Claims made in tort: Paragraph 3.1(9)

The tort gateway to jurisdiction in available for claims ‘made in tort’. If this condition is satisfied, service out of the jurisdiction may be authorised if either of two further conditions is satisfied: that damage was sustained within the jurisdiction, or that damage resulted from an act committed within the jurisdiction. The immediate predecessor to this provision applied where ‘the claim is founded on a tort’.^[1] The question whether this alteration in wording is substantial or merely cosmetic is problematic, and the fact that our rules on international jurisdiction are altered without explanation or consultation is, here, more than usually embarrassing.

The definition of ‘tort’ for this purpose may be a little wider than those wrongs which English domestic law would regard as a tort. The infringement of a patent is a tort, and misuse of private information came to be recognised as a tort. It was held that claims founded on a breach of confidence were not made in tort though they are, along with the misuse of private information, now provided with a dedicated gateway in sub-paragraph (21). As the rules for determination of the applicable law now divide into contractual and non-contractual obligations, it would be convenient if sub-paragraphs (6) to (8), on the one hand, and (9), on the other, could be held to reflect it, even though it is hard to say that this is what the rule-maker had intended.

The rule refers to claims ‘made in tort’. In order to understand what is meant by this form of words, it is necessary to see how the courts interpreted the provision in the predecessor rule, that ‘the claim is founded on a tort’. The use of the indefinite article was found to be significant; and the significance of not reproducing it in the current version of the rule may be equally important.

The decisive case was Metall & Rohstoff AG v Donaldson Lufkin & Jenrette Inc.™ Until that decision, there was a credible view that all a claimant was required to do was to plead a claim which was framed in the language of tort, or to advance a claim whose gist was tortious, but that it was unnecessary to show that the claim was founded on a good cause of action in tort. However, if one were to pay close attention to the wording which required the claim to be founded on ‘a tort’, it was not easy to see how the court could have taken this to require no more than that there was a claim with a ‘tort-like appearance’. The rule said that it required a tort, and a tort is an actual, completed, cause of action. That would mean that there would be a sharp contrast with the corresponding contract rules which did not require then, and do not require now, a completed cause of action for breach of contract. The fact that this may have flowed from the asymmetrical terminology used by English law - contracts are not causes of action, but torts are - may have been an accident, but it was held to be the law.

And as the rule required there to be a tort, satisfaction of this element, if not conceded, had to be demonstrated by reference to the rules of English private international law. At the time of Metall & Rohstoff these were the common law conflicts rules, according to which it was necessary to decide first where the alleged tort was committed, by asking where in substance the cause of action arose.^[2] For causes of action which arose in England, the English domestic law of tort had to be satisfied; for causes of action which arose overseas the claimant was more or less required to show double actionability: liability in tort under English domestic law, and civil liability under the law of the place where the cause of action arose, but with a degree of flexibility in exceptional cases. No doubt the common law conflicts rule would be overwritten by the provisions of the Rome II Regulation if the same analytical framework were still in place today.

It was undeniable that this analysis, which called for an exercise in the conflict of laws to determine whether there was a tort on which the claim could be shown to be founded, was the product of strict interpretation of the legislative text and unassailable logic. It also had the potential to make jurisdictional disputes rather complex. The important question is therefore whether Paragraph 3.1(9) is to be approached in the same way.

Sub-paragraph (9) requires that ‘a claim is made in tort’. Dealing first with the particular case of defamation, Section 9 of the Defamation Act 2013 removes the jurisdiction of the English court unless England is clearly the most appropriate place to bring an action. It follows that unless this condition is met, there is no claim in tort which the English court could try, and the question of service out will not (or should not)²⁰⁰ arise. Of course, if the 2013 Act does confirm the jurisdiction of the court, it is hard to see how an application for permission to serve out could fail.

In cases other than defamation, one may certainly read sub-paragraph (9) as not re-enacting the requirement that there be ‘a tort’, but as requiring no more than that the claim be one which is tortious in nature. If that is so, it opens the gate wider than its predecessor did. It may no longer be necessary to show that there is a good and completed cause of action: some claims fail, and a claim is no less a claim (made in tort) if it fails at trial. It would follow that a claimant now need only plead a claim which would be characterised as one in tort for the purposes of private international law. But it is important not to read too much into this. Though a claimant may not need to show a completed cause of action for the purpose of satisfying sub-paragraph (9),

there will still need to be a serious issue to be tried on the substance of the claim.^[3] As this will ask (unless it is admitted) whether he has a triable cause of action, the complexities of the facts and the private international law of tort will still arise within the framework of the jurisdictional application, albeit at a different point. For this reason, an analysis of the rules of private international law as they apply to claims in tort cannot altogether be avoided at the jurisdictional stage.

The view preferred here, on the ground that it would simplify law which had been allowed to become far too complicated, is that the law has indeed changed, and that it is no longer necessary to demonstrate (a good arguable case that there was) a tort, but only a claim formulated in the nature of tort; but this uncertainty is not to the credit of the law or the law-making process.

It is not yet certain whether a claim is made in tort when it is brought, not by the victim, but by one tortfeasor for a contribution from another tortfeasor. But such a claim does appear to be made in (the context of a) tort," and that should bring it within the rule.

Finally, though the issue whether a court will exercise its power to authorise service to be made out of the jurisdiction does not arise directly at this point, and is examined below in its entirety, it is appropriate to mention at this point the particular significance of the proper place rule in relation to claims made in tort at this point. A predecessor version of the rule allowed service out to be made when a tort had been committed within the jurisdiction. It followed that where the rule was satisfied, England would almost inevitably be the natural forum, the proper place to bring the claim. Not only were the witnesses most likely to be in England, but also, the law which would be applied to the claim by an English court - as well as the law which would be likely to be applied by a foreign court if the matter were brought before it instead - would in all probability be English law. This led to judicial observations which indicated that the place where the tort was committed was very likely to be the natural forum; and the location of the tort was a matter of considerable importance.

It has been made clear, however, that if this is a presumption, it is certainly not a rule. In VTB Capital Pic v Nutritek International Corp²'³ the tort was held to have taken place in England, but the facts of the dispute were still, in the evaluation of the court, overwhelmingly Russian, and this meant that England was not the proper place to bring the claim, or was not the most appropriate place for the trial of the action. Moreover, the rule that a claim characterised as one in tort was governed by the law of the place of the tort has lost its place in English private international law: it is now more likely that the applicable law will, so far as an English court is concerned, be the law of the place where the damage occurred. This may not coincide with the place considered to be that where the tort was committed. It follows that the reasoning in cases in which permission was almost always granted to a claimant who could bring his claim through the tort gateway is not as persuasive as it once was:^[4] the greater the number of claims which are able to pass through the tort gateway, the greater the likelihood that there is a real question whether England would be the proper place to bring the proceedings in respect of those claims.

• [1] RSC Ord. 11, r. 1(1 )(f). An even earlier version of this rule required that there be a tort committed within the jurisdiction. 2 Magnesium Electron Ltd v Molycorp Chemicals & Oxides (Europe) Ltd [2015] EWHC 35596 (Pat), [2016] RPC 663; Fujifilm Biologies Co Ltd v AbbVie Biotechnology Ltd [2016] EWHC 2204 (Pat). 3 Kitechnology BV v Unicor GmbH Plastmaschinen [1995] FSR 765, 777; Vidal-Hall v Google Inc [2015] EWCA Civ 311, [2016] QB 1003. 4 As the rule was originally made before the Rome I and Rome II Regulations, this cannot have formed part of the original rule-making intention; whether it became the intention when more recently the rules were revised (and if so, on which revision?) is impossible to know. 5 [1990] 1 QB 391. 6 But just that the contract was, for example, made in England. Different considerations apply, of course, to sub-paragraph (7), where the jurisdictional rule requires there to be a breach of contract and, therefore, a completed cause of action.
• [2] Distillers Co Ltd v Thompson [1971] AC 458 (product liability: at the place of sale and consumption); Castree v Squibb & Sons Ltd [1980] 1 WLR 1248 (product liability: at the place of sale and use); Bata v Bata [1948] WN 366, Berezovsky v Michaels [2000] 1 WLR 1004 (defamation: where material made available to readers with consequent damage to reputation of victim, not where broadcast from); Diamond v Bank of London & Montreal Ltd [ 1979] QB 333 (negligent misrepresentation: where material received and relied on, not where prepared and transmitted from; but for a conflicting analysis in the context of negligent accountancy advice, see Voth v Manildra Flour Mills Pty Ltd (1991) 171 CLR 538); Metall <& Rohstoff AG v Donaldson Lufkin <£ Jenrette Inc [1990] 1 QB 391, Arab Business Consortium International Finance and Investment Co v Banque Franco-Tunisienne [1997] 1 Lloyd’s Rep 531 (economic torts: where acts were aimed and damage intended to be caused). 2 Boys v Chaplin [1971] AC 356; Red Sea Insurance Co Ltd v Bouygues SA [ 1995] 1 AC 190. 3 For detail, see Dickinson, The Rome II Regulation (OUP, Oxford, 2008, with Supplement, 2010). 4 Collier [1989] All ER Annual Review 49 at 53 summarised, quite brilliantly, why recourse to choice of law rules at a jurisdictional stage may be inappropriate: ‘The method by which the Court of Appeal proceeded entails, in effect, that the defendant’s liability is being tried in order to decide whether the court has jurisdiction to determine the defendant's liability’ 5 Huda v Wells [2017] EWHC 2553 (QB). 6 Hudan v Wells [2017] EWHC 2553 (QB); see also Ahuja v Politika Novine i Magazini doo [2015] EWHC 3380 (QB), [2016] 1 WLR 1414. It may even be that if the jurisdictional requirement in Section 9 is met, the claim is one to which CPR r.6.33(3) applies and no permission is required to serve out, though it is probably better to be safe than sorry. 7 To the standard of a good arguable case.
• [3] CPR r. 6.37(1 )(b); see below, para. 24.40. 2 Until the courts confirm that this is so. 3 See FFSB Ltd v Seward & Kissel LLP [2007] UKPC 16 (PC Bah) (a case on the Bahamian rule, holding that the claim for contribution between tortfeasors fell within the tort rule for service out of The Bahamas); cf Hewden Tower Cranes Ltd v Wolffkran GmbH [2007] EWHC 857 (TCC), [2007] 2 Lloyd’s Rep 138 (a case on the Brussels I Regulation). 4 The Albaforth [1984] 2 Lloyd’s Rep 91; Berezovsky v Michaels [2000] 1 WLR 1004. 5 [2013] UK.SC 5, [2013] 2 AC 337; see also Navig8 Pte Ltd v Al-Riyadh Co for Vegetable Oil Industry [2013] EWHC 328 (Comm), [2013] 2 Lloyd’s Rep 104, [27].
• [4] Cf Erste Group Bank AG r JSCVMZ Red October’ [2015] EWCA Civ 379. 2 Considered in the following paragraph. 3 Metall & Rohstoff, at 437. To put it another way, ‘significant’ does not mean ‘significant when contrasted with the damage sustained outside the jurisdiction’: Qatar Airways Group QCSC v Middle East News FZ LLC [2020] EWHC 2975 (QB). 4 By sharp contrast, in this respect, with the special jurisdiction rule in Art. 5(3) of the Lugano Convention. 5 Cf Berezovsky v Michaels [2000] 1 WLR 1004 (defamation claim in international magazine limited to complaint about dissemination in England); for limitations, see Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75, [2005] QB 946. But now see Defamation Act 2013, Section 9, which removes the jurisdiction of the court in such damage-tailoring cases. 6 It must, however, be the damage done to the original victim, and not ‘loss sustained by the assignee of the claim’, not least because what the assignee advances is the claim of the assignor: Microsoft Mobile OY Ltd v Sony Europe Ltd [2017] EWHC 374 (Ch), [2017] 2 Lloyd’s Rep 119; Man Diesel <£ Turbo SE v IM Skaugen SE [2019] SGCA 80. 7 And Art. 7(2) of the Brussels I Regulation.