The defendant contracted, pursuant to the Convention on the Contract for the International Carriage of Goods by Road (“CMR”) (set out in the Schedule to, and given the force of law by, the Carriage of Goods by Road Act 1965), to transport mobile telephones belonging to the first claimant and insured by the second claimant from England to the Netherlands. A number of the telephones went missing during the course of transportation. After the claimants had written a letter before action to the defendant threatening legal proceedings in the English courts, the defendant issued and served proceedings in the courts in the Netherlands seeking a declaration of non-liability to the claimants. Meanwhile the claimants commenced a claim in England and the defendant applied for a declaration that the English courts had no jurisdiction and to set aside the claim. The Dutch court subsequently issued its decision, holding that the underlying claim was time-barred under the CMR and thus that the defendant was not entitled to a declaration of non-liability because there was no valid claim to which that declaration could attach. The defendant applied, inter alia, for summary judgment against the claimants, contending that the entire matter had been decided by the Dutch court and that the terms of the CMR precluded any claim being brought in the English courts. The claimants opposed the application, asserting that neither the Dutch decision nor the CMR prevented it from bringing its contractual claims against the defendant. Article 31.2 of the CMR precluded any new action “between the same parties on the same grounds unless the judgment of the court … before which the first action was brought is not enforceable in the country in which the fresh proceedings are brought”. The claimants contended, inter alia, that the Dutch decision was not a “judgment” because it was a decision that the courts in the Netherlands did not have jurisdiction over the claim as the limitation period had expired, and that the decision was therefore not “enforceable”. They also asserted that they had claims in tort that were similarly not limited by the CMR.
On the defendant’s application for summary judgment—
Held, application granted. The word “enforceable” in article 31.2 of the CMR was to be construed in the broad sense of meaning “capable of being given effect”. The purpose of article 31 as a whole was to prevent the re-litigation of matters already decided in a competent court. It followed that article 31.2 precluded new actions when a competent court had made a decision as to whether or not a party had liability under the CMR, whether the judgment was that a party was liable in damages or that there was no such liability. A decision of a court that a claim was time-barred, and thus should be determined in a party’s favour, was a judgment of the same nature as a general judgment of non-liability, and therefore also caught by article 31.2. Accordingly, the decision of the Dutch court that the claim was time-barred was a “judgment … that is enforceable” for the purposes of article 31.2, and the claimants were precluded by that article from bringing a claim in contract in the English courts for damages arising from the loss or theft of the telephones. Considering the words and purpose of article 31 of the CMR, that article also precluded a party from bringing a claim in tort when it was barred by the Convention from bringing a claim in contract. The claimants were therefore unable to pursue any tortious claims against the defendant. Since the claimants were precluded from bringing claims in contract or in tort before the English court for damages arising from loss of their goods whilst being carried by the defendant, the claimants did not have a claim that had any realistic prospect of suspect. There was also no compelling reason why the case should be disposed of at trial, and the defendant was accordingly entitled to summary judgment in its favour (paras 26–29, 40–41, 52, 54, 57, 58, 63–64).
Per curiam. The Limitation Act 1980, which provides for a time limit of six years, does not override the one-year time limit in the Carriage of Goods by Road Act 1965. It would therefore be wrong to treat the limitation period in article 31.2 of the CMR as being six years (paras 59–61).
Sam Thomas (instructed by Azarmi & Co Ltd) for the claimants.
Michael Davey KC (instructed by Shoreside Law) for the defendant.