Morin v Bonhams & Brooks Ltd & Anor

For a tort involving events in several countries, the general rule under Private International Law (Miscellaneous Provisions) Act 1995, section 11(2)(c), is the law of the country where the most significant elements of the events occurred. A contractual choice of law is not itself an event constituting the tort, although it may be relevant when considering displacement under section 12.

An English group company does not assume responsibility for an auction catalogue merely by distributing it or giving an estimated sale price. Misrepresentation Act remedies are ordinarily available only against a contracting party. Separate companies in a corporate group are not treated as one entity, and distributing a catalogue does not by itself establish a common design for joint-tortfeasor liability.

The claimant bought a Ferrari at a Monaco auction organised by the second defendant, a Monegasque subsidiary of the first defendant. The catalogue, prepared by a group company, stated that the car had covered about 16,000 kilometres. After the sale, the claimant alleged that the mileage was substantially higher.

He sought rescission and damages under the Misrepresentation Act 1967, together with common-law damages, against both defendants. He applied for permission to serve the Monegasque defendant out of the jurisdiction. The English defendant sought a stay. The issues included applicable law, arguability of the claims, the jurisdictional gateways and forum conveniens.

1. The sale conditions were incorporated. The claimant had signed a bidder registration form immediately below an express confirmation that he had read and accepted the catalogue conditions. The conditions therefore included an effective choice of Monegasque law under Article 3.1 of the Rome Convention.

2. The claims against the Monegasque defendant were governed by Monegasque law under section 11(2)(c) of the Private International Law (Miscellaneous Provisions) Act 1995. The representation began in London but continued until the hammer fell in Monaco. The principal reliance and almost all substantial loss occurred in Monaco. The judge declined to decide whether section 12 would otherwise displace the general rule.

3. The English defendant was a separate legal entity and was not party to the sale contract. The Misrepresentation Act 1967 claims for rescission and damages in lieu therefore had no reasonable prospect of success against it. Following Resolute Maritime Inc v Nippon Kaiji Kyokai, the statutory remedies were confined to the contracting parties.

4. Distribution of the catalogue and communication of an estimated sale price did not amount to an assumption of responsibility by the English defendant. The claimant therefore had no reasonably arguable common-law duty-of-care claim against it. The court also rejected the proposed joint-tortfeasor case: group membership and a ministerial distribution role did not establish a common design or meeting of minds.

5. The claim against the Monegasque defendant was arguable under Monegasque law, but England was not clearly or distinctly the appropriate forum. The auction, sale, delivery, payment, contractual law and tort law were centred on Monaco. Permission to serve out was refused. The claim against the English defendant was identified as subsidiary and was to be struck out or, alternatively, stayed, subject to further submissions.