The claimant brought an action against the defendants relating to a contract which contained an exclusive jurisdiction agreement in favour of the High Court in London. The defendants brought a Part 20 claim against a bank in Switzerland pursuant to article 6(2) of the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (2007), which provided that a person might be sued 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 otherwise be competent in his case. By CPR r 6.33 claims falling within the scope of the Lugano Convention could be served out of the jurisdiction without the court’s permission. The Part 20 claim form was issued during the implementation period established by the European Union (EU) Withdrawal Agreement, when obligations stemming from international agreements to which the European Union was party continued to apply, but it was not served until after the end of that period. The bank applied for service to be set aside on the ground that as a result of amendments to CPR r 6.33, in particular rule 6.33(3), which took effect at the end of the implementation period, the court’s permission for service out of the jurisdiction was required. The bank also contended that the defendants could not pursue a Part 20 claim under article 6(2) of the Lugano Convention where the main proceedings had been settled. The judge refused the application.
On appeal by the bank—
Held, appeal dismissed. (1) CPR r 6.33(3) as amended permitted service of proceedings commenced during the implementation period (“transitional claims”). The amendments expressly removed the exclusion of claims under the Lugano Convention and did not introduce a requirement that permission be obtained to serve transitional claims out of the jurisdiction (paras 31–38, 91, 92).
(2) Where domestic rules permitted the joinder of an additional/third party, that was in itself sufficient to engage article 6(2) of the Lugano Convention, provided that the joinder was not an abuse in the terms of the article. Such an interpretation was not only mandated by the Court of Justice of the European Union but was necessary to give effect to the principle of certainty. A broader connection test would undermine the certainty and efficacy of the Convention. The fact that Part 20 claims fell within article 6(2) did not prevent the court from deciding, within CPR r 20.9, that the third party proceedings should not be tried with the main proceedings (as in the present case) or that they should be dismissed, but that did not mean that they were not properly brought in this jurisdiction under article 6(2). In the present case, since there was no assertion that the Part 20 claim was being used abusively, it engaged article 6(2) which conferred jurisdiction over the dispute on the courts of England and Wales at the date of issue and service of the claim (paras 73–77, 90, 91, 92).
(3) There was no support in the text of the Lugano Convention (or the Judgments Regulation), the Jenard Report on the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, or any of the Court of Justice authorities for the proposition that jurisdiction, once founded on article 6(2) at date of issue, could be lost as a result of subsequent events. Such a proposition would directly conflict with and undermine the principle of certainty and predictability. It would also be contrary to the purposes of the Lugano Convention and the principle of certainty and predictability if a court had discretion to decline to accept jurisdiction which would otherwise have been established by under article 6(2). Management of those proceedings as a matter of domestic procedural law, including the application of CPR r 20.9, was another matter (paras 83–85, 89, 90, 91, 92).
Laura John KC and Daniel Schwennicke (instructed by Holman Fenwick Willan LLP) for the bank.
James M Turner KC (instructed by Bird & Bird LLP) for the defendants.