The types of proceedings falling within Article 6(2)
It is probable that ‘third-party proceedings’ has a uniform definition. The fact that such proceedings would not be seen in national procedural law as being third-party proceedings is therefore not decisive. According to the Jenard Report, the wording refers to proceedings ‘in which a third party is joined as a party to the action. They are intended to safeguard the interests of the third party, or of one of the parties to the action ...’. They are not confined to those where the defendant joins the third party, but include proceedings where the third party voluntarily appears if this is provided for by national law.
It was held in Kinnear v Falconfilms NV” that even though not all the proceedings which English procedural law permits to be brought against third parties would automatically fall within what is now Article 6(2), if the nexus which was prescribed by the then Rules of Court were satisfied on the facts, that would bring the proceedings within the scope of the Article. Moreover, if there is a sensible, practical reason for bringing defendant and third party before the same court - such as where a defendant tortfeasor is seeking contribution from a third party - the case will fall within both the letter and the spirit of Article 6(2).
It was suggested in The Ikarian Reefer (No 2)a that Article 6(2) may be resorted to when a defendant who has defeated a claim brought against him by the claimant, and has obtained an order for costs, applies under Section 51 of the Senior Courts Act 1981 for an order that a non-party pay all or some of the costs of the action and which the defendant was held to be entitled to recover. Where the application is made by a defendant and the application is made against a non-party, there is some resemblance to a third-party claim made by that defendant; but as the same relief may also be applied for by a claimant, it would not be correct in those circumstances to describe it as a third-party claim, for the respondent is not brought into the action by the defendant. It could perhaps be argued, instead, that the non-party is not being ‘sued’;[1] or (perhaps most helpfully) that proceedings should be seen as part of the enforcement of a judgment, and within the exclusive jurisdiction of the court in which the enforcement is taking place.
The discretion to decline jurisdiction under Article 6(2)
It is now clear that it is, to some extent at least, open to a national court to decline to exercise special jurisdiction under Article 6(2). This follows from the decision in Kongress Agentur Hagen GmbH v Zeehaghe BV,ib and from common sense. In that case, a claim was brought in the Dutch courts against a German defendant. The Dutch courts had special jurisdiction over the defendant under Article 5(1). The German defendant sought to join the third party, also domiciled in Germany, from which it claimed an indemnity. The defendant argued that the Dutch courts had special jurisdiction over the third party under Article 6(2), and that they were therefore obliged to exercise it when it was invoked by a defendant. It appears that the Dutch court was unwilling to exercise jurisdiction over the third party, as the late introduction of the indemnity claim would have complicated the main proceedings which were close to trial. The European Court agreed that though the Dutch court had special jurisdiction over the third party, it was not obliged to exercise it. The question raised by the case before the national court was whether the third-party claim was an admissible one, not whether it had jurisdiction over the third party in respect of it. The answer was that the Dutch court was entitled to apply its procedural law to determine whether the claim was admissible, in other words, to determine whether to exercise the jurisdiction which Article 6(2) gave it.
The immediate decision makes sense. It is one thing to enact a rule that gives jurisdiction over third-party claims, but another to say when that jurisdiction may be, and may not be, exercised. Domestic laws have criteria that specify whether the permission of the court is needed, at what point in the procedure the third party may be joined, and so on. The silence of the Convention upon these matters, which is entirely rational, means that they must be resolved by the procedural law of the court seised. It is inevitable that there will be circumstances in which the court has special jurisdiction but, under its own procedural rules, will have reason to not exercise it. All that is required of the national court is that it refrain from operating its procedural rules in such a way as to undermine the practical effect of the Convention.
In an English court, the procedural rules in CPR Part 20 in particular will affect the operation of Article 6(2). It appears desirable, however, that national courts be as willing as possible to take jurisdiction over third-party proceedings.[2] In Hagen, a decision by the Dutch courts that the defendant was liable to the claimant would not obviously be conclusive of the liability of the defendant when he makes a later claim, in separate proceedings, against the third party for an indemnity: the third party may not be prevented from contesting, as against himself, the findings made by a court in proceedings to which he was not party. There is, therefore, a risk of irreconcilable verdicts, or at least procedural complication, if the claim against the third party is not heard with the main proceedings; and the court seised of the main proceedings should only be permitted on narrow and compelling grounds to decline to exercise jurisdiction over the third-party claim. If it is otherwise, the practical effect of the Convention, as a means of preventing irreconcilable judgments, will indeed be jeopardised.
- [1] See Chapter 5, above. 2 See Chapter 7, above. 3 C-365/88, [1990] ECR 1-1845. 4 Cf the irrelevance of admissibility under national law in C-103/05 Reisch Montage AG v Kiesel Baumaschtnen Handels GmbH [2006] ECR 1-6827. 5 Schlosser [1979] OJ C59/71, [135]. 6 For example, by refusing to accept jurisdiction on the simple basis that the third party is domiciled in another Lugano State: that would directly contradict a jurisdictional rule of the Convention. In fact, in Hagen, there would be a possible risk of irreconcilable verdicts created by the non-exercise of jurisdiction by the Dutch court, unless the Dutch proceedings were held to be conclusive of the liability of the defendant to those proceedings when he later sues in Germany for the indemnity, which seems unlikely, as the party against whom that judgment is intended to be used was not party to the original proceedings at all.
- [2] Cf Kinnear v Falconfilms A't' [ 1996] 1 WLR 920. 2 To the claimant. 3 In English law he will not normally (but see House of Spring Gardens Ltd v Waite [1991] 1 QB 241) be bound by a decision to which he was not party. The provisions of CPR r. 19.8A concerning ‘notice parties’ are restricted to cases relating to the estate of a deceased person or property subject to a trust. 4 For one reason, if the original action is collusively lost by the defendant to enable him to bring a claim against the guarantor, this should not prejudice the guarantor. But if the first action were to be decisive of the liability of the defendant to the claimant, the guarantor would lose the opportunity to challenge the legal basis of his liability. 5 Of course, if he is not domiciled in a Lugano State, this provision and its limitation do not apply to the counterclaim: Balkanbank v Taher [1995] 1 WLR 1067.
