Flux européens

Al Assam & Ors v Tsouvelekakis [2022] EWHC 451 (Ch) shows the way many claims involving EU Member States facts or defendants are likely to go, until the novelty of newly found forum non freedom wears off perhaps: with intensive forum non conveniens-based jurisdictional challenges.

The defendant is domiciled in England and Wales. The claimants are the settlors of 2 Cypriot trusts who claim for the losses suffered in connection with the trusts’ investments. The trusts were both established under the International Trusts Law of the Republic of Cyprus.

As in Klifa v Slater, the forum non test, following Spiliada and VTB v Nutritek, [12] involves two limbs: Under limb 1 of the test, the Defendant must establish that the courts of Cyprus are both (i) “available” and (ii) are clearly or distinctly more appropriate than the English courts as a forum for determining the dispute. If the Defendant can establish that limb 1 of Spiliada is satisfied, it becomes necessary to consider limb 2. Limb 2 requires a consideration of whether, even if the courts of Cyprus are an available forum that is clearly or distinctly more appropriate for the trial of the action than the courts of England, justice nevertheless requires that a stay of the English proceedings should not be granted.

On availability, there is a bit of to and fro and each other’s Cypriot law legal experts, particularly on the territorial jurisdiction under residual Cypriot rules. However the conclusion [26] is that the Cypriot courts are ‘available’.

Obiter, Richards DJ discusses whether if there is no availability under Cypriot law, there might be availability if there is a submission to jurisdiction and/or an agreement /choice of court.

Discussion here was first whether A26 Brussels Ia could remedy the lack of territorial jurisdiction under Cypriot law. Unlike A25 choice of court, A26 does not include language making the defendant’s domicile in the EU a precondition for its application. At [32] the conclusion for the purpose of these proceedings is that there is a real risk that the Cypriot courts will not have jurisdiction on the basis of A26.

The discussion then [33ff] turns to the Cypriot courts being the clearly or distinctly a more appropriate forum with the conclusion being in the negative.

Helpfully, and suggested by counsel, the judge puts the following structure to the analysis:

a) personal connections ([39]: defendant’s residence in England remains a relevant factor pointing towards the English courts being the appropriate forum);

b) factual connections (held: correspondence between the parties will be of more relevance than the physical location of parties in Cyprus);

c) evidence/convenience/expense (conflicting factors here but none leading overwhelmingly to Cyprus);

d) applicable law (most likely Cypriot law for many of the claims however ia given the similarity with English law, this is not an overwhelmingly relevant issue [56] and some Swiss law will have to be applied anyways); and

e) the “overall shape of the litigation”, held [59] not to be Cypriot.

Limb 2, the requirements of justice, is considered obiter under two angles [61]: delays and the possibility of statutes of limitation kicking in. On the delays, [67] comity and caution to express chauvinistic views upon a friendly jurisdiction argue against a finding of unavailability of justice on this ground, particularly as the experts’ views on this were inconclusive; the possibility of statute of limitation is held [68] largely to be of the claimants’ own making (ia because they had started but discontinued proceedings in Cyprus. Limb 2 therefore, had it mattered, would not have been satisfied and had limb 1 been met, a stay of the proceedings in England would have been ordered.

Geert.

Defendant domiciled in E&W. Claimants (settlors of 2 Cypriot trusts sue for losses suffered in connection with Trusts' investments. Forum non argument dismissed. Another lengthy discussion following Brexit

Al Assam ea v Tsouvelekakis [2022] EWHC 451 (Ch) https://t.co/Sd7TJSkG3k

— Geert Van Calster (@GAVClaw) March 8, 2022

Many thanks indeed Hélène Péroz for flagging Sherpa & Les Amis de la terre France v Perenco ECLI:FR:CCASS:2022:C100199. The issue concerns what law applies to the issue of standing of NGOs in making recourse to France’s action for preserving evidence, in this case evidence relating to a future claim that France’s Perenco is liable for environmental damage in Congo.

The Court of Appeal had held that the issue of standing is subject to lex causae, which under the Rome II Regulation it had identified as the laws of Congo (whether this judgment included discussion of Article 7 Rome II on environmental damage, I do not know) and had declared the claim inadmissible.

The SC correctly in my mind holds that the issue of standing falls under the evidence and procedure carve-out of Rome II and is subject to lex fori, French law. However seeing as that law in the case of public interest litigation such as here requires the claimant to have included the broad purpose of the sector at issue within its scope of activities under its by-laws, the SC also holds that whether a particular claim is within the NGO’s scope, needs to be determined in accordance with its lex societatis.  This leads to the interesting conclusion (of little relevance in casu) that a foreign NGO’s action remit will have to be determined by foreign lex societatis, and that those foreign laws which have a less broad view of corporate scope, may put a spanner in the works of cross-border business and human rights litigation. (Quite easily circumvented one assumes by involving NGOs of an ‘attractive’ jurisdiction).

The SC nota bene does not specify whether its views on corporate (here: NGO) action radius are a result of the corporate carve-out in Rome II.

Geert.

EU Private International Law, 3rd ed. 2021, para 4.79 ff.

 

Must read this properly tomorrow for currently on cooking duty. (All under control. Nothing burning).
Potentially quite exciting. French SC on the applicable law for capacity to represent a (Congolese) NGO re a #bizhumanrights environmental claim. https://t.co/ZP4IxXAzWi

— Geert Van Calster (@GAVClaw) March 9, 2022

In Klifa v Slater & Anor [2022] EWHC 427 (QB), concerning a ski accident in Courchevel, France, the Claim Form was issued on 14 January 2021, just within the three year limitation period of England and Wales but just after the Brexit “Exit Day” also know as IP day (Brexit implementation day) (of 31 December 2020). Defendants take advantage of that to argue a forum non conveniens defence (which readers will know would have been impossible under Brussels Ia). France is suggested to be the ‘most appropriate forum’.

The skiing accident took place on 27 January 2018 and when (and as still is the case) the Claimant was domiciled and resident and habitually resident in France, the First Defendant was domiciled and resident (they being on holiday) in England & Wales, and the Second Defendant (the insurance company) was domiciled in England & Wales. Under Rome II, French law is the applicable law, other than for procedural law, including as to recovery of legal and other costs of the litigation, which is subject to English law, lex fori.

That latter element returns (with reference to ia Wall v Mutuelle de Poitiers) [25] as part of the forum non conveniens assessment, seeing as (Dagnall M) ‘in consequence of the difference in their methods of adducing expert evidence, the English & Welsh jurisdiction procedural approach is likely to be considerably more expensive than that in France, and which is reflected in the costs rules and approach of each country.’

At [40] Master Dagnall sums up the many issues leading to the case being very ‘French’ in nature, deciding on balance however [42] that the defendants have not met the (high hurdle) of proving that France is “distinctly” or “clearly” the more appropriate forum.

At [44] ff he holds obiter that even if they had met that test, a stay in favour of proceedings in France would not assist with “achieving the ends of justice”L the second part of the forum non test. At [48] two factors are singled out: enforcement will have to take place in England; and a lot of work prior to the claim form being issued was carried out prior to IP day, when forum non was not an issue. Recovering those costs would be impossible in France.

The point has been made ad nauseam by many and this case is a good illustration: post Brexit, forum non is back with a vengeance and it is a time-consuming and costly business.

Geert.

Evidence & procedure, quantification of damages under French law, impact on forum non conveniens (denied on the facts) in case of tort which occurred whilst Brussels Ia applied but with claim brought after Brexit
Klifa v Slater & Anor [2022] EWHC 427 (QB) https://t.co/xCfJYJws2f

— Geert Van Calster (@GAVClaw) March 8, 2022

bpost, Nordzucker e.a
DFON
Cumul de poursuites et de sanctions de nature pénale en droit de la concurrence : la Cour précise la protection qu’offre le droit de l’Union contre la double incrimination

Prokurator Generalny (Chambre disciplinaire de la Cour suprême - Nomination)
Principes du droit communautaire
La Cour déclare irrecevable la demande de décision préjudicielle d’une juridiction polonaise, visant à savoir si le droit de l’Union lui confère le pouvoir, qu’elle ne détient pas en vertu du droit polonais, de constater que la relation de travail d’un juge est inexistante en raison de vices entachant l’acte de nomination de celui-ci

It is interesting to imagine the legal position in Lambert v Motor Insurers’ Bureau (Rev1) [2022] EWHC 583 (QB) in a scenario of retained EU law post Brexit, rather than firmly within the scope of the Brussels Ia Regulation and applicable law under Rome II. By the mechanisms of EU consumer law and EU insurance law, mixed with the finest legal machinery in the area of subrogation, a UK resident party injured in a motor accident (here: at a private racing circuit in Spain) abroad is entitled to claim compensation from the Motor Insurers’ Bureau (‘MIB’) in certain circumstances, clarified by the UKSC in Moreno v MIB [2016] UKSC 52. Crowther DJ summarises these circumstances as [6]

broadly speaking, that the guarantee fund of the member State in which the accident occurred would be liable to compensate the injured person on the facts of the individual case, when applying the rules of the local law which govern such actions by injured persons against the local guarantee fund. In other words, if Mr Lambert can show that the Spanish guarantee fund would have been liable to him in respect of the accident, he can claim such compensation from the MIB as would have been payable by the local guarantee fund. It is common ground in this case that the scope of the insurance obligation for use of motor vehicles under Spanish law extended to cover participation in the track event, notwithstanding the fact that it was not on a road or other public place.

The latter element is unlike the UK where seemingly third party motor insurance for motor sport is not commercially available.

The law applicable to the claim is agreed to be English law. While not specified in the judgment, this is presumably because of Article 4(2) Rome II (where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply): both Mr Lambert, claimant, and Mr Prentice, said to be responsible for the accident, were participants in a track event, organised by a UK based track day operating outfit called Track Sense; both travelled to Spain from the UK.

Spanish law however determines the preliminary issue as highlighted by the Supreme Court, Spanish law being the law which would have been applicable to any hypothetical claim which Mr Lambert might have brought against the Spanish guarantee fund. This is where things get interesting. The Motor Insurance Directives support a direct claim against one’s national MIB, subject to the law of the MS where the accident happened, sustaining liability in the circumstances. However Rome II somewhat curtails its action radius by declaring that it does not apply to ‘evidence and procedure’. This is a carve-out which is problematic in specific instances as I explain ia here. On such instance are issues of limitation however these it seems ([14)] were not pursued.

In the case at issue, parties’ agreement ([9]) is that by analogy to A1(3) Rome II, matters of evidence and procedure are outside the scope of the material substantive law and fall to be determined in accordance with English law as the law of the forum (lex fori in principle determines issues of evidence and procedure). Equally, on an analogous basis to A22(1) Rome II, parties agree that Spanish law will apply insofar as it contains rules which raise presumptions of law or determine the burden of proof.

The common law treating foreign law as fact, means the content of that foreign law is established often with the help of parties (if need be cross-examined) experts however [17] is for the English judge to determine. The remainder of the case therefore is spent discussing the expert evidence (with the judge doing some fine distinguishing of the case-law both experts referred to) together with the factual elements, to conclude [94]

Mr Lambert’s actions were 25% causative of the accident and Mr Prentice’s 75%. It follows that Mr Lambert’s claim for damages against MIB succeeds to the extent of 75% of his loss or damage.

Lest my understanding of the insurance Directives fails me (which it could well do), this means that claim on 75% of the damage remains to be judged under English  tort law. With presumably a repeat of the causation test, this time under English law.

A clearly written judgment which no doubt benefitted from the considerable practice experience of the judge on the matters at hand.

Geert.

 

Applicable law, accident at motorcycle track event
Rome II evidence, procedure exception mutatis mutandis (per motor insurance regulations), and approach to Spanish law as a matter of fact
Judgment by @sarahcrowtherqc
Lambert v [MIB] [2022] EWHC 583 (QB)https://t.co/OhVSZ1ljt0

— Geert Van Calster (@GAVClaw) March 16, 2022

Commission / Danemark (AOP Feta)
Agriculture
Selon l’avocate générale Ćapeta, le Danemark a manqué aux obligations qui lui incombent en vertu du droit de l’Union en ne cessant pas d’utiliser l’appellation « Feta »

Zubaydah v Foreign And Commonwealth Office & Ors [2022] EWCA Civ 334  discusses the same issue as Rahmatullah and Ali v MOD and FCO which I review here (and in which I later inserted the High Court judgment in current case).

What law is applicable to torts allegedly committed by the UK Security Services against a detainee subjected to “enhanced interrogation techniques” by the US CIA. The essence of the claimant’s claim is that the Services were aware that the claimant was being subjected to extreme mistreatment and torture at secret CIA “black sites” in six different countries, but nevertheless sent numerous questions with a view to the CIA eliciting information from him, expecting and intending (or at any rate not caring) that the claimant would be subject to such mistreatment and torture at interrogation sessions conducted for the purpose of attempting to obtain this information.

The first instance judge had refused to overturn the mosaic of six applicable laws (of the countries involved: Thailand, Poland, the US’ base at Guantanamo Bay, Morocco, Lithuania and Afghanistan) which follows from the standard application of the residual English conflict of laws rules (the EU Rome II Regulation does not apply): these point to lex locus damni. Males LJ to my mind unconvincingly does overturn that general rule, with  some reliance on the Supreme Court in VTB Capital Plc v Nutritek. 

The Court holds [37] that the judge had failed to focus on the tort allegedly committed by the UK Services (with too much emphasis on the treatment of claimant in the six countries, by the CIA); [38] wrongly discounted the reasons advanced by claimant for saying that the factors connecting the tort with the Six Countries were of reduced significance (this includes the fact that the claimant had no control whatever over his location and in all probability no knowledge of it either; and that there was a (jurisdictional) forum shopping element in the transfers to the 6 countries: keeping him away from jurisdictions with less forgiving rules on the practices concerned); and [40] the fact that the actions taken by the Services were undertaken “for the perceived benefit of the UK”, that is to say in the interests of this country’s national security.

The reasonable expectations of claimant play a big role in the analysis: claimant could have expected [41] that the conduct of any country’s security services having to do with him would be governed by the law of the country concerned. As for the Services, they would reasonably have expected that their conduct here would be subject to English law.

Throughout the judgment Males LJ puts great emphasis on what he notes [22] as an overarching aim of the relevant Act, which is ‘the reasonable and legitimate expectations of the parties to a transaction or an occurrence.’ However that is the Law Commission’s view on the raison d’être of conflict of laws full stop. I am not so sure it can serve as a determinative principle in the application of a specific rule of the Act.

I am not saying that the outcome of the case is wrong. Yet the judgment gives the impression of a correction of the judge’s factual balancing act between the different factors, rather than an error of law, and the emphasis on legitimate expectations feels a bit artificial in the circumstances. Add to this that [35] nobody suggested on the facts of this case that one applicable law might apply to the tort of misfeasance in public office and another to the tort of false imprisonment. Both parties proceeded on the basis that the law applicable to the claimant’s claims as a whole was either English law or the law of the Six Countries, and so did the Court of Appeal. This, too, may make the judgment’s authority limited.

Finally Males LJ holds obiter [51 ff] and correctly that it is too early to decide whether the application of the foreign laws, had they been applicable, would have had to be set aside on the basis of ordre public: while some evidence on the law of the 6 countries had been presented, there had not yet been proper discussion of same.

Geert.

See my analysis of an earlier, similar High Court case with different outcome here https://t.co/NRZYDLJjZJ (Rome I does not apply). https://t.co/N3bKc7g3gm

— Geert Van Calster (@GAVClaw) March 16, 2022

MEKH / ACER
Énergie
Le Tribunal déclare inapplicables les dispositions du règlement 2017/459 relatives au processus de création de capacités supplémentaires pour le transport de gaz

Autorité des marchés financiers
Liberté d'établissement
Liberté de la presse : la divulgation par un journaliste d’une information privilégiée portant sur la publication prochaine d’un article relayant des rumeurs concernant des sociétés cotées en Bourse est licite lorsqu’elle est nécessaire pour mener à bien une activité de journalisme et respecte le principe de proportionnalité

The Court of Justice delivered yesterday its judgment in case C‑498/20 (BMA), which is about Brussels I bis and Rome II. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version) :

« 1) L’article 7, point 2 [Bruxelles I bis] doit être interprété en ce sens que la juridiction du lieu d’établissement d’une société dont les dettes sont devenues irrécouvrables, parce que la société « grand-mère » de cette société a méconnu son devoir de diligence à l’égard des créanciers de celle-ci, est compétente pour connaître d’une action collective en dommages et intérêts relevant de la matière délictuelle ou quasi délictuelle, que le curateur à la faillite de cette société a introduite, dans le cadre de sa mission légale de liquidation de la masse, pour le compte, mais non pas au nom, de l’ensemble des créanciers.

2) La réponse à la première question posée à titre préjudiciel n’est pas différente s’il est tenu compte du fait que, dans l’affaire au principal, une fondation agit pour défendre les intérêts collectifs des créanciers et que l’action introduite à cette fin ne tient pas compte des circonstances individuelles des créanciers.

3) L’article 8, point 2, du règlement no 1215/2012 doit être interprété en ce sens que, si la juridiction saisie de la demande originaire revient sur sa décision de se déclarer compétente pour connaître de cette demande, elle perd, de ce fait, de plein droit, également sa compétence pour connaître des demandes introduites par la partie intervenante.

4) L’article 4 [Rome II] doit être interprété en ce sens que la loi applicable à une obligation de réparation au titre du devoir de diligence de la société « grand-mère » d’une société déclarée en faillite est, en principe, celle du pays où est établie cette dernière, bien que la préexistence d’une convention de financement entre ces deux sociétés, assortie d’une clause d’élection de for, soit une circonstance pouvant établir des liens manifestement plus étroits avec un autre pays, au sens du paragraphe 3 de cet article ».

Source : https://curia.europa.eu/juris/document/document.jsf?text=&docid=255424&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=686272

AG Pikamae delivered yesterday his opinion in case C‑7/21 (Lkw Walter Internationale Transportorganisation AG), which is on the Service Regulation and Brussels I bis (Slovenian decision delivered in the absence of the defendant and notified in Austria in Slovenian only and with only 8 days to oppose). The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version) :

« 1) L’article 8, paragraphes 1 et 3, du règlement (CE) nº 1393/2007 […] lu conjointement avec l’article 47 de la charte des droits fondamentaux de l’Union européenne, doit être interprété en ce sens qu’il ne s’oppose pas à une réglementation nationale du droit de l’État de condamnation selon laquelle le délai pour exercer un recours contre une décision matérialisée par un acte judiciaire signifié ou notifié conformément au règlement nº 1393/2007 commence à courir dès la signification ou la notification de l’acte en question et non uniquement lorsque le délai d’une semaine prévu au paragraphe 1 dudit article pour refuser de recevoir cet acte a expiré.

2) L’article 45, paragraphe 1, sous b), et l’article 46 du règlement (UE) nº 1215/2012 […] lus conjointement avec l’article 47 de la charte des droits fondamentaux, doivent être interprétés en ce sens qu’il y a lieu de refuser la reconnaissance et l’exécution d’une décision qui n’a pas été rendue dans le cadre d’une procédure contradictoire lorsqu’un recours contre la décision doit être exercé dans une langue autre que la langue officielle de l’État membre dans lequel le défendeur réside ou, s’il existe plusieurs langues officielles dans cet État membre, autre que la langue officielle ou l’une des langues officielles du lieu où il réside, et que, selon le droit de l’État membre dans lequel la décision a été rendue, le délai non renouvelable pour exercer le recours n’est que de huit jours civils.

3) L’article 18 TFUE doit être interprété en ce sens qu’il ne s’applique pas à une situation dans laquelle le destinataire d’un acte judiciaire a renoncé à exercer son droit de refuser la notification ou la signification dudit acte conformément à l’article 8, paragraphe 1, du règlement no 1393/2007 ».

Source : https://curia.europa.eu/juris/document/document.jsf?text=&docid=255446&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=686272

The Court of Justice delivered earlier this month (3 March 2022) its judgment in case C‑421/20 (Acacia Srl v BMW AG), which is about Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs and Rome II:

« Article 88(2) and Article 89(1)(d) of [Regulation (EC) No 6/2002] and Article 8(2) [Rome II] must be interpreted as meaning that the Community design courts before which an action for infringement pursuant to Article 82(5) of Regulation No 6/2002 is brought concerning acts of infringement committed or threatened within a single Member State must examine the claims supplementary to that action, seeking the award of damages, the submission of information, documents and accounts and the handing over of the infringing products with a view to their being destroyed, on the basis of the law of the Member State in which the acts allegedly infringing the Community design relied upon are committed or are threatened, which is the same, in the circumstances of an action brought pursuant to that Article 82(5), as the law of the Member State in which those courts are situated ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=254964&mode=req&pageIndex=3&dir=&occ=first&part=1&text=&doclang=EN&cid=730419

The Court of Justice (Grand Chamber) delivered on 22 February 2022 its judgment in case C‑430/21 (RS), which is about the Rule of Law, the principle of primacy of EU law and the protection of judges from disciplinary proceedings in their application of EU Law:

«  The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which the ordinary courts of a Member State have no jurisdiction to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law.

2. The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which a national judge may incur disciplinary liability on the ground that he or she has applied EU law, as interpreted by the Court, thereby departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=254384&mode=req&pageIndex=7&dir=&occ=first&part=1&text=&doclang=EN&cid=730419

The London Steam-Ship Owners’ Mutual Insurance Association Ltd v The Kingdom of Spain M/T “PRESTIGE” (No. 5) [2022] EWCA Civ 238 is an appeal against The London Steam-Ship Owners’ Mutual Insurance Association Ltd v The Kingdom of Spain [2020] EWHC 1920 which I reported on here.

The issue on this appeal (tag ‘Prestige’ on this blog and ‘Prestige(@GAVClaw)’ on Twitter search will give you plenty of returns) is the very reference of the judge to the CJEU. At Kirchberg the case is known under reference C-700/20 and the hearing was held a few weeks back.

At issue is essentially whether the judge should have made reference to the CJEU at all, hence querying the ‘necessity’ of a reference to the CJEU including in this particular context of Brexit (with the Court of Appeal now longer being able to refer to Luxembourg by the time the case would have reached it).

Phillips LJ holds [47] that the reference was not necessary in light of CJEU authority on that element of necessity and that the judge should not have made it. Yet under the EU rule of law, a Court of Appeal cannot set aside the reference: [56] all the CA can do is ask the judge to reconsider, with [60] a call for fast-tracking in the event the CJEU might  rule before the judge withdraws the reference: if that latter is what he would be minded to do.

An interesting EU institutional law issue.

Geert.

 

1/2 EU rule of law
LDN Steam-Ship Owners' Mutual Insurance v Spain re Prestige [2022] EWCA Civ 238
Held CJEU referral should not have been made and judge must reconsider his reference to Luxembourghttps://t.co/tIAj7hmU8o
For judgment appealed see https://t.co/LgOFOXsRmo

— Geert Van Calster (@GAVClaw) March 4, 2022

 

ˮGrossmaniaˮ
Libre circulation des capitaux
Les personnes déchues, en méconnaissance du droit de l’Union, de leurs droits d’usufruit sur des terres agricoles en Hongrie doivent pouvoir réclamer la réinscription de ces droits au registre foncier ou une compensation

Suppipat & Ors v Siam Commercial Bank Public Company Ltd & Ors [2022] EWHC 381 (Comm) repeats (and indeed refers to) the inadequate discussion of applicable law and privilege in PJSC Tatneft v Bogolyubov which I discuss here.

The application is for an order prohibiting respondents from using or deploying in these proceedings certain documents covered by legal professional privilege and/or containing confidential information, copies of which the respondents obtained pursuant to subpoenas in Thailand.

It is not in dispute apparently [26] and in any event Pelling J would have concluded that whether a document is capable of being privileged is a question to be determined as a matter of English conflicts law by the lex fori, which in this case is English law. That follows not undisputedly from the Rome Regulation which applies to the proceedings as either acquired or retained EU law (it is not clear when the claim form was issued).

The next question that arises is whether the Documents should be treated as privileged in this litigation notwithstanding that they have been obtained by the respondents lawfully by operation of an order of a court of competent jurisdiction in Thailand. This question is discussed as one of an alleged breach of an obligation of confidence (the subpoena in Thailand does not mean that the documents have entered the public domain) and the law that should apply to that obligation which both parties suggest must be discussed under Rome II. Thai law according to the defendants ([38-39] an unjust enrichment /restitution claim under Article 10; alternatively locus damni under the general rule of Article 4 with Thailand as the locus damni, it being the place of disclosure) , however claimants maintain that the issue is to be resolved applying English law for essentially all the reasons set out in the authorities deciding that English law applies to the question whether a particular document is privileged or not.

 

 

Pelling J [40] ff agrees with the claimants and holds that even if Rome II were to apply, both A16 Rome II’s overriding mandatory law rule and A26’s ordre public rule would trump Thai law given the robust nature of legal advice privilege in English law. That statement leads to an incorrect application of both Articles (for starters, A26 requires case-specific, not generic application).

The Rome II discussion cuts many corners and is certainly appealable. The judge’s views put the horse before the cart. Neither Article 16 nor Article 26 are meant to blow a proper Rome II analysis out off the water. Nor as I flagged, does the judgment do justice to the proper application of A16 and 26.

Geert.

EU Private International Law, 3rd ed. 2021, para 4.81.

Documents must be treated as privileged under English lex fori notwithstanding they were obtained lawfully by court order of competent jurisdiction in Thailand
Considers comity and extraterritoriality

Suppipat v Siam Commercial Bank [2022] EWHC 381 (Comm)https://t.co/dJivtUuef4

— Geert Van Calster (@GAVClaw) March 4, 2022

Lord Justice Coulson the other week refused [PGI Group Ltd v Thomas & Ors (Application for Permission to Appeal) [2022] EWCA Civ 233] permission to appeal against the High Court’s refusal to grant a capped cost order – CCO in the Malawi exploitation and abuse case.

Coulson LJ firstly grants that the judge may have expressed himself more clearly on some of the technical aspects of the costs in the case however did not misapply relevant CPR rules. Secondly, on the more substantive element of the case the Court of Appeal held that the judge was right to ignore the much lower cost implications of possible Malawi proceedings for to do so, as I flagged in my post on the High Court judgment, would bring in a forum non conveniens defence via the back door of cost orders: [45]:

The costs of pursuing the claim in Malawi must be irrelevant to the making of a CCO in the UK. If a claim is validly brought in the UK, then that brings with it the reasonable/proportionate costs of pursuing those proceedings in the UK.

A good judgment.

Geert.

Lord Justice Coulson refusing permission to appeal against judgment rejecting CCO Capped Cost Order in Malawi #bizhumanrights case

PGI Group v Thomas & Ors (Application for PTO) [2022] EWCA Civ 233 https://t.co/EpGrJi6Smq

For first instance judgment see https://t.co/Em5jyZADeM pic.twitter.com/C7M8ENEETa

— Geert Van Calster (@GAVClaw) February 25, 2022

 

Mahmood v The Big Bus Company [2021] EWHC 3395 (QB) is a good illustration of the applicable law process under the 1980 Rome Convention and its inclusion on the blog is mostly for pedagogic /teaching purposes. It even might be a good illustration of the bootstrap principle (meaning an issue on the very existence of the contract needs to be determined by the putative lex contractus) except [94] parties agree that whatever the conclusion as to the applicable law, UAE law can be deemed to be the same as English law in relation to the validity, construction, and effect of the Heads of Terms.

On 27 July 2001, during discussions in London regarding a possible joint venture to operate tour buses in Dubai, the parties signed a document entitled “Heads of Terms”.

Claimant says the Heads of Terms gave rise to a binding contract between the parties, which the Defendant subsequently breached.  The claim is resisted by the Defendant, arguing that, whether assessed under the law of England and Wales or under the law of the UAE, the claim is time-barred.  In the alternative, the Defendant contends there was no binding contract between the parties, or, if there was, that it was superseded by events that took place in 2002, or that the Claimant acted in repudiatory breach of any such contract, whereas the Defendant itself did not breach a contractual obligation owed to the Claimant.  It further disputes that there is any basis for the damages claimed by the Claimant in these proceedings.

The blog’s interest in in the first Q only and this is where [65] ff Eady J does a good job at applying the Convention without verbosity. Reference is best made to the judgment itself.

Geert.

Mahmood v The Big Bus Company [2021] EWHC 3395 (QB)
Ia choice of law for English or UAE law under 1980 Rome Convention
Held EN law expressly chosen, alternatively characteristic performance leading to same result, ditto proper law of the contracthttps://t.co/jizbet52aR

— Geert Van Calster (@GAVClaw) December 16, 2021

I am in blog queue clear-out mode today. Thank you Maxime Barba for flagging the French SC’s December judgment on the application of Rome I’s (in fact the Rome Convention but the provisions have not materially changed) protective regime for employees. At issue is a contract for which parties had chosen Moroccan law, with the Court of Appeal setting aside that choice under A6 Rome Convention, now A8 Rome I, in favour of the French law’s provisions for dismissal, binding upon the employer by virtue of a collective labour agreement.

As Maxime notes, an interesting reference is the SC’s view on what law has to be considered ‘more favourable’. This weighing is a consequence of A6 stipulating

in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable under paragraph 2 in the absence of choice.

Clearly setting aside only occurs when the default law (the one that applies in the absence of choice) is more favourable to the employee. How though does one assess that more protective character? Piecemeal, checking every part of the employment relationship? Or more ‘global’, which would mean the exercise might let the employee down on some of the consequences. And once the comparison made, how much of the offending law does one set aside? The SC first of all notes that

[12] D’abord, la détermination du caractère plus favorable d’une loi doit résulter d’une appréciation globale des dispositions de cette loi ayant le même objet ou se rapportant à la même cause.

The judge’s exercise must limit itself to those parts of labour law which are at issue in the dispute: not an overall comparison, in other words. However as I understand the judgment, the employer had argued that once the comparison made (here: French law including a longer list of dismissal without cause than Moroccan law), the judge must only give sectional priority to the default law: here: the judge, it is argued, must treat the end of the relationship as one without cause, but must then resurrect Moroccan law’s consequences to such dismissal without cause. The SC on the other hand puts a fork in the road: once the road to French ‘dismissal without cause’ taken, French consequences for same apply. (The SC does in the end annul on the basis of a wrong calculation of the severance package, under French law).

Geert.

EU Private International Law, 3rd ed. 2021, Heading 3.2.5.

French SC on mandatory default employment law under Rome I trumping choice of law made. https://t.co/jFHE9ZQPol

— Geert Van Calster (@GAVClaw) December 9, 2021