Masri v Consolidated Contractors Group SAL & Ors

Council Regulation EC44/2001, Article 6.1 is not confined to defendants joined in a single action. It may apply where defendants are sued in separate proceedings in the court of a Member State where one defendant is domiciled, provided that the claims are sufficiently connected for joint determination to avoid irreconcilable judgments.

Article 2 remains the general rule, and its exceptions require narrow construction. That does not justify adding a single-action requirement absent from Article 6.1. Legal certainty is satisfied where a normally well-informed defendant can reasonably foresee the basis on which the court's jurisdiction may be invoked.

The claimant sought payment under a 1992 agreement concerning a share of income from an oil concession. The agreement left a real issue as to which company in a corporate group, if any, had contracted with him.

He sued an English company in England and, in separate proceedings, sued the individual and companies said alternatively to be parties to the agreement. Two defendants domiciled in Greece challenged English jurisdiction under Article 2 of Council Regulation EC44/2001. The Commercial Court dismissed their applications to contest jurisdiction and set aside service, and consolidated the actions.

The central issue was whether Article 6.1 could found jurisdiction over the Greek defendants although the English-domiciled defendant had been sued in a separate action.

1. Appeals dismissed unanimously. Sir Anthony Clarke MR, with whom Rix and Richards LJJ agreed, held that the High Court had jurisdiction over the Greek-domiciled defendants under Article 6.1 of Council Regulation EC44/2001.

2. Article 2 states the general rule that a person is sued in the courts of the Member State of domicile. The special jurisdiction provisions are exceptions and must be construed narrowly. The claimant nevertheless established a good arguable case for the Article 6.1 exception.

3. The natural language of Article 6.1 does not impose a requirement that all relevant defendants must have been joined in one action. Its references to defendants and claims are capable of covering separate proceedings. The form in which related actions are initiated and later consolidated is a matter of national procedure and does not alter the provision's operation.

4. The purpose identified in [1988] ECR 5587 was decisive: Article 6.1 seeks to prevent irreconcilable judgments. The claims here concerned the same alleged agreement and differed principally in the identity of the alleged contracting party. Separate trials could therefore produce inconsistent conclusions as to who, if anyone, was liable. There was no suggestion that the English claim had been brought solely to remove the Greek defendants from their home jurisdiction.

5. The construction adopted did not offend legal certainty. A normally well-informed defendant could foresee that, if the English company denied being party to the agreement, related proceedings might be brought in England to avoid inconsistent judgments. It was unnecessary, and inappropriate without oral argument, to decide whether Article 5.1 also conferred jurisdiction. The appellants were ordered to pay the respondent's costs, subject to detailed assessment.

• Court of Appeal (Civil Division) Dismissed the appeals from Cresswell J and upheld jurisdiction under Article 6.1 of Council Regulation EC44/2001: [2005] EWCA Civ 1436.
• High Court (Commercial Court) On 17 May 2005, Cresswell J dismissed the defendants' applications challenging jurisdiction and seeking to set aside service, and consolidated the actions.