Messier-Dowty Ltd v Sabena SA

A court has inherent jurisdiction to grant a declaration of non-liability. The remedy is discretionary, not barred by a supposed jurisdictional rule, and should be granted where it serves a useful purpose and assists justice.

The unusual reversal of claimant and defendant roles calls for careful scrutiny. A prospective claimant should not ordinarily be joined merely to obtain a negative declaration where it has made no claim and joinder would require it to litigate unwillingly in a second jurisdiction. Under the Brussels Convention, Article 6(1) requires related claims which it is expedient to determine together in order to avoid irreconcilable judgments.

Messier-Dowty Ltd v Sabena SA concerned damage following the failure of landing gear on a Sabena Airbus aircraft at Brussels Airport. Dowty, which designed and manufactured the gear, brought English proceedings seeking declarations that it was not liable to Sabena, Airbus or BAA. It alleged that Airbus and/or BAA had supplied inadequate design data.

Sabena had commenced an expert-investigation procedure in France and later sued Airbus there under their French exclusive-jurisdiction clause. Moore-Bick J set aside service on Sabena, declared that the English court lacked jurisdiction over the claim against it, and stayed his order pending appeal. Dowty appealed. The central issues were whether a negative declaration could properly be sought against Sabena and whether Sabena could be joined under the Brussels Convention.

1. Appeal dismissed unanimously. Lord Woolf MR gave the reasons, with Lady Justice Hale and Lord Mustill agreeing. Moore-Bick J had reached the correct result, although not on all of the reasoning he had used.

2. The court rejected the proposition that there is no jurisdiction to grant a negative declaration where the prospective defendant has not threatened proceedings. The jurisdiction is inherent and is regulated, rather than conferred, by procedural rules. The question is one of discretion. Negative declarations are unusual and require careful scrutiny, but may be valuable where they serve a useful purpose and help achieve justice.

3. The declaration against Sabena could not properly be pursued at that stage. Sabena had a contractual claim against Airbus to be litigated in France. It had not made a claim against Dowty, and might never need to do so. Joinder would compel Sabena to defend separate English proceedings while pursuing its French claim. It would not secure the proposed single determination of responsibility. Joinder was therefore inconsistent with dealing with the English proceedings justly, although it could be reconsidered if Sabena later made, or was ready to make, a direct claim against Dowty.

4. The Brussels Convention did not require a different result. Article 2 made Belgium Sabena's primary forum. Article 6(1), as construed in Kalfelis v Schroder [1988] 5 ECR 5565, applies only where the claims against several defendants are related when proceedings begin and joint determination is expedient to avoid irreconcilable judgments. That condition was not met while Sabena had asserted no claim against Dowty. Article 17 also gave France exclusive jurisdiction over Sabena's contractual claim against Airbus.

5. Starting otherwise proper proceedings early to obtain a Convention advantage is not objectionable forum shopping. The position differs where a defendant is added solely to found jurisdiction despite the absence of a credible claim. BAA was, however, a proper defendant to Dowty's claims.

• Court of Appeal: The appeal in Messier-Dowty Ltd v Sabena SA, [2000] 1 WLR 2040, was dismissed. The court upheld the removal of Sabena from the English proceedings, while differing from part of the lower court's reasoning on negative declarations.
• High Court, Queen's Bench Division, Commercial Court: On 26 July 1999, Moore-Bick J set aside service on Sabena, declared that the court had no jurisdiction over the pleaded causes of action against it, and stayed the order pending this appeal. No citation is stated in the judgment.