Messier-Dowty Ltd v Sabena SA

Negative declarations are discretionary relief. Their availability depends on their usefulness in achieving justice, with careful scrutiny of procedural complications and possible injustice arising from reversing the parties' usual roles. Commercial disputes and possible tortious liability are subject to this approach.

Usefulness alone does not justify joining a prospective claimant. Joinder must accord with the requirement to deal with cases justly. Seeking a jurisdictional advantage through otherwise appropriate proceedings is permissible. Under article 6(1) of the Brussels Convention, a legitimate domiciled defendant is insufficient: the claims must also be related when proceedings are instituted, so that joint determination is expedient to avoid irreconcilable judgments. Convention jurisdiction does not prevent domestic procedural control of unjustified proceedings.

The claimant Dowty companies designed and manufactured landing gear for an aircraft supplied by Airbus, a French aircraft-manufacturing consortium, to Sabena, a Belgian airline. Following a landing-gear failure, Sabena sustained substantial losses. BAA, Airbus's British partner, had supplied design information which Dowty alleged was inadequate. Dowty and BAA were registered in England.

Sabena's purchase contract with Airbus provided for French law and exclusive Paris jurisdiction. The landing-gear supply contract identified BAA as purchaser acting for Airbus and provided for English law and exclusive English jurisdiction. Sabena obtained the appointment of experts in France under article 145 of the new Civil Code. That procedure did not commence substantive proceedings.

Dowty brought English proceedings seeking declarations of non-liability against Sabena, Airbus and BAA, together with claims against Airbus and BAA. Moore-Bick J set aside service on Sabena and declared that the English court lacked jurisdiction over it. Dowty appealed, while Sabena subsequently commenced contractual proceedings against Airbus in France. The central issues were whether the negative declaration and Sabena's joinder were proper under domestic procedure and whether article 6(1) of the Brussels Convention supplied jurisdiction.

The appeal was dismissed unanimously. Lord Woolf MR delivered the substantive judgment, with which Lady Justice Hale and Lord Mustill agreed.

1. The availability of a negative declaration was a matter of discretion rather than an artificial jurisdictional restriction. The pragmatic approach discussed in the Court of Appeal and House of Lords decisions in Camilla Cotton Oil Company v Granadex S.A., [1975] 1 Lloyds Rep. 470 and [1976] 2 Lloyds Rep. 10, required consideration of usefulness. Negative declarations could assist justice in commercial and domestic disputes. Their reversal of the parties' usual roles nevertheless required careful scrutiny of procedural complications and possible injustice. The jurisdictional approach attributed to Re Clay and applied in subsequent authorities should not impose artificial limits on the remedy.

2. There was no general principle excluding negative declarations concerning possible tortious liability or confining them to wholly exceptional cases. Few such cases might be suitable, particularly where an injured party could choose which defendants to sue. Moreover, usefulness alone did not establish that a claim or joinder was appropriate.

3. Under Part I of the Civil Procedure Rules, joinder had to accord with the obligation to deal with cases justly. Sabena's contractual claim against Airbus belonged exclusively in France under article 17 of the Brussels Convention. Joining Sabena would impose litigation in a second jurisdiction without securing the proposed single determination of responsibility. Sabena had made no substantive claim against Dowty, might never need to do so, and was not shown to obtain any advantage from the English proceedings. Its joinder was therefore premature and unjustified.

4. Seeking a jurisdictional advantage by commencing otherwise appropriate proceedings attracted no adverse inference. The principle stated in Boss Group v Boss France S.A., [1996] 4 All ER 970, applied. Adding a defendant without a credible claim solely to obtain jurisdiction over another party would, however, be abusive. BAA was a legitimate defendant because Dowty's allegation of negligent provision of design information could support a claim independently of contractual liability.

5. Article 6(1) required more than a legitimate domiciled defendant. Applying Kalfelis v Schroder, [1988] 5 ECR 5565, the claims had to be related when proceedings were instituted, making joint determination expedient to avoid irreconcilable judgments. With no claim by Sabena against Dowty, that requirement was not established. A contractual claim against BAA alone was insufficient for this purpose.

6. Removing Sabena was consistent with the Convention's jurisdictional regime. Moore-Bick J had reached the correct result, although his reasoning was not wholly accepted. The procedural decision could be reconsidered if Sabena made a claim or reached a position in which it could decide whether to claim against Dowty. The appeal was dismissed, and leave to appeal to the House of Lords was refused.

• Court of Appeal: Dismissed Dowty's appeal on 21 February 2000, leaving the order removing Sabena from the English proceedings in place. The result was affirmed on reasoning which did not wholly accept the judge's approach. Leave to appeal to the House of Lords was refused.
• High Court, Commercial Court: On 26 July 1999, Moore-Bick J set aside service of the claim form on Sabena and declared that the court lacked jurisdiction over it. He granted leave to appeal and stayed the effect of his order pending appeal.
• High Court, Commercial Court: In a related procedural application in the same litigation, Langley J refused Airbus and BAA's application to stay the English proceedings on 3 December 1999.