the basis on which the court preferred to rest its conclusion that it had jurisdiction. 7 [2000] 1 WLR 603.
