Richard Handyside QC and David Murray (instructed by Allen & Overy LLP ) for the claimant; David Wolfson QC and Henry Forbes Smith (instructed by Quinn Emanuel ) for the defendant.
The defendant brought claims for damages in Norway against the claimant bank for breach of its duties as financial adviser. The claimant applied to the High Court in England for a declaration of non-liability in respect of those claims. The defendant cross-applied for a declaration that the English court had no jurisdiction to hear the claims under articles 5 and 23 of the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of 30 October 2007 (“the new Lugano Convention”) and that the claims should proceed in Norway. The defendant’s primary contention was that the claims were properly to be characterised as “matters relating to a contract” within the meaning of article 5.1 of the new Lugano Convention and that England was not the place of performance of the obligation in question. The defendant also contended that even if the English court did have jurisdiction under article 5, it was ousted by article 23 of the Convention because the claims fell within the scope of the Norwegian jurisdiction clause in a loan agreement between the parties.
The defendant’s claims were not to be characterised as matters relating to a contract. While article 5.1 of the new Lugano Convention did not require the conclusion of a contract which was valid under any particular system of national law, it did require that the obligation in question should have arisen by virtue of an agreement. The defendant’s contention that an alleged obligation that was freely entered into was sufficient for the purposes of article 5.1 was not sustainable. The claim in Norway was not based on any form of agreement, whether contractual or otherwise between the parties; it was a claim that the bank undertook unilaterally to act as an adviser to the defendant. The claims therefore fell within article 5.3 of the Convention as a tort/delict and the place where in substance the events giving rise to the damage that occurred was England. The defendant’s application for a declaration that the English court had no jurisdiction to hear the claim was dismissed.
Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 2007, arts 5, 23