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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Kinnear & Ors v Falconfilms NV & Ors [1994] EWHC QB 1 (27 January 1994) URL: http://www.bailii.org/ew/cases/EWHC/QB/1994/1.html Cite as: [1994] EWHC QB 1, [1996] 1 WLR 920, [1994] 3 All ER 42, [1996] WLR 920, [1994] ILPr 731

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice
		27th January 1994

This appeal raises a number of points of general interest in relation to the 1968 Brussels Convention on Civil Jurisdiction and Judgments ("the Convention") and, accordingly, I am giving judgement in open court.

On the 19th September 1988 the actor, Roy Kinnear, was making a film near Toledo in Spain, when he was thrown from a horse and sustained severe injuries to the pelvic girdle. He was taken to the Ruber Internacional Hospital ("the Hospital"), Madrid, where he died some 24 hours later. On the 23rd August 1991 the Plaintiffs, who are the Administrators of his estate and a company which acted as his agent, issued a Writ commencing proceedings in this jurisdiction against the Defendants, who are the film company, the producer and the director of the film. The Plaintiffs alleged that both Mr. Kinnear's accident and his death were caused by the Defendants' breach of contract and negligence. In their Defence the Defendants denied breach of duty. They further denied that Mr. Kinnear's death was a consequence of his injuries. They alleged that the Hospital and Dr. Juan Andrades who practised there as an orthopaedic surgeon, were guilty of medical malpractice in treating Mr. Kinnear and that this was, in law, the sole cause of his death.

On the 9th July 1992 the Defendants obtained leave from Master Hodgson to issue a Third Party Notice impleading Dr. Andrades and the Hospital ("The Third Parties"). This claimed an indemnity or contribution in respect of any liability that the Defendants might be under to the Plaintiffs. The claim was advanced on two different bases:

1) Under S.l of the Civil Liability (Contribution) Act 1978 ("the 1978 Act")

2) As a claim for damages for breach of a contract alleged to have been concluded between the Defendants and the Third Parties for the treatment of Mr. Kinnear.

Between the 15th and the 23rd October 1992 the Defendants served the Third Party Notice on the Third Parties in Spain. The Defendants contend that they were entitled so to do pursuant to 0.16 r.3(4) and 0.11 r.l(2). They contend that their Third Party claim falls within the jurisdiction of this Court by virtue of the Civil Jurisdiction and Judgments Act 1982 and, more particularly, of Article 6(2) of the 1968 Brussels Convention scheduled to it.

The Third Parties did not respond to the service of process upon them and, on the 27th April 1993, Master Murray granted the Defendants leave to sign judgment against the Third Parties. This stimulated the Third Parties to file an Acknowledgement of Service on the 24th June 1993 and to apply to set aside both the judgment and, more fundamentally, the Third Party proceedings.

On the 27th October 1993 the Plaintiffs issued a Summons to join the Third Parties as Fourth and Fifth Defendants. The Plaintiffs' position is that this is a step that they only wish to take if the Third Parties are joined in the Action by the Defendants.

On the 17th November 1993 Master Murray acceded to the Third Parties' application, set aside the Judgment entered against them, struck out the Third Party Notice and dismissed the Third Party proceedings. In these circumstances no Order was sought or made on the Plaintiffs' Summons.

The Defendants' now appeal against Master Murray's Order dismissing the Third Party proceedings, though they accept that the Judgment was properly set aside. The Plaintiffs renew their application for leave to join the Third Parties as additional Defendants should the Defendants' appeal succeed.

This short summary of the proceedings in this jurisdiction makes no mention of legal proceedings that have taken place in Spain. I shall refer to them in due course.

THE DEFENDANTS' APPEAL

Article 6(2) of the Convention

Article 6 provides:

A person domiciled in a Contracting State may also be sued -

2. As a third party in an action on a warranty or guarantee or in any other 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.

Two issues arise in relation to this Article:

1) Does the Defendants' third party claim constitute "any other Third Party proceedings" within the meaning of the Article? - the jurisdiction issue.

2) Is this a proper case for the English Court to grant leave to issue Third Party proceedings? - the discretion issue.

Jurisdiction .

Master Murray held that the English Court had no jurisdiction to entertain the Defendants' third party claim because that claim did not fall within what he saw as the narrow compass of the words "any other third party proceedings" in Article 6. The material part of his Judgment reads as follows:

In my view for the words "in any other Third Party proceedings" in Article 6 an autonomous interpretation is appropriate independent of the wording of our domestic rules of Court. The fact that under English law it is possible, in the circumstances of this particular case, to bring Third Party proceedings does not seem to me to be relevant. I have to construe the words "other Third Party proceedings" in the context of warranty or guarantee and the limited guidance that can be drawn from Hagen. This issue is one upon which I have reached a firm conclusion and it is simply this. These are not Third Party proceedings because they do not relate to the original accident and the fact that the Civil Liability Contribution) Act 1978 would enable Third Party proceedings to be brought in this country is a mere accident of the domestic jurisdiction and cannot found a basis for allowing the proceedings to go ahead against the Spanish Third Parties.

Mr. Briggs, for the Third Parties, sought to support Master Murray's reasoning. He submitted that Article 6.2 should be given a restrictive interpretation so as not to encroach further than necessary on the basic entitlement to be sued in the country of one's own domicile accorded by Article 2. In support of this contention he referred me to the approach of the Court of Justice in Kalfelis v Schroder [1988] ECR 5565 at 5583, when dealing with Article 6(1). That provides:

A person domiciled in a Contracting State may also be sued - where he is one of a number of defendants, in the courts for the place where any one of them is domiciled.

As to this provision, the Court ruled:

The principle laid down in the Convention is that jurisdiction is vested in the courts of the State of the defendant's domicile and that the jurisdiction provided for in Article 6(1) is an exception to that principle. It follows that an exception of that kind must be treated in such a manner that there is no possibility of the very existence of that principle being called in question.

That possibility might arise if a plaintiff were at liberty 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 the defendants is domiciled. As is stated in the report prepared by the committee of experts which drafted the Convention (Official Journal C 59, 5.3.1979, p.1), such a possibility must be excluded. For that purpose, there must be a connection between the claims made against each of the defendants.

In order to ensure, as far as possible, the equality and uniformity of the rights and obligations under the Convention of the Contracting States and of the persons concerned, the nature of that connection must be determined independently.

In that regard, it must be noted that the above-mentioned report prepared by the committee of experts referred expressly, in its explanation of Article 6(1), to the concern to avoid the risk in the Contracting States of judgments which are incompatible with each other. Furthermore, account was taken of that preoccupation in the Convention itself, Article 22 of which governs cases of related actions brought before courts in different Contracting States.

The rule laid down in Article 6(1) therefore applies where the actions brought against the various defendants are related when the proceedings are instituted, that is to say where it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. It is for the national court to verify in each individual case whether that condition is satisfied.

It must therefore be stated in reply to the first question that for Article 6(1) of the Convention to apply there must exist between various actions brought by the same plaintiff against different defendants a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings.

Mr. Briggs also referred me to the following observations of the Court, when dealing with Article 6(2) in Haqen v Zeehaqhe [1990] ECR 1-1845:

Article 6(2) makes provision for a special jurisdiction, which the Plaintiff may choose because of the existence, in clearly defined situations, of a particularly close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings (judgment of 22 November 1978 in Case 33/78 Somafer SA v Saar-Ferngas AG [1978] ECR 2183). The Convention thus enables the entire dispute to be heard by a single court. Consequently, the related nature of the main action and the action on a warranty or guarantee suffices to found jurisdiction on the part of the court in which the action on a warranty or guarantee has been brought, irrespective of the basis on which it has jurisdiction in the original proceedings; in this respect, the jurisdiction provided for in Article 2 and that provided for in Article 5 are equivalent.

He submitted that in the present case the necessary interrelationship between the Plaintiffs' claim against the Defendants and the Defendants' claim against the Third Parties was missing. The Plaintiffs' claim was based upon the circumstances in which Mr. Kinnear fell of his horse. The Defendants' claim was based upon his treatment in hospital.

Mr. Lasok for the Defendants challenged the assertion that Article 6(2) must be given a narrow interpretation. He submitted that the effect of Article 6(2) was to confer jurisdiction over a party on any Court which, by its domestic rules of procedure, would permit that party to be joined as a Third Party. He submitted that this broad approach was supported by observations in the Reports of both Jenard and Schlosser. Thus Jenard comments on Third Party proceedings, at p.28, as follows:

While a third party warranty or guarantee necessarily involves the intervention of an outside, it seemed preferable to make separate provision for guarantors or warrantors and for other third parties. The simplest definition of third party proceedings is to be found in Articles 15 and 16 of the Belgian Judicial Code, which provides that:

'Third party proceedings are those in which a third party is joined as a party to the action.

They are intended either to safeguard the interests of the third party or of one of the parties to the action, or to enable judgment to be entered against a party, or to allow an order to be made for the purpose of giving effect to a guarantee or warranty (Article 15).'

Schlosser, at paragraph 135, comments:

In Article 6(2), the term 'third party proceedings' relates to a legal institution which is common to the legal systems of all the original Member States, with the exception of Germany. However, a jurisdictional basis which rests solely on the capacity of a third party to be joined as such in the proceedings cannot exist by itself. It must necessarily be supplemented by legal criteria which determine which parties may in which capacity and for what purpose be joined in legal proceedings. Thus the provisions already existing in, or which may in future be introduced into, the legal systems of the new Member States with reference to the joining of third parties in legal proceedings, remain unaffected by the 1968 Convention.

In my judgment Schlosser's -commentary recognises that where domestic procedure permits a Third Party to be joined in proceedings, this is likely to be on grounds which justify overriding the basic right of the Third Party to be sued separately in the country of his domicile and that those grounds are almost certain to be some form of nexus between the Plaintiff's claim against the Defendant and the Defendant's claim against the Third Party. Absent such nexus I would agree that domestic Third Party proceedings cannot properly be described as "any other third party proceedings" in Article 6(2). To adopt the observation, in a somewhat different context, of Mr. Advocate General Lenz in Haqen at p.1857:

The application of the national procedural rules must not impair the practical effectiveness of the rules of the Convention.

Under our domestic rules of procedure, namely 0.16 r.l(l), a Third Party Notice may be given:

Where in any action a defendant who has given notice of intention to defend -

(a) claims against a person not already a party to the action any contribution or indemnity; or

(b) claims against such a person any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or

(c) requires that any question or issue relating to or connected with the original subject matter of the action should be determined not only as between the plaintiff and the defendant but also as between either or both of them and a person not already a party to the action.

In my judgment the nexus between the Plaintiff's claim against the Defendant and the Defendant's claim against the Third Party required to satisfy 0.16 r.l(l) is likely to be sufficient to justify the special jurisdiction granted by Article 6(2).

So far as the facts of the present case are concerned, the exercise of considering the nexus between the claim brought by the Plaintiffs against the Defendants and the claim brought by the Defendants against the Third Parties is somewhat artificial. This is because a claim for indemnity or contribution under the 1978 Act is not one which could be brought against the Third Parties in Spain in any event. The claim is sui generis, analysed by Dicey & Morris 12th Edition at p.1534, as quasi-contractual. Plainly it could not be brought in Spanish proceedings - indeed Dicey & Morris raise an interesting question as to whether the Act can be invoked in English proceedings in relation to a foreign tort.

In the present proceedings the Defendants have put in evidence an opinion on Spanish law by Dr. Gonzalez, an advocate in the firm of Gomez-Acebo & Pombo. This deals, inter alia, with the method by which one tortfeasor can obtain contribution from another in Spain. While the opinion is not entirely clear, it suggests that contribution cannot be sought as such, but that the one tortfeasor has to bring the other before the Court that is seized of the Plaintiff's claim and that if both tortfeasors are at fault, liability will be apportioned between them on the basis that they are severally liable for the Plaintiff's damage.

This illustrates; a point of fundamental importance in the present context. Where one tortfeasor wishes to reduce his liability to reflect the fact that another tortfeasor shares responsibility for the Plaintiff's damage, it may be impossible to do this unless all three parties are brought before the same tribunal. That seems to me to be the practical reality in the present case and, so far as the Defendants are concerned, this jurisdiction is the only one which offers that possibility. This of itself abundantly justifies the application of Article 6(2) in the present case.

If one carries out the artificial exercise of comparing the issues that are raised by the Plaintiffs' claim against the Defendants and the Defendants' claim against the Third Parties, it is apparent that the issues largely overlap. In the action between the Plaintiffs and the Defendants, the following issues arise:

1.. ) Was Mr. Kinnear's accident caused by breach of duty on the part of the Defendants?
2.. ) Was Mr. Kinnear's death caused by medical malpractice on the part of the Third Parties?

If so

3.. ) Did that medical malpractice break the chain of causation?

In the Third Party claim the first two issues arise again and, if the Court finds that breach of duty on the part of both the Defendants and the Third Parties contributed to Mr. Kinnear's death, the Court then has to decide how liability should be apportioned between them. This analysis further demonstrates that the facts of this case abundantly satisfy not merely the letter of Article 6(2) but the considerations that have given rise to this head of special jurisdiction.

Discretion

Mr. Briggs argued that, inasmuch as the Defendants require leave to issue the Third Party Notice, the Court has a discretion to refuse leave, which it should exercise on the facts of this case. He contended that the issue of medical malpractice raised by the Third Party Notice is one pre-eminently suited for trial in Spain, where all the material events occurred and whose law and practice will be applicable.

Mr. Lasok argued that it would be an improper exercise of discretion to refuse leave on grounds which relate essentially to the appropriate jurisdiction. Jurisdiction falls to be determined according to the provisions of the Convention and domestic rules should not be permitted to frustrate the scheme of the Convention.

In a non-Convention case, English procedural rules permit the Court to decline jurisdiction in relation to a Third Party claim on the ground that a foreign jurisdiction is the appropriate one to determine that claim. Quite apart from the procedure under 0.12 r.8, I see no reason in principle why the Court should not found on this consideration as a reason for terminating proceedings on the Third Party Notice under 0.16 r.4. In a Convention case it would not be proper for the Court to apply domestic rules to decline jurisdiction under Article 6(2) simply because the Third Party was domiciled abroad - see Hagen v Zeehaqhe paragraphs 17-22. I am not, however, persuaded that the Court cannot properly, when deciding whether or not to exercise jurisdiction under Article 6(2) in relation to a Third Party claim, have regard to the implications on the litigation of adding to the proceedings a claim which should more appropriately be pursued abroad. On the facts of the present case, however, I shall exercise such discretion as I have in favour of the Defendants. This is not because this jurisdiction is a convenient one in which to determine the issue of whether there was medical malpractice in Madrid -it is not. It is because that issue will in any event be raised in the English proceedings and because I do not believe that there is any alternative forum available to the Defendants in which to seek contribution from the Third Parties.

Article 21

I must now refer to proceedings that have taken place in Spain in relation to the death of Mr. Kinnear. I have received Affidavit evidence on Spanish law submitted by both the Defendants and the Third Parties. All parties are also agreed that I may have regard to the findings of Spanish law made by Potter J. in Black v Yates [1991] 1 Lloyds Rep. 181. For reasons which will become apparent I need only refer to the Spanish proceedings in the most summary fashion. On the 20th September 1988 legal proceedings were commenced in Spain in relation to Mr. Kinnear's death. They were started at the instigation of the Police in Madrid. The first stage of those proceedings consisted of an investigation of the material facts, but the proceedings were potentially a vehicle both for bringing criminal charges against anyone alleged to be criminally responsible for Mr. Kinnear's death and for anyone claiming to have suffered damage as a consequence of his death to claim compensation. On the 26th September 1988 Mrs. Kinnear became a party to these proceedings. At the end of the investigative stage of the proceedings no criminal charges were brought and no claim for compensation was advanced by Mrs. Kinnear. The proceedings terminated on the 26th May 1993.

Mr. Briggs contended that the initiation of those proceedings precluded this Court from asserting jurisdiction in relation to the Third Party claim, by virtue of the provisions of Article 21 of the Convention. This provides:

Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.

There is an issue on the facts that I have summarised above as to whether or not Mrs. Kinnear's participation in the Spanish proceedings amounted to bringing proceedings against the Third Parties in relation to the same cause of action that they will face if joined as Third Parties in the present proceedings. Had I to resolve this issue I would accept the opinion of the Defendants' expert, Dr. Gonzalez, that Mrs. Kinnear did not reach the stage of initiating a claim for compensation in the Spanish proceedings. I find it hard to see how participating in the initial stage of factual investigations which do not result in any charges or claims against any individual can constitute the initiation of a claim against anyone. There is, however, a more fundamental objection to Mr. Briggs' reliance on Article 21. I do not see how it can be suggested that the proceedings in Spain were "between the same parties" as the Third Party proceedings in this case. Even if one assumes that the Third Parties were party to the Spanish proceedings, the Defendants plainly were not. In an attempt to overcome this problem Mr. Briggs sought to persuade me that there was a possibility that Article 21 applied where there was only one common party to the two sets of proceedings. He submitted that the Court of Appeal in The MACIEJ RATAJ [1992] 2 Lloyd's Rep. 552 had so stated and had referred this question to the Court of Justice. Mr. Briggs referred me to the following passage in the Judgment of Neill L.J. at p.560:

There appears to me to be three possible interpretations of the words "the same parties" in art.2l: (1) it could mean a situation where there is an exact correspondence of parties; (2) it could mean a situation where at least one party is common to both actions; or (3) it could mean a situation where the parties in the two actions are substantially the same.

Read in isolation, this passage appears to support Mr. Briggs' submission. When the report is read as a whole, including the questions actually submitted to the Court of Justice, it is plain that the second possible interpretation referred to by Neill L.J. was a situation where at least one party on each side was common to both actions. That is not the position when one considers the Spanish proceedings and the Third Party proceedings in this case. Article 21 poses no bar to the Court's jurisdiction over the Third Party proceedings.

For these reasons the appeal against the Order of Master Murray succeeds. The Third Party proceedings are reinstated.

THE PLAINTIFFS' APPLICATION

In the light of my decision on the Defendants' appeal, the Plaintiffs pursue their application to join the two Third Parties as Fourth and Fifth Defendants. They contend that the Court has jurisdiction over them by virtue of Article 6(1) of the Convention, the terms of which I have already set out. Their problem is that the Third Parties have sought to meet this application by a pre-emptive strike. On the 15th November 1993 the Third Parties commenced proceedings against the three Plaintiffs, claiming, inter alia:

......that it be declared that Dr. Ayala and HOSPITAL RUBER INTERNACIONAL have not defaulted in any obligation or duty to Mr. Roy Kinnear, likewise declaring that they have no liability to said person and/or his heirs or executors, specifically Carmel Kinnear, Derek Hornby and Roy Kinnear Enterprises Limited and that consequently their lack of obligation to indemnify be declared.

The Third Parties contend that these proceedings involve the same cause of action and are between the same parties as the proceedings that the Plaintiffs now seek to bring against them by joining them as Fourth and Fifth Defendants, so that Article 21 of the Convention requires this Court to decline jurisdiction in relation to the Plaintiffs' claim against them.

Mr. Reynolds for the Plaintiffs has sought to persuade me that the Third Parties' reliance on Article 21 is misconceived, for a number of reasons.

Same Cause of Action

Mr. Reynolds submits that the negative declaration sought by the Third Parties cannot be said to involve the same cause of action as the claim that is brought under the Fatal Accidents Act 1976. I do not see how this submission can stand with the reasoning of the Court of Justice in Gubisch Maschinenfabrik v Palumbo [1987] ECR 4861. I note, however, that the fifth question asked of the Court of Justice by the Court of Appeal in The MACIEJ RATAJ at p.562 raises the question of whether, for the purposes of Article 21, a claim by one party for a declaration of non-liability involves the same cause of action as a claim by the other party for breach of duty. Accordingly I consider that the Plaintiffs should be left in a position to pursue the Third Parties as additional Defendants should the Court of Justice answer this question in the negative.

The Same Parties

The proceedings commenced by the Third Parties implead the three Plaintiffs by name and the declaration sought covers liability to the Plaintiffs and to Mr. Kinnear's "heirs or executors". Mr. Reynolds points out that no mention is made of Dependants - for whose benefit the Fatal Accidents Act claim is brought. It follows, so he contends, that the Plaintiffs are not impleaded in the same capacity as that in which they seek to sue the Third Parties, so that the two sets of proceedings should not be deemed to be "between the same parties". I reject this piece of special pleading. I consider that the proceedings that the Third Parties have commenced in Spain are plainly "between the same parties" as the proceedings the Plaintiffs seek to commence by adding the Third Parties as additional Defendants.

First in Time

Mr. Reynolds submits, rightly, that the Third Parties became party to this Action when joined as Third Parties. It follows, so he submits, that there existed, at the time that the Third Parties began the Spanish proceedings, an Action "between the same parties" in this jurisdiction, so that it is the Spanish Court which should yield jurisdiction to the English Court. The fallacy with this argument is that, unless and until the Third Parties are joined as additional Defendants in this Action, it cannot be said that these proceedings are "between" the Plaintiffs and the Third Parties.

For these reasons I consider that, by the stratagem of commencing proceedings for a negative declaration in Spain, the Third Parties have successfully precluded the English Court from asserting jurisdiction over the claim that the Plaintiffs seek to bring against them.

Mr. Reynolds informs me that the Plaintiffs intend to attack the jurisdiction of the Spanish Court over the claim brought against them by the Third Parties. In these circumstances I consider that the appropriate Order is that the Plaintiffs have leave to amend their pleadings to add the Third Parties as additional Defendants, but that after the Third Parties have been served the proceedings against them be stayed, pending the resolution of any issues raised in relation to Spanish jurisdiction. This will leave the Plaintiffs in a position to apply to have the stay lifted should the Court of Justice in The MACIEJ RATAJ give an answer favourable to the Plaintiffs to the question on the nature of a claim for declaration of non-liability.