Flux européens

Commission / Suède (Contrôle de l’acquisition et de la détention d’armes)
Rapprochement des législations
Manquement d’État : la Suède est condamnée à payer 8 500 000 euros pour transposition tardive de la directive modifiée sur les armes

Všeobecná úverová banka
Clause abusive d’un contrat de crédit à la consommation garanti par le logement familial : le juge doit apprécier la proportionnalité entre la faculté du professionnel d’exiger la totalité du prêt et la gravité de l’inexécution par le consommateur

Gesamtverband Autoteile-Handel (Accès aux informations sur les véhicules)
Rapprochement des législations
Les constructeurs automobiles doivent mettre les numéros d’identification des véhicules à la disposition des opérateurs indépendants

Google Ireland e.a.
Liberté d'établissement
Lutte contre les contenus illicites sur Internet : un État membre ne peut pas soumettre un fournisseur d’une plate-forme de communication établi dans un autre État membre à des obligations générales et abstraites

X v Y (yep, annoying and entirely without reason, an anonymous judgment) ECLI:NL:RBLIM:2023:4342 is an interesting illustration of Brussels Ia’s Article 7(1)(a’)s ‘looking over the fence’ aka the conflicts method for determining forum contractus.

The method implies that beyond the standard contractual categories for which Article 7(1)(b) locks in forum contractus as a European ius commune, the ‘place of performance of the obligation in question’ needs to be determined by provisionally identifying the lex contractus and then using that lex contractus to determine place of performance, leading to a conclusion whether the judge seized has jurisdiction or not. See CJEU 12/76 Tessili v Dunlop.

In the case at issue, the contract is a loan and the applicable law is determined with reference to CJEU Kareda. This is where the court veers off course (my first categorisation by Tweet of the judgment being an excellent example therefore needs to be corrected): In Kareda the CJEU held that the credit agreement at issue was to be considered an ‘agreement for the provision of services’ per A7(1)(b), locking in forum contractus “in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided”. In such case, no more looking over the fence is required, let alone consideration of Article 4(3) Rome I etc.

Geert.

Students claxon
First instance Limburg, excellent example of 'looking over the fence' aka the conflicts method per CJEU Tessili v Dunlop to determine forum contractus per A7(1)a BIa, A4(2) Rome I (no A4(3) manifest closer connection
ECLI:NL:RBLIM:2023:4342https://t.co/g6EdSsEs2c

— Geert Van Calster (@GAVClaw) October 20, 2023

The UK Supreme Court has dismissed the appeal in Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP & Ors [2023] UKSC 40, confirming the Court of Appeal’s finding that the claim against the majority of the defendants may go ahead.

I reviewed the first instance judgment here and the Court of Appeal’s here and I shall not repeat all the issues. Readers should note that the issues discussed are of wider relevance to current developments in both public and private international law (business and human rights litigation, climate change litigation etc.).

[21] Lord Lloyd-Jones summarises the Dicey rules at play (and also notes the editors of the 16th d and those before them pointing out the inroads that in recent years have been made into the principle) and [22] he makes a delightfully concise reference to somewhat different US views on the rationale for the issue.

[39] after reviewing the authorities, it is held that

The Danish tax system undoubtedly provided the context and the opportunity for the alleged fraud and the operation of the fraud can be understood only by an examination of that system. It may well be that at the trial of this action it will be necessary to address that in detail. However, as we have seen [that’s a reference to Dicey as summarised above, GAVC], there is no objection to the recognition of foreign tax laws in that way. Because the present proceedings do not involve an unsatisfied claim to pay taxes due in Denmark, they fall outside the scope of the revenue rule.

[41] applies fraus and nemo auditur in dismissing appellants’ attempt to present themselves as taxpayers

The appellants seek to circumvent this difficulty by nevertheless portraying the refund applicants as taxpayers. It is said that by making applications for withholding tax refund applications the applicants brought themselves within the Danish tax system and became Danish taxpayers. It is also said that the respondent by paying “refunds” accepted them into the Danish tax system. It is further said that in rescinding the “refunds” the respondent was acting in the capacity of a taxing authority. The appellants therefore maintain that, in all the circumstances, the recipients of “refunds” and the respondent were in the relationship of taxpayer and taxing authority. As the Court of Appeal pointed out (at para 136) this submission is misconceived. The applications for “refunds” were all based on the lie that the applicants had paid tax in the first place which, on the respondent’s pleaded case, they had not. This attempt to portray the applicants as taxpayers cannot bind the respondent as the victim of their fraud and the applicants cannot take advantage of their own wrongdoing in order to bring themselves within the revenue rule.

[44] ff discusses the impact of (commentary on) CJEU C-49/12 Sunico, which was also discussed by the  first instance judge in current case and by Szpunar AG and the CJEU in Movic.

[53] ff then discusses the sovereign authority rule, essentially considering whether the claim is a simple money claim like thirteen to the dozen, and with reference (via Dr Mann) to Grotius’ ‘actus qui a rege sed ut a quovis alio fiant’.

[58] again substance is distinguished from context

appellants are undoubtedly able to point to prior exercises of sovereign power by Denmark in creating its laws relating to the taxation of dividends and in operating the tax system. This, however, merely provides the context for the present claims. The substance of the claims, as we have seen, does not involve any act of a sovereign character, any exercise or enforcement of a sovereign right, or any vindication of sovereign power. On the contrary, the respondent is simply bringing restitutionary claims to recover monies of which it has been defrauded, a course open to any private citizen who had been similarly defrauded.

Unlike in first instance, neither Lugano nor Brussels Ia feature substantially at the Court of Appeal or Supreme Court. That is a pity for how the Dicey rules and similar ones in the current EU Member States relate to Lugano and Brussels, is not clear-cut.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.28 ff. (4th edition forthcoming January 2024).

For background see https://t.co/B5DeTbT5g4
More on the blog soon.

via @bwmlindsay https://t.co/3tVcUeFyL7

— Geert Van Calster (@GAVClaw) November 8, 2023

Mazepin / Conseil
Relations extérieures
Guerre en Ukraine : le Tribunal confirme le gel des fonds de M. Dmitry Arkadievich Mazepin

Sattvica / EUIPO - Maradona e.a. (DIEGO MARADONA)
Propriété intellectuelle et industrielle MARQ
Bataille juridique autour de la marque DIEGO MARADONA : le Tribunal de l’Union européenne confirme le refus de l’EUIPO d’enregistrer le transfert de cette marque en faveur de la société argentine Sattvica

Visite à la Cour de justice de l'Union européenne de la présidente de la République de Slovénie, Mme Nataša Pirc Musar

Staatsanwaltschaft Berlin (EncroChat)
Espace de liberté, sécurité et justice
Selon l’avocate générale Tamara Ćapeta, un procureur peut émettre une décision d’enquête européenne (DEE) ayant pour objet la transmission d’éléments de preuve déjà en la possession d’un autre État membre

LATAM Airlines Group
Transport
Refus d’embarquement anticipé : les passagers ont droit à une indemnisation même s’ils ne se sont pas présentés à l’enregistrement et s’ils ont été informés de ce refus d’embarquement au moins deux semaines avant l’heure de départ du vol prévue

FT (Copies du dossier médical)
Principes du droit communautaire
Protection des données à caractère personnel : un patient a le droit d’obtenir gratuitement une première copie de son dossier médical

Bulgarian Energy Holding e.a. / Commission
Concurrence
Le Tribunal annule la décision de la Commission selon laquelle le groupe BEH a abusé de sa position dominante en refusant l’accès à des infrastructures gazières stratégiques en Bulgarie

In Limbu & Ors v Dyson Technology Ltd & Ors [2023] EWHC 2592 (KB) a jurisdictional challenge on forum non conveniens grounds in allegations of forced labour at Dyson’s Malaysian Supplier, was successful. The judgment shows the impact of neither Brussels Ia (with a forum non conveniens ultra light regime) or the Lugano Convention (no forum non conveniens at all) applying.

The case is said [18] to raise a number of novel questions: whether the unjust benefit in a claim for unjust enrichment has to flow directly from the claimant to the defendant; and whether a party can be liable in negligence for the treatment by a third party — a supplier — of that third party’s employees. I do not think nota bene that the latter is correct: IMHO undoubtedly it can (for similarish considerations, albeit at strike-out level, see the Court of Appeal in Begum v Maran). The question is under what conditions.

[16] the judgment lists the concessions made by the defendants:

(i) D1 and D2 will submit to the jurisdiction of the Malaysian courts if they are sued there;

(ii) The Dyson Defendants will not seek security for costs or an adverse costs order against the Claimants if and to the extent such costs would not be recoverable under the Qualified One Way Cost Shifting regime in England;

(iii) The Dyson Defendants will pay the reasonable costs necessary to enable the Claimants to give evidence in Malaysian proceedings including (if necessary) affidavit affirmation fees and other costs necessary for the Claimants to give remote evidence including travel and accommodation costs, costs associated with the provision/set-up of suitable videoconferencing technology and other costs associated with the logistics of giving evidence remotely;

(iv) The Dyson Defendants will not oppose an application by the Claimants for remote attendance at a hearing/the trial in Malaysian proceedings;

(v) The Dyson Defendants will pay for the Claimants’ share of the following disbursements to the extent reasonably incurred and necessary: (a) Court interpretation fees, (b) Transcription fees, and (c) Joint expert evidence; and

(vi) The Dyson Defendants will not seek to challenge the lawfulness of any success fee arrangement entered into between the Claimants and their Malaysian lawyers.

A further undertaking was given in the course of the hearing before me: that the Dyson Defendants would not oppose an application for a split trial.

Sheldon DJ, with reference to Spiliada, sets out the jurisdictional test as follows [28-29]

With respect to “service in” cases [defendants domiciled in England, served there ‘of right’, GAVC], the burden of proof rests on the defendant to show that England is not the natural or appropriate forum and that there is another available forum which is clearly and distinctly more appropriate: Stage 1. If so, then the burden shifts to the claimant to show that there are special circumstances such that justice requires the trial to take place in England: Stage 2.

With respect to “service out” cases [defendant in respect of whom permission to serve abroad has been obtained, GAVC], the burden of proof is on the claimant at Stage 1 to show that England is the appropriate forum for the trial of the action, and that it is “the proper place in which to bring the claim” (CPR rule 6.37(3)). According to Lord Goff in Spiliada … the claimant must show that this is “clearly so”. If the claimant fails to establish that England is the proper forum, then Stage 2 will apply.

[30] the judge refers to Briggs J in Vedanta emphasising a preference for  a single forum, so as not to run the risk of irreconcilable judgments, should there be bifurcation. [37] He refers to Lord Briggs’ reference [87] in Vedanta that when the E&W-domiciled anchor defendant)s) have agreed to submit to a foreign jurisdiction, but the claimant has made a deliberate choice to sue in this forum and has thereby engendered the risk of irreconcilable judgments, it “would offend the common sense of all reasonable observers to think that the proper place for this litigation to be conducted was England”.

That element of Lord Briggs’ speech was subject to a requirement that substantial justice can be obtained abroad, and I pointed out here that I found that a massive get out off jail free card.

The judge in current case [43ff] emphasises the caution that should be applied when considering whether “substantial justice” can be obtained in the foreign jurisdiction.

First, it has been observed that there have been “judicial warnings of undoubted authority that the English court should not in this context conclude, other than in exceptional cases, that the absence of a means of funding litigation in the foreign jurisdiction, where such means are available in England, will lead to a real risk of the non-availability of substantial justice”: see Lord Briggs JSC in Vedanta at §93 referring to Connelly v RTZ Corpn plc (No 2) [1998] AC 854 (“Connelly“), 873 per Lord Goff, and Lubbe and Others v Cape Plc [2000] 1 WLR 1545 (“Lubbe“), 1555 per Lord Bingham.

Second, as Lord Goff noted in Connelly at p874D, “seeking to take advantage of financial assistance available here to obtain a Rolls Royce presentation of his case, as opposed to a more rudimentary presentation in the appropriate forum” would not be sufficient to justify such a refusal.

Third, and more generally, Lord Briggs warned in Vedanta at §11 that the “conclusion that a foreign jurisdiction would not provide substantial justice risks offending international comity. Such a finding requires cogent evidence, which may properly be subjected to anxious scrutiny”.

Authorities discussed were then Connelly, Lubbe, Pike, Unilever, and of course Vedanta. [52] Claimants argue that from an access to justice perspective, where the English Court was seized of jurisdiction, and knows that a fair trial is possible here, it should not lightly relinquish that jurisdiction – I think they are right. Parties’ respective arguments are summarised [54] ff and the judge held as follows [83] ff.

On “Spiliada Stage 1. The key factors are said to be

(i) Neither England nor Malaysia are practically convenient for all of the parties and witnesses. This factor in essence is said to be neutral. 

(ii) There is no completely common language for each of the witnesses, and so this factor is neutral.

(iii) Lex causae will be Malaysian, and this it is [97] said “is a factor which clearly favours hearing the case in Malaysia.” This section I find does not properly represent the way in which English courts can and do apply foreign law even when that law may not be clear to the foreign country itself. (And by the way was it common ground that the unjust enrichment claim would be subject to Malaysian law?)

(iv) The issues in this case took place in both England and Malaysia, [102] “however, the place where the harm occurred was in Malaysia (even if there are ongoing injuries for the Claimants who live outside of Malaysia), and the underlying alleged mistreatment took place in Malaysia. In my judgment, the centre of gravity of this case is plainly Malaysia, and this is a strong factor pointing towards Malaysia as being the proper forum.”

I disagree. As the judge said himself, this claim raises new issues on unjust enrichment in the supply chain and the English outsourcing corporation’s liability for mistreatment in the supply chain. The main focus of the trial will in reality be concerned with the E&W defendants and the Dyson Defendants’ policies, activities and arguments about their liability, as claimant’s counsel argues [104].

(v) The documents relevant to the case are held in both England and Malaysia. Wherever a trial is held, it seems most likely that the relevant documents will be obtainable. This factor is said slightly to favour Malaysia.

(vi) There is a real risk of a multiplicity of proceedings, and of irreconcilable judgments, wherever this claim is heard. However [121] particularly in light of related defamation proceedings, this element is said to favour E&W.

In conclusion on Spiliada Stage 1, [122]:

England is not the natural or appropriate forum and that Malaysia is another available forum which is clearly and distinctly more appropriate. The centre of gravity in this case is Malaysia: that is where the primary underlying treatment about which the Claimants complain took place, and is therefore the forum with “the most real and substantial connection” per Lord Goff in Spiliada at 478A. Malaysian law is also the governing law, and there are good policy reasons for letting Malaysian judges consider the novel points of law that are being raised in this claim within the context of their jurisprudence, rather than letting an English Court second guess what they might decide. In my judgment, these factors are not “dwarfed” by countervailing factors (per Lord Mance in VTB). The risk of irreconcilable judgments resulting from the defamation proceedings is an important factor, but it does not tilt the balance in favour of the English Court being the proper forum to determine the Claimants’ claim.

On to Stage 2: are there special circumstances such that justice requires the trial to take place in England? Neither the

difficulties in obtaining justice for migrant workers,

that the claims were complicated and needed suitably qualified advocates, the lawyers who argued labour and migrant cases did not have the expertise necessary to deal with this kind of case, and teaming up was unlikely

that it was not possible to case manage out complexity, and although personal injury cases could easily be divided into liability and quantum this was not possible for a claim of unjust enrichment, where establishing the extent of enrichment was part of the question of liability. A very substantial part of the case would involve unjust enrichment, and an estimate of 6 months for the trial had been given

that there would be very significant disbursements, not least on expert fees; and there would be a need for forensic accounting for the unjust enrichment claim;

that the claims would involve considerable financial risk for the Claimants’ legal representatives. They would have to commit thousands of hours of work, and be at risk that they would not recover them. Among other things, there would also be translation costs, hundreds of hours for reviewing documents, setting up hearings in Bangladesh. The fact that there was one witness who had said he would do the case was not sufficient.

that the prospect of a small band of practitioners being willing to take the risk was reduced when considering that they would be opposed by Defendants without any effective limitation on resources, represented by one of the largest law firms in the world, and where aggressive and heavy-handed approach is likely to be taken in the defence of the proceedings

that it was inappropriate to rely on the undertakings given by the Dyson Defendants. Paying for the disbursements does not touch the size of the financial risk. There was also a conflict of interest here, as the Claimants’ legal representatives would be negotiating with the Defendants’ legal representatives over the reasonableness of the costs incurred;

that there was no cogent evidence that the gaps could be filled by NGOs; and

that the Claimants contended that partial CFAs were unlawful; and even if they were lawful, the basic fee to be paid cannot be nominal, and the fee that would have to be paid by the Claimants would be set at a level which was unrealistic.

was held [171] to be one of the “exceptional cases” in which “the absence of a means of funding litigation in the foreign jurisdiction, where such means are available in England, will lead to a real risk of the non-availability of substantial justice”, per Lord Briggs JSC in Vedanta at §93.

I do find the evident reliance in many of these factors, on defendants’ commitments troubling, including from an Article 6 ECHR point of view; I do not think the judge is right on the applicable law being Malaysian law issue-   and that element was really the only one favouring Malaysia; and the main focus of the trial on the claim argued will in reality be concerned with the E&W defendants and the Dyson Defendants’ policies, activities and arguments about their liability.

Geert.

EU private international law, 4th ed. 2024, Chapter 7.

A case which unfortunately illustrates the impact of Brexit on #bizhumanrights claims
Successful jurisdictional challenge on forum non conveniens grounds in allegations of forced labour at @Dyson Malaysian Supplier
Limbu ea v [Dyson] [2023] EWHC 2592 (KB)https://t.co/JWVryJDEzc pic.twitter.com/a3nYD478nw

— Geert Van Calster (@GAVClaw) October 20, 2023

G. ST. T. (Proportionnalité de la peine en cas de contrefaçon)
Rapprochement des législations
Une peine minimale de cinq ans d’emprisonnement en cas de contrefaçon d’une marque peut s’avérer disproportionnée

Lufthansa CityLine
Temps de travail : l’obtention d’une rémunération majorée pour le dépassement d’un certain nombre d’heures de travail ne peut défavoriser le travailleur à temps partiel

Zippo Manufacturing e.a. / Commission
Politique commerciale
Le Tribunal annule les droits de douane additionnels sur certains briquets en provenance des États-Unis 

Richard de la tour AG opined last Thursday in C‑566/22 Inkreal aka Inkreal s. r.  v Dúha reality s. r. o..

At issue is whether the sole use of international choice of court suffices to escalate a purely internal case to the ‘international’ level, hence within the reach of the Brussels Ia Regulation. The AG opined it does not. I don’t think he is right and I suspect the CJEU will not follow him.

FD, resident in Slovakia, as the assignor, and Dúha reality s. r. o., a company domiciled in Slovakia, as the assignee, concluded two loan agreements on 29 June 2016 and 11 March 2017 respectively. By means of a voluntary assignment agreement dated 8 December 2021, FD assigned the claims arising from those loan agreements to Inkreal, a company domiciled in Slovakia. In each of those agreements, the parties agreed that ‘any ambiguities or disputes arising from the agreement and in connection therewith shall be first resolved by negotiation aimed at reaching a solution acceptable for both parties. If the parties are unable to settle such a dispute, the dispute shall be settled by a court of the Czech Republic having substantive and territorial jurisdiction, in line with the [Code of Civil Procedure], as amended’. Following non-payment, Inkreal brought an action before the Czech courts, in application of the choice of court agreement.

(31) onwards the AG sides with that part of scholarship (most of the authors he refers to wrote in French or German, just a few in English and he seems to only cite Mankowski as holding opposite views; I am not saying that French or German scholarship ought not to be cited, far from it, it ought to much more frequently in all possible EU languages; yet there is more scholarship on the issue both by English scholars and by others writing in English) and national case-law which argues against Article 25 BIa catching such choice of court, alleging lack of ‘international’ element.

He develops five main reasons (see the Opinion for more detail) with often only one source for each.

1. (32).  The mere will of the parties in a purely internal situation must not suffice: existence of an international element has to be established according to “objective criteria”. I for one do not understand how party autonomy is not an “objective criterion”.
2. (33) ff Brussels Ia cannot have the effect of eliminating any distinction between the national and international rules of jurisdiction governed by EU law.  Four arguments to the contrary of a textual or teleological nature based on A25 BIa must in the AG’s view be dismissed. First, that non-EU domiciled parties can make valid choice of law for an EU court in his view is of no value; Second, the independence of the will of the parties cannot enables parties to “call into question the scope of that regulation, which is limited to international and not purely internal situations.” ( a clear circular argument);  Third, A25’s new lex causae rule for substantive validity of choice of court cannot rescue choice of court which does not initially engage with a ‘international’ situation (again circular); Fourth, the clear movement from Brussels I onwards towards supporting choice of court does not justify authorising the parties to derogate from national rules on jurisdiction without any limit or connecting factor. 
3. (38) The AG cites CJEU Owusu, Lindner and IRnova as confirming his view that “objective criteria” are required to support an international element (Owusu and IRnova) or the foreign nationality of the defendant (Lindner).
4. (40 ff) Rome I cannot be used as a benchmark, both because purely internal situations in Rome I remain subject to mandatory national provisions (see of course VinylsItalia) and because Rome I’s DNA is party autonomy which Brussels Ia’s Article 25 it is suggested is not. (Had he not lost me already, the AG would certainly have lost me here). The AG also refers in support to the 2005 Hague Choice of Court Convention and recitals in Council Decision 2014/887 (making the EU accede to that Convention and referring to links between both and one or two Hague anchors in Brussels Ia; but nowhere near the symmetry the AG suggests), opining that A1(2) Hague Convention somehow needs to be extended to Brussels Ia: that Article reads “a case is international unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State.” Extending A1(2) Hague 2005 to Brussels Ia in my view is a massive stretch of statutory construction.
5. Finally (43) the AG somewhat backtracks and suggests factors testifying to an international element “should be assessed by the court seised on a case-by-case basis in a flexible manner or according to a broad conception.”

Finally the AG suggests (45 ff) that the CJEU should advice the referring court and ‘practice’ in general on the A25 conflit (viz the ‘international element’) mobile issue. When must the international nature of the situation be assessed: when the jurisdiction agreement is concluded or when the designated court is seised by the parties? Here he emphasises the contractual nature of the determination of jurisdiction (in direct contrast with his views above) and legal certainty rather than foreseeability, and suggests the international nature be assessed at the stage when the choice of court clause is agreed, not when the court is seised. That in my view undermines the core forum shopping intention of both Article 25 and Article 26 (voluntary appearance).

(49) the AG oddly backtracks again on this issue by suggesting that “it might be accepted that, in an internal situation with a prospect of becoming international, the parties [may] agree, when concluding their agreement, to designate a court of a Member State in sufficiently precise terms which express their intention  and provide for the exclusive jurisdiction of national courts where there is doubt as to the existence of a criterion requiring an international element.”  Rather than increasing legal certainty, that is bound to upend it IMHO.

The CJEU of course is not likely to entertain this last part of the Opinion.

In general, I believe it will have a more generous view of party autonomy and an eye on the interests of the European Judicial Area (per prof Dickinson), perhaps also as suggested by Matthew Hoyle, referring to Brussels Ia’s corrective mechanisms both for protected categories and ordre public (Article 45 BIa).

Geert. EU Private International Law. 4th ed. 2024, para 2.22 ff. https://twitter.com/GAVClaw/status/1713835285119648124

Ugljesa Grusic’s excellent post on  Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso Victor Maria De Borbon y Borbon [2023] EWHC 2478 (KB) is prompting me to try and do something about the draft posts queue for the blog. Ugljesa has very good overview and this post can largely refer to his.

Nicklin J had earlier held that in [2022] EWHC 668 (QB) that in a former lover’s harassment case against the former King of Spain, Juan Carlos, the former King does not enjoy foreign sovereign immunity under the State Immunity Act 1978. That was overruled upon appeal [a Saint Nicholas gift for the King, held 6 December 2022 [2022] EWCA Civ 1595] for all pre-abdication conduct which the Court of Appeal held does fall under foreign sovereign immunity. The claim continued for the remainder and is ratione temporis subject to Brussels Ia (the EU jurisdictional rules for cases like this).

Collins Rice J in current judgment resoundingly held [303] ff against jurisdiction on the basis of the gateway for tort, and obiter blew the claim out off the water in many other ways:

My principal conclusion is that the High Court of England and Wales lacks jurisdiction to try this claim. That is because it has not been brought against the Defendant in his country of domicile, as is his default entitlement; and the Claimant has not satisfied me she has a good arguable case that her claim falls within an exception to that default rule. That in turn is because she has not sufficiently established that the ‘harmful event’ of which she complains – harassment by the Defendant – happened in England.

I am not satisfied either that the Defendant has, or should be deemed to have, submitted to the jurisdiction of the High Court by his own conduct of this litigation so far.

In the alternative, if I had been able to conclude that the High Court did have jurisdiction over this claim, I would have refused the Claimant’s application to amend her claim. This application was multifaceted; she wished to amend her claim in a number of respects and my reasons for refusing vary correspondingly. They include the inconsistency of her proposals with the decision of the Court of Appeal on the extent of the Defendant’s state immunity from suit; problems with the clarity, accuracy and consistency of the way she wanted to change her case; and the lack of good enough explanations for the timing of the changes she wanted to make. My conclusion in all the circumstances was that the changes did not introduce and express matters on which she would have a real prospect of succeeding at trial.

I would also have granted the Defendant’s application to strike out her claim. The claim did not comply with the rules of court applicable to the drafting of a harassment claim. As pleaded, I could not be satisfied that her statement of case disclosed reasonable grounds for bringing her claim as she did.

The Claimant has an account she wishes to give of her personal and financial history with the Defendant, and about the harm he has caused her peace of mind and personal wellbeing, and her business, social and family life. I take no view about that account as such. The only question for me has been whether the Claimant can compel the Defendant to give his side of the story to the High Court. My conclusion, as things stand, is that she cannot.

[17] ff the judge discusses ‘submission’ aka voluntary appearance under Article 26 Brussels Ia and essentially held [42] that the former King’s reservation of his jurisdictional position (made within the PCR prescribed 14 days within acknowledgment of service) pending resolution of the state immunity issue was apparently intended to be comprehensive, rather than to have deliberately conceded anything.

I believe that finding is right in essence however there is also a clear warning here for defendants that if they wish to oppose jurisdiction they better be comprehensive about it from the start.

For the determination of locus delicti commissi and locus damni under Article 7(2) Brussels Ia, the judge holds [62] ff

In this case, the parties have proceeded on the basis that I must hold in mind both the autonomous (internationally consistent) meaning of the ‘place of the harmful event’ together with the guidance on that provided by the CJEU, and, at the same time, the function of national tort law in identifying the legally relevant ‘harm’ in the first place. Authority for that appears (in a non-defamation case) in the decision of the Supreme Court in JSC BTA Bank v Ablyazov & Anor [2020] AC 7272 per Lord Sumption and Lord Lloyd-Jones JJSC at [32]-[33]. Having confirmed that the expression ‘place where the harmful event occurred‘ required an autonomous interpretation, the judgment continues:

However, the requirement of an autonomous interpretation does not mean that the component elements of the cause of action in domestic law are irrelevant. On the contrary, they have a vital role in defining the legally relevant conduct and thus identifying the acts which fall to be located … In particular, whether an event is harmful is determined by national law.

Approaching the question of the special jurisdiction therefore requires considering the autonomous question of whether England is either the place of the ‘event giving rise to the damage’ or the place ‘where the damage occurs’; and the relevant ‘event’ and ‘damage’ are determined by English tort law. The latter requires consideration of whether the relevant components of an actionable tort, occurring in England, have been made out to the relevant standard.

A lot more can be said about this issue. The need for autonomous interpretation on the one hand (note [103] the reference to CJEU Melzer which IMHO can work both in the defendant’s and claimant’s favour), the role of the putative lex causae for Vorfrage and characterisation, and the role of the lex fori in same on the other are not easily reconciled.  And as I point out here, there is a lot that JSC BTA Bank did but also a lot it did not entertain.

Ugljesa is absolutely right in his post to refer, as the judge did in current case, to CJEU Shevill’s potential for national law to limit forum shopping possibilities, however the CJEU in Shevill (para 41) does also emphasise the Brussels’ regime’s effet utile (which nb also made it into ECHR Arlewin v Sweden and engages ia Article 6 ECHR):

The criteria for assessing whether the event in question is harmful and the evidence required of the existence and extent of the harm alleged by the victim of the defamation are not governed by the Convention but by the substantive law determined by the national conflict of laws rules of the court seised, provided that the effectiveness of the Convention is not thereby impaired.  (emphasis added)

Ugljesa finally is absolutely right in pointing to the lack of Rome II input into the extraterritoriality issue and this I suspect is but one element on which appeal may and can be sought.

Geert.

EU Private International Law, 4th ed. 2024, Heading 2.2.12.2

1/2 Following earlier only partially successful foreign sovereign immunity defence, former Spanish King Juan Carlos succeeds in Brussels Ia jurisdictional challenge to harassment claim
E&W held to be neither locus damni nor loci delicti commissi, nor centre of claimant's interest

— Geert Van Calster (@GAVClaw) October 6, 2023

https://bsky.app/profile/gavclaw.bsky.social/post/3kb3ifsvp742p

 

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