Courts reach a landing on the test for jurisdiction over co-defendants

The court can only assert jurisdiction over an EU domiciled co-defendant under Article 8(1) of the Recast Brussels Regulation if the claim against the anchor defendant is sustainable.

The court only has jurisdiction to hear a claim against a non-UK defendant under Article 8(1) of the Recast Brussels Regulation if the claim against the UK domiciled anchor defendant is sustainable. In Senior Taxi Aereo v Agusta Westland(1) the High Court has thereby brought some clarity to the rules applicable to defendants domiciled in states that are party to the Recast Brussels Regulation.

Background

Senior Taxi Aereo (STA) purchased a helicopter from one of the defendants, an Italian manufacturer. The helicopter was involved in a fatal crash, and STA claimed from the defendants compensation payments they had made; the defendants included an English company in the same group as the Italian manufacturer. The English company was the claimants' anchor defendant. STA argued that the court had jurisdiction over the Italian manufacturer under Article 8(1) of the Recast Brussels Regulation. That states that a claim can be brought in the UK against entities domiciled in other EU member states where:

• the claim is closely connected to a claim against a UK domiciled defendant; and
• it is necessary to hear the claims together in the UK to avoid the risk of irreconcilable judgments.

Did the court have jurisdiction?

STA argued that the English court should assert jurisdiction over the Italian helicopter manufacturer under Article 8(1) but this was rejected by the court; the claimants had to demonstrate that their claim against the UK domiciled anchor defendant was "sustainable". They had failed to do this.

Before Senior Taxi, the sustainability of the claim against the non-UK defendant was irrelevant in determining whether a court had jurisdiction under Article 8(1). However, it was an open question whether a claimant had to show that the claim against a UK anchor defendant was sustainable.

It was accepted by the parties that if STA brought proceedings against the English defendant purely to bring the Italian manufacturer into the jurisdiction, or knew that the claim against it was hopeless, then they could not rely on Article 8(1). The court decided that in addition it was only possible to rely on Article 8(1) if the claim against the English defendant was in fact sustainable.

If the claim against the English defendant was not sustainable, there was no risk that a judgment would be obtained against it in the English courts, which could be inconsistent with a judgment against the Italian defendant elsewhere.  As such, there was no risk of irreconcilable judgments and Article 8(1) was not engaged. The court left open the possibility that if the claim against the anchor defendant was prohibited by a procedural rule, as opposed to being unsustainable on the merits, Article 8(1) may still apply.

The future

Whilst the Recast Brussels Regulation will cease to apply when the UK leaves the EU, it is likely that the Senior Taxi test will continue to apply where jurisdiction is sought over EU domiciled co-defendants. The UK intends to accede to the Lugano Convention which contains a similar provision to Article 8(1) and which is likely to be interpreted consistently with the Recast Brussels Regulation.

The decision in Senior Taxi has also created a degree of consistency in the approach to claims against non-anchor defendants in other jurisdictions. Claims can only be commenced against co-defendants in states which are not party to the Recast Brussel Regulation if, amongst other things, the claim against the UK anchor defendant has a real prospect of success(2), which is similar to the Senior Taxi test.

Now that the court has reached a landing on the requirements of Article 8(1), where it is used as a basis to join an EU domiciled defendant to proceedings parties should carefully consider the merits of the claim against the UK anchor defendant.

⁽¹⁾ [2020] EWHC 1348

⁽²⁾ Practice Direction 6B paragraph 3.1(3)