498 | CIVIL JURISDICTION

Where Art 5(1)(a) applies, once the relevant contractual obligation has been identified, the place of its performance must be determined, and in this respect the Regulation does not seem to have altered the position. In Tessili v Dunlop93 and Groupe Concorde v ‘The Suhadiwarno Panjan’,94 the European Court ruled that this concept does not have an independent meaning. Rather, the place of performance must be determined in accordance with the substantive law that is applicable to the obligation under the conflict rules of the forum country. Usually, the relevant substantive law will be the proper law of the contract, determined under Arts 3 and 4 of the Rome Convention 1980 or the Rome I Regulation.95 Moreover, as the European Court ruled in Zelger v Salinitri (No 1),96 the same substantive law also governs the formal requirements applicable to an express agreement as to the place of performance. Those laid down by Art 23, on agreements as to jurisdiction, do not apply to an agreement specifying a place of performance.Thus, an entirely informal agreement on the place of performance of an obligation will be effective under Art 5(1), if the applicable substantive law imposes no formal requirements.

. 97

However, in MSG v Les Gravieres Rhénanes, the European Court made clear that this approach applies only to a genuine agreement, designed to determine the place of actual performance. A fictitious agreement, purporting to specify the place of performance, but in reality designed only to establish jurisdiction, is not effective under Art 5(1), but must be treated as an agreement on jurisdiction governed by Art 23.

Where the defendant is not domiciled in any EU member state or Lugano Convention country, the English courts may, in their discretion, assume jurisdiction over a claim that relates to a contract in each of the following cases: where the contract was made in England, where the contract was made by or through an agent trading or residing in England, where the contract is governed by English law, or where the claim is in respect of a breach of contract committed in England.98

Tort claims

By Art 5(3) of the Regulation, the English courts have jurisdiction to entertain an action in tort against a defendant domiciled in another member state if the harmful event occurred or may occur in England.99 It is enough that either the wrongful conduct or the initial injury occurred in England,100 but it is not enough that the claimant suffered in England loss consequential on an initial injury sustained elsewhere (whether by the claimant himself or by an associated person, such as a sister company).101

performance of the obligation in question. See also Dunhill v Diffusion Internationale de Maroquinerie de Prestige [2002] ILPr 13 (on damages for fraudulent or negligent misrepresentation). The decision of the House of Lords in Agnew v Länsförsäkringsbolagens [2001] 1 AC 223, accepting jurisdiction under Art 5(1) of the Lugano Convention over an action brought by a reinsurer seeking avoidance of the reinsurance contract for breach of the duty to make a fair presentation of the risk by giving full disclosure and avoiding misrepresentation in the negotiations, conducted in England, leading to the conclusion of the contract, seems impossible to reconcile with the subsequent decision of the European Court in Tacconi v Wagner.

93Case 12/76: [1976] ECR 1473.

94Case C-440/97: [1999] ECR I-6307. See also per Alber AG in Case C-256/00: Besix v WABAG [2002] ECR I-1699.

95See Case C-440/97: Groupe Concorde v ‘The Suhadiwarno Panjan’ [1999] ECR I-6307; and Raiffeisen Zentralbank v National Bank of Greece

[1999] 1 Lloyd’s Rep 408. On the Rome Convention 1980 and the Rome I Regulation, see Chapter 17 below.

96Case 56/79: [1980] ECR 89.

97Case C-106/95: [1997] ECR I-911. See also Gotz v Noge (1996) unreported, 27 February (French Court of Cassation).

98See the Civil Procedure Rules 1998 (as amended), r 6.36; and Practice Direction B, para 3.1(6)–(7).

99See Case C-167/00: VKI v Henkel [2002] ECR I-8111; Cases C-509/09 and C-161/10: eDate Advertising v X and Martinez v MGN, 25 October 2011; and r 3(c) of Sched 4 to the Civil Jurisdiction and Judgments Act 1982 (as amended). In Case C-133/11: Folien Fischer v Ritrama, 25 October 2012, the European Court ruled that Article 5(3) extends to an action for a negative declaration seeking to establish the absence of liability in tort. Where the defendant is not domiciled in any EU member state or Lugano Convention country, the English courts have a similar but discretionary jurisdiction under r 6.36 of the Civil Procedure

Rules 1998 (as amended) and Practice Direction B, para 3.1(2) and (9).

ˇ

100 See Case 21/76: Bier v Mines de Potasse d’Alsace [1976] ECR 1735; and Case C-343/04: Land Oberösterreich v CEZ [2006] ECR I-4557. 101 See Case 220/88: Dumez v Hessische Landesbank [1990] ECR I-49; Case C-364/93: Marinari v Lloyd’s Bank [1995] ECR I-2719; Case

C-51/97: Réunion Européenne v Spliethoff’s Bevrachtingskantoor [1998] ECR I-6511; Case C-168/02: Kronhofer v Maier [2004] ECR I-6009.

With regard to a product liability claim against a manufacturer, the European Court ruled in Zuid-Chemie v Philippo's Mineralenfabriek102 that Art 5(3) confers jurisdiction on the courts for the place of manufacture, which counts as the place of the wrongful conduct, and on the courts for the place where the initial injury to the plaintiff's person, or the initial damage to the plaintiff’s other property, occurred as a result of the normal use of the product for the purpose for which it was intended, which counts as the place of injury.

In the context of defamation by newspaper article, the European Court ruled in Shevill v Presse Alliance103 that the place of the wrongful conduct is that of the publisher’s establishment from which the libel was issued and put into circulation, and the courts for that place have jurisdiction to award damages for all the harm caused anywhere by the defamation. In addition, by enabling the claimant to sue at the place of injury, Art 5(3) confers jurisdiction on the courts of any member state in which the newspaper was distributed and where the victim claims to have suffered injury to his reputation, but such jurisdiction is limited to the harm caused in the forum state. The same principles apply to a television broadcast.104

However, in eDate Advertising v X and Martinez v MGN,105 the European Court distinguished Shevill and laid down a new rule in respect of the operation of Art 5(3) in relation to claims for defamation or invasion of privacy by means of a publication on an Internet website. In the event of an alleged infringement of personality rights by means of content placed online on an Internet website, the person who considers his rights infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the member state in which the publisher of that content is established or before the courts of the member state in which the plaintiff’s centre of interests is based. The plaintiff may also, instead of suing in respect of all the damage caused, bring his action before the courts of each member state in whose territory content placed online is or has been accessible, but those courts have jurisdiction only in respect of the damage caused in the territory of the forum state. The place where a person has the centre of his interests corresponds in general to his habitual residence, but a person may also have the centre of his interests in a member state in which he does not habitually reside, where other factors, such as the pursuit of a professional activity, establish the existence of a particularly close link with that state.

As regards the tort of inducing breach of contract, jurisdiction exists at the place where the most important breaches induced occurred and the plaintiff suffered direct financial loss, even though the defendant’s acts of inducement took place elsewhere, as well as at the place where the inducing act was committed, as the place of the wrongful conduct.106 As regards the tortious interference with a contract of carriage of goods by the arrest of the carrying vessel, the place of the relevant conduct is the place where the arrest takes place, rather than the place where the decision to arrest is made.107

With regard to liability for false statements made by the defendant and relied on by the claimant, jurisdiction exists at the place where the statement was issued by the defendant (as the place of the wrongful act), as well as at the place at or from which goods were delivered or money was paid

Cf Case C-18/02: DFDS Torline v SEKO [2004] ECR I-1417, where, in the context of an action in Denmark seeking to establish the illegality of a notice of industrial action (‘blacking’) given by a Swedish trade union acting in the interests of the Polish crew of a Danish ship operating between Sweden and England, the European Court ruled that the nationality or flag of the ship is decisive only if the national court reaches the conclusion that the damage arose on board the ship.

102Case C-189/08, [2009] ECR I-6917. The case involved a claim by a manufacturer of a finished product (a fertiliser) against a manufacturer an intermediate product used in the manufacture of the final product.

103Case C-68/93: [1995] ECR I-415. See also Berezovsky v Michaels [2000] 1 WLR 1004 (HL), applying the same principles to an American defendant under the predecessor of r 6.36 of the Civil Procedure Rules 1998 (as amended) and Practice Direction B, para 3.1(9).

104See Ewins v Carlton Television [1997] 2 ILRM 223.

105Cases C-509/09 and C-161/10, 25 October 2011.

106See Metall und Rohstoff v Donaldson Lufkin and Jenrette [1990] QB 391 (CA); and Equitas v Wave City Shipping [2005] EWHC 923.

107See Anton Durbeck v Den Norske Bank [2002] EWCA Civ 1173; partly reversed on other grounds [2003] QB 1160 (CA).

as a result of the plaintiff’s reliance on the statement (as the place of injury), but not at the place where the statement was merely received by the claimant and he acted in reliance on it by taking decisions or giving instructions leading to the delivery or payment.108

As regards the tortious conversion of goods by their detention and use, Art 5(3) confers jurisdiction on the court for the place of the detention and use, and not on the court for the place at which the claimant suffered consequential loss, because (for example) the detention of master tapes prevented his exploitation there of his copyright in the sound recordings embodied in the tapes.109 As regards the fraudulent conversion of corporate funds by an officer of the company, where the officer diverts funds received from a customer abroad into his own bank account, the place where his bank account is kept counts as the place of injury, even if the funds are transferred from the customer’s account in another country; and where the officer removes funds from a corporate bank account into his own bank account, the place where the corporate bank account is kept counts as the place of conduct, even if the funds are transferred to the officer’s own account in another country.110

As regards passing off, jurisdiction over a manufacturer of deceptively packaged goods exists at the place where he manufactured the goods and delivered them for export, as that of the wrongful conduct, and also at the place where the goods were subsequently sold to a deceived public, as the place of injury, but not elsewhere, such as at the claimant’s domicile, where he ultimately suffered loss by receiving fewer orders.111 In respect of actions for infringement of a specific intellectual property right, such as a patent, a copyright or a registered trade mark, Art 5(3) confers jurisdiction on the courts of the Member State by which the intellectual property right was created and in which the alleged infringement occurred, as the courts for the place of injury; and also on the courts of the Member State in which is located the defendant’s establishment involved in the allegedly infringing activity, as the courts for the place of conduct.112

It is now clear that Art 5(3) extends beyond tort113 to cover other liabilities that are not contractual matters within the scope of Art 5(1), such as restitutionary obligations, which are unconnected with any contract or arise from the invalidity of a contract, and claims arising from misconduct in negotiations leading or designed to lead to the conclusion of a contract. This has been established by decisions of the European Court applying Art 5(3): in Kalfelis v Schröder,114 to a restitutionary claim arising from the invalidity of a contract; in Tacconi v Wagner,115 to an action founded on pre-contractual liability for damage caused by the unjustified breaking off of negotiations with a view to the formation of a contract, in breach of a rule requiring parties to act in good faith in such negotiations;

108See Domicrest v Swiss Bank Corp [1999] QB 548; Dunhill v Diffusion Internationale de Maroquinerie de Prestige [2002] ILPr 13; Raiffeisen Zentralbank v National Bank of Greece [1999] 1 Lloyd’s Rep 408; ABCI v Banque Franco-Tunisienne [2003] 2 Lloyd’s Rep 146 (CA); Bank of Tokyo-Mitsubishi v Baskan Gida [2004] ILPr 26; London Helicopters v Heliportugal [2006] 1 All ER (Comm) 595; and Crucial Music Corporation v Klondyke Management [2008] 1 All ER (Comm) 642.

109See Mazur Media Ltd v Mazur Media Gmbh [2004] EWHC 1566 (Ch) (Lawrence Collins J). See also Bank of Tokyo-Mitsubishi v Baskan Gida

[2004] ILPr 26 (Lawrence Collins J), at para 218.

110See Cronos Containers v Palatin [2003] 2 Lloyd’s Rep 489 (Morison J).

111See Modus Vivendi v Sanmex [1996] FSR 790; and Mecklermedia v DC Congress [1998] Ch 40.

112See Case C-523/10: Wintersteiger v Products 4U, 19 April 2012. See also ABKCO v Music Collection [1995] RPC 657 (CA); and IBS v APM [2003] All ER (D) 105 (Apr).

113See also Case C-18/02: DFDS Torline v SEKO [2004] ECR I-1417, which involved an action in Denmark seeking to establish the illegality of a notice of industrial action (‘blacking’) given by a Swedish trade union acting in the interests of the Polish crew of a Danish ship operating between Sweden and England. The European Court ruled that Art 5(3) extends to an action concerning the legality of industrial action, in respect of which, under the law of the member state concerned, exclusive jurisdiction belongs to a court other than the court that has jurisdiction to try the claims for compensation for the damage caused by the industrial action.

114Case 189/87: [1988] ECR 5565.

115Case C-334/00: [2002] ECR I-7357.

and in VKI v Henkel,116 to an action brought by a consumer protection organisation for the purpose of preventing a trader from using unfair terms in contracts with private individuals. Its ruling in Reichert v Dresdner Bank (No 2),117 refusing to apply Art 5(3) to an application by a creditor for the setting aside of a transfer of property by his debtor on the ground that it was made in fraud of the creditor’s rights, must be understood as based on the proprietary, as distinct from obligational, character of the claim. It seems clear from the line of European Court rulings that, as regards Art 5(3), the decisions of the House of Lords in both Kleinwort Benson118 and Agnew119 must now be recognised as erroneous.

It is also clear that Art 5(3) extends to equitable wrongs (in so far as the claim is not based on a breach of contract or of an express or statutory trust),120 such as the misuse of confidential information, dishonest assistance in a breach of trust or knowing receipt of trust property.121 Moreover, where a claimant is entitled to frame his claim alternatively in contract and tort, his claim in tort falls within Art 5(3).122

Ancillary jurisdiction

The Regulation recognises the desirability, in the interests of the sound administration of justice and of reducing the risk of conflicting judgments, for related disputes to be decided together in a single proceeding. Article 6 gives positive effect to this principle by providing for ancillary jurisdiction over co-defendants, third parties and counterclaims and by enabling a court exercising exclusive jurisdiction over a right in rem in land to entertain a related contractual claim against the same defendant, even if the court would not have had jurisdiction to entertain the additional claim in its own right. The principle is also given negative effect by Arts 27–30, which endeavour to prevent simultaneous actions in different member states in respect of similar or related disputes by requiring or encouraging the court subsequently seised to decline jurisdiction, or at least stay its proceedings, in favour of the court first seised. However, the Regulation does not ensure that, in all cases, a court properly seised of one claim will also be competent to entertain a related claim by the same claimant against the same defendant,123 and it is possible for contracting parties to exclude the operation of Art 6 between themselves by means of a clearly worded agreement on jurisdiction complying with Art 23.124

116Case C-167/00: [2002] ECR I-8111.

117Case C-261/90: [1992] ECR I-2149.

118Kleinwort Benson v City of Glasgow District Council [1999] AC 153.

119Agnew v Länsförsäkringsbolagens [2001] 1 AC 223.

120Article 5(6) confers jurisdiction over a defendant domiciled in another member state, when he is sued as settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, on the courts of the member state in which the trust is domiciled. For this purpose, by Art 60(3), the court seised applies its own law to determine the domicile of a trust; and, by Art 12 of the Civil Jurisdiction and Judgments Order 2001, a trust is domiciled in England if English law is the law with which the trust has its closest and most real connection. As Lawrence Collins J ruled in Chellaram v Chellaram (No 2) [2002] 3 All ER 17, this test must be applied as of the date when the proceed-

ings are instituted, and in the light of the Hague Convention 1985 on the Law Applicable to Trusts and on their Recognition and the Recognition of Trusts Act 1987. In Gomez v Gomez-Monche Vives [2009] 1 All ER (Comm) 127, the Court of Appeal (per Lawrence Collins LJ) explained that, in view of the primacy given to an express choice by the Hague Convention 1985 and the

Recognition of Trusts Act 1987, an express choice in a trust instrument of English law as the law governing the trust will now be sufficient to ensure that, for the purpose of Art 5(6), the trust has its closest connection with English law and thus is domiciled in England. It is thought that claims falling within Art 5(6) are excluded from Art 5(3).

121See Kitechnology v Unicor [1995] FSR 765 (CA); Casio Computer v Sayo [2001] ILPr 43 (CA); Dexter v Harley (2001) The Times, 2 April; and

WPP v Benatti [2007] 2 All ER (Comm) 525 (CA). See also, as regards defendants not domiciled in any EU member state or Lugano Convention country, r 6.36 of the Civil Procedure Rules 1998 (as amended) and Practice Direction B, para 3.1(15) and (16).

122See Case 189/87: Kalfelis v Schröder [1988] ECR 5565; and WPP v Benatti [2007] 2 All ER (Comm) 525 (CA).

123See Case 189/87: Kalfelis v Schröder [1988] ECR 5565; Case 150/80: Elefanten Schuh v Jacqmain [1981] ECR 1671; Case C-51/97:

Réunion Européenne v Spliethoff’s Bevrachtingskantoor [1998] ECR I-6511; and Case C-420/97: Leathertex v Bodetex [1999] ECR I-6747.

124See Case 23/78: Meeth v Glacetal [1978] ECR 2133; and Hough v P&O Containers [1999] QB 834.

Co-defendants

By Art 6(1), a person domiciled in a member state may be sued where he is one of a number of defendants in the courts for the place where any one of them is domiciled, provided that the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.125 The relevant date for ascertaining whether one of the defendants is domiciled in England, so as to enable the joinder of a co-defendant domiciled in another member state, is that of the issue of the claim form initiating the proceedings against the allegedly English defendant, not that of service on him, nor that of the subsequent joinder of the foreign defendant.126 Article 6(1) extends to a counterclaim, so as to enable a defendant who counterclaims against an English plaintiff to join a foreign co-defendant to the counterclaim, and even to claims by a third party (joined by a defendant) against English and foreign plaintiffs, or against an English defendant (who joined the third party) and a foreign plaintiff.127 However, the claims against the anchor defendant and the additional defendant must be made by the same claimant. It is not enough that a similar claim against both defendants is made in the same action by another claimant, even if the claimants are companies belonging to the same group.128 Moreover, there is no provision enabling joinder of a co-defendant as such, if he is domiciled in another member state, in an action against another defendant who is domiciled in a non-member state.129

As regards the sufficiency of the connection between the claims against the English and foreign defendants, it has been accepted in England that a broad approach must be applied in the determination of the risk of irreconcilable decisions, so as to include inconsistent findings of fact, rather than one based on close analysis of the respective claims, and that there need only be a risk, rather than a certainty, of irreconcilable decisions.130 Thus, Art 6(1) has been used to enable an English purchaser of a French horse, who was suing his English agent who had acted in the purchase, to join as a co-defendant a German veterinary surgeon who had been engaged to examine and report on the condition of the horse, the claims against both defendants being for negligence in advising in favour of the purchase.131 Joinder has also been allowed where the English and foreign defendants were both alleged to have assisted dishonestly in breaches of fiduciary duty at different stages in the operation of a fraudulent scheme to misappropriate a sum belonging to the plaintiff;132 where claims against an English individual and a foreign company related to similar contracts negotiated together by the individual with the claimant, one on his own behalf and the other on behalf of the company;133 where the claims were against a Swiss company, sued as employer for breach of a service agreement, and its English parent company, sued as guarantor of the service agreement, and on a related agreement for further remuneration, and for inducing breach of the service agreement;134 where the claim against the English defendant was for damages for breach of contract, and the claim against a foreign defendant was for a declaration of non-liability under another contract, and the existence of the plaintiff’s

125See to similar effect r 5(a) of Sched 4 to the 1982 Act (as amended).

126See Canada Trust v Stolzenberg (No 2) [2002] 1 AC 1; and Petrotrade v Smith [1998] 2 All ER 346.

127See Aiglon v Gau Shan [1993] 1 Lloyds Rep 164; and SCOR v Eras (No 2) [1995] 2 All ER 278.

128See Madoff Securities v Raven [2011] EWHC 3102 (Comm).

129See Case C-51/97: Réunion Européenne v Spliethoff’s Bevrachtingskantoor [1998] ECR I-6511.

130See Bank of Tokyo-Mitsubishi v Baskan Gida [2004] ILPr 26, at paras 188 and 216.

131See Gascoine v Pyrah [1994] ILPr 82 (CA).

132See Casio Computer v Sayo [2001] EWCA Civ 661 (CA). Cf The Xing Su Hai [1995] 2 Lloyd’s Rep 15, refusing to allow joinder where the claim against the English defendant was merely for disclosure of information about the location of assets of the foreign defendants; and Messier Dowty v Sabena [2000] 1 WLR 2040 (CA), refusing to allow joinder where the plaintiff’s claim was for declarations of non-liability, and the foreign defendant had made no claim against the plaintiff.

133See Latchin v General Mediterranean Holidays [2002] CLC 330.

134See King v Crown Energy [2003] ILPr 28.

liability to the foreign defendant would affect the assessment of damages in respect of the plaintiff’s claim against the English defendant;135 and where the claims were for indemnity by an insurer against English and Swiss reinsurers, who had each reinsured part of the risk on similar terms in the context of a common reinsurance programme and by way of contracts governed by English law.136

In contrast, the rulings of the European Court on Art 6(1) have been unusually confused and vacillating. The Court has eventually accepted that it is not necessary that the claims against the local and foreign defendants should have the same legal basis, a requirement that would have prevented the joinder of a tortious claim against a foreign defendant to a contractual claim by the same plaintiff against an English defendant in respect of the same loss.137 However, in Roche Nederland BV v Primus,138 it insisted that there must be a risk of contradictory decisions and that the divergence must arise in the context of the same situation of law and fact. No such divergence arose in the case of claims for infringement of a European patent, granted for several member states, against several defendants, domiciled in different member states, each being sued for an infringement committed in the state of its domicile. However, this requirement has been interpreted flexibly in subsequent rulings.

Thus, in Painer v Standard VerlagsGmbH,139 which involved an action for infringement of copyright brought in an Austrian court by a photographer against various Austrian and German newspapers which had published copies of her photographs, and the possible application of Art 6(1) so as to enable the joinder as co-defendants of German defendants whose newspapers had been published only in Germany, the anchor defendant being an Austrian newspaper, the European Court ruled that the application of Art 6(1) is not precluded solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds that vary according to the member states concerned. It explained that a difference in legal basis between the actions brought against the various defendants does not, in itself, preclude the application of Art 6(1), provided that it was foreseeable by the defendants that they might be sued in the member state where at least one of them is domiciled.This is especially so where the national laws on which the actions against the various defendants are based are substantially identical, and the fact that defendants against whom a copyright holder alleges substantially identical infringements of his copyright did or did not act independently may be relevant.

Similarly, in Solvay v Honeywell,140 which involved an action in a Dutch court against Dutch and Belgian companies for patent infringements committed in various Member States, the European Court ruled that a risk of irreconcilable judgments, as required by Art 6(1), may exist in a situation where two or more companies from different member states, in proceedings pending before a court of one of those member states, are each separately accused of committing an infringement of the same national part of a European patent that is in force in yet another member state, by virtue of their performance of reserved actions with regard to the same product. For if two courts were involved, they would, for example, be called on to assess, according to the same Finnish law, the infringement of the Finnish part of the European patent by the defendant companies as a result of the marketing of an identical infringing product in Finland.

As well as a sufficient connection between the claims against the local and foreign defendants, it had been established by abundant case-law in England and Ireland that it is necessary under Art 6(1)

135See FKI Engineering v De Wind Holdings [2009] 1 All ER (Comm) 118 (CA).

136See Gard Marine v Tunnicliffe [2010] EWCA Civ 1052.

137See Case C-98/06: Freeport v Arnoldsson [2007] ECR I-8319; overruling a dictum in Case C-51/97: Réunion Européenne v Spliethoff’s Bevrachtingskantoor [1998] ECR I-6511.

138Case C-539/03: [2006] ECR I-6535.

139Case C-145/10, 1 December 2011.

140Case C-616/10, 12 July 2012. See also Case C-645/11: Land Berlin v Sapir, 11 April 2013.

that the claim against the local defendant should be plausible, or seriously arguable, and not made solely for the purpose of enabling the foreign defendant to be joined.141 However, in Reisch Montage v Kiesel Baumaschinen,142 the European Court rejected the requirement that the claim against the local defendant must be seriously arguable, and ruled that joinder under Article 6(1) is possible, even if the action against the local defendant is regarded under a national provision as inadmissible from the time when it is brought, for example, by reason of insolvency proceedings. However, the European Court now accepts that Article 6(1) cannot be interpreted or applied in such a way as to allow an applicant to make a claim against a number of defendants with the sole object of ousting the jurisdiction of the courts of the state where one of those defendants is domiciled.143 Meanwhile, the English courts have continued to require that the claim against the English defendant must be seriously arguable.144

Where the co-defendant whose joinder as such is sought is not domiciled in any EU member state or Lugano Convention country, the English court has discretion to join him if he is a necessary or proper party to a claim made against another person who has been or will be served, and involving a real issue that it is reasonable for the court to try.145

Third parties

By Art 6(2), a person domiciled in a member state may also be sued as a third party in third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case.146 In Hagen v Zeehaghe,147 the European Court made clear that this power of a defendant to join a third party applies regardless of the basis of the court’s jurisdiction over the defendant, which could be based, as in that case, on Art 5(1), or presumably, on any other provision of Chapter II, including Arts 4 or 24.148 It also ruled that the procedural admissibility of a third party proceeding in nonterritorial respects is governed by the law of the court seised, provided that the effectiveness of the EU legislation is not impaired, but that leave to join a third party cannot be refused on the ground that the third party resides or is domiciled in another member state.Thus, as Rix J recognised in Caltex v Metro,149 Art 6(2) requires there to be a proper connection between claim and third party claim such as would be recognised by the forum’s own third party statute (in England, Part 20 of the Civil Procedure Rules 1998); however, it is not permissible to exercise a forum non conveniens discretion in

relation to Art 6(2).

As regards the proviso to Art 6(2), in Hough v P&O Containers,150 Rix J explained that this is confined to situations where the claimant and the defendant are effectively in collusion to bring a claim against a third party in an otherwise incompetent forum; or where, even without collusion, the

141See The Rewia [1991] 2 Lloyd’s Rep 325 (CA); The Xing Su Hai [1995] 2 Lloyd’s Rep 15; Holding Oil v Marc Rich (1996) unreported, 27 February (CA); Messier Dowty v Sabena [2000] 1 WLR 2040 (CA); Bank of Tokyo-Mitsubishi v Baskan Gida [2004] ILPr 26, at para 217; and Andrew Weir Shipping Ltd v Wartsila UK Ltd [2004] EWHC 1284 (Comm).

142See Case C-103/05: Reisch Montage v Kiesel Baumaschinen [2006] ECR I-6827.

143See Case C-145/10: Painer v Standard VerlagsGmbH, 1 December 2011, and Case C-616/10: Solvay v Honeywell, 12 July 2012; overruling on this point Case C-98/06: Freeport v Arnoldsson, [2007] ECR I-8319.

144See FKI Engineering v De Wind Holdings [2009] 1 All ER (Comm) 118 (CA), and Madoff Securities v Raven [2011] EWHC 3102 (Comm).

145See r 6.36 of the Civil Procedure Rules 1998 (as amended), and Practice Direction B, para 3.1(3).

146See to similar effect Art 6(2) of the Lugano Convention, and rule 5(b) of Sched 4 to the 1982 Act (as amended). For English jurisdiction over a third party who is not domiciled in any EU member state or Lugano Convention country, see the Civil Procedure Rules Part 20 and r 6.36, and Practice Direction B, para 3.1(4).

147Case 365/88: [1990] ECR I-1845.

148See Veenbrink v BIAO (1992) unreported, 14 May (French Court of Cassation), permitting the use of Art 6(2) where jurisdiction over the main action was governed by Art 4.

149[1999] 2 Lloyd’s Rep 724.

150[1999] QB 834.