WATSON v. FIRST CHOICE HOLIDAYS AND FLIGHTS LTD. AND ANOTHER [2001] EWCA Civ 972

Article 6(1) of the Brussels Convention requires a sufficient connection between claims against different defendants to justify hearing them together and avoid irreconcilable judgments. Claims in contract and tort are not automatically excluded merely because they have different legal classifications. That classification may be one factor in the assessment unless the European Court of Justice has laid down a rigid contrary rule. The risk to be avoided may include inconsistent findings of fact as well as incompatible conclusions of law. Where the scope of an earlier European Court judgment is materially uncertain and may determine jurisdiction, a national appellate court should seek a preliminary ruling.

Mr Watson bought a package holiday from First Choice, an English tour operator, and was injured at accommodation in Tenerife owned or managed by Aparta, a Spanish company. He sued First Choice in England in contract and sought to join Aparta in tort under article 6(1) of the Brussels Convention. Aparta challenged jurisdiction. Master Eyre dismissed the application, but Mr James Goudie QC, sitting as a Deputy Judge of the High Court, allowed the appeal and set aside jurisdiction over Aparta.

The Court of Appeal considered whether the claims were sufficiently connected, particularly in light of paragraph 50 of Réunion Européenne. It also considered whether article 6(1) could apply where some risk of inconsistent judgments remained because another claimant had proceedings in Spain. The central issue was whether the contract/tort distinction was decisive or merely one factor in assessing the connection.

1. Appeal and reference. The court rejected both the submission that the appeal should be dismissed and the submission that it should be allowed. It ordered a reference to the European Court of Justice for preliminary rulings on the scope of article 6(1).
2. Applicable framework. The domicile rule in article 2 is the basic principle of the Brussels Convention. Articles 5 and 6 are exceptions and require restrictive interpretation. Article 6(1) requires a connection between claims against different defendants such that it is expedient to determine them together to avoid a risk of irreconcilable judgments, following Kalfelis.
3. Contract and tort claims. The claim against First Choice was a matter relating to contract, while the claim against Aparta was a matter relating to tort, delict or quasi-delict. The court rejected the argument that the First Choice claim ceased to be contractual because liability was alleged to depend on Aparta’s delictual fault. However, it questioned whether paragraph 50 of Réunion Européenne imposed an inflexible rule that claims with different legal bases could never be connected under article 6(1).
4. Nature of the connection. But for paragraph 50, the court would have held that the contract/tort distinction was at most one factor in deciding whether the connection was sufficient. It also considered the article 6(1) inquiry distinct from the special-jurisdiction tests in article 5.
5. Irreconcilability. The court considered that article 6(1) might apply where joinder avoided the risk between one claimant and two defendants, even though some risk remained in related proceedings involving other parties. It also treated inconsistent findings of fact as relevant, following Gascoine v. Pyrah.
6. Questions referred. Four questions were referred concerning the extent of the required connection, inconsistent findings of fact, different contractual and tortious legal bases, and package-holiday claims against an organiser and a foreign supplier.

• Court of Appeal (Civil Division) — [2001] EWCA Civ 972: ordered a reference to the European Court of Justice for preliminary rulings before determining the appeal.
• High Court of Justice, Queen’s Bench Division — Deputy Judge Mr James Goudie QC allowed Aparta’s appeal from Master Eyre’s decision and set aside jurisdiction over Aparta.
• Master Eyre — dismissed Aparta’s application to set aside the proceedings for want of jurisdiction.