Henderson v Jaouen

Under Article 5(3), the place where the harmful event occurred is an autonomous Convention concept. In a traffic accident occurring wholly in one jurisdiction, the harmful event is the original tort and injury at the place of the accident. A later deterioration in the claimant’s condition elsewhere is a consequence of that tort, not a new harmful event, even if national law treats it as a fresh cause of action.

The Bier exception applies where an act in one State has an extra-territorial effect directly causing liability in another. It does not confer jurisdiction merely because later consequences are felt in the claimant’s domicile. The appeal was allowed and the proceedings were dismissed.

The claimant was seriously injured in a road accident in France in 1978. French criminal proceedings found the first defendant wholly responsible, and civil proceedings in France resulted in a final damages award in 1983. That award preserved a right to seek further damages if the claimant’s condition later deteriorated.

The claimant subsequently alleged deterioration while resident in England. Although fresh proceedings were begun in France, they were not pursued. In 2000 he issued proceedings in the English High Court against the driver and his insurer, relying on Article 5(3) of the Convention, as incorporated into English law by the Civil Jurisdiction and Judgments Act 1982.

The Senior Master refused to strike out the claim for want of jurisdiction. The defendants appealed. The central issue was whether the later deterioration in England constituted the place where the harmful event occurred.

Mr Justice Wall gave the judgment of the court. The appeal was allowed, the Senior Master’s order was set aside, and the proceedings were dismissed.

1. Article 5(3) contains an autonomous Convention concept. The expression place where the harmful event occurred cannot be determined by treating national law as decisive. The fact that French law characterised aggravation as a fresh cause of action was, at most, procedural.
2. The harmful event was the original negligence causing the accident and injury in France. The subsequent deterioration was a worsening of the claimant’s condition deriving directly from the original tort. It did not constitute a new harmful event in England, and the claimant had no Article 5(3) jurisdiction there.
3. The court distinguished the approach in Bier v Mines de Potasse d’Alsace [1976] ECR 1375. The Bier exception applies where a wrongful act in one State has an extra-territorial effect directly giving rise to liability for the same act in another State. It applies to circumstances such as cross-border pollution, and the court treated Shevill v Presse Alliance [1995] ECR 1-415 as another example. A traffic accident occurring only in one jurisdiction does not fall within that exception.
4. The reasoning in Dumez France and Tracoba v Hessische Landesbank (Helaba) and Others [1990] ECR 1-49 and Marinari v Lloyds Bank plc [1995] ECR 1-2719 supported a restrictive construction. Article 5(3) requires a particularly close connecting factor and does not extend to places where adverse consequences are later felt after the initial damage arose elsewhere. The interpretation also avoided multiplying jurisdictions, creating risks of irreconcilable decisions, or permitting forum shopping through a claimant’s choice of domicile.
5. The Jenard Report did not alter the European Court’s jurisprudence. Its reference to road accidents supplied no basis for the wider construction. A reference to the European Court of Justice was unnecessary because the existing jurisprudence was clear and the court’s conclusion was consistent with it. The issues concerning lis pendens under Articles 21 and 22 therefore did not arise.

Appeal allowed with costs. A section 11 order was made. The application for leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): [2002] EWCA Civ 75. Appeal allowed; the High Court order was set aside and the proceedings were dismissed.
• High Court, Queen’s Bench Division, Senior Master Turner, 9 March 2001: refused to strike out the claim for want of jurisdiction and held that the English courts had jurisdiction under Article 5(3).