Hewden Tower Cranes Ltd v Wolffkran GmbH

For the purposes of Article 5(3) of Regulation 44/2001, “matters relating to tort, delict or quasi-delict” is an autonomous European-law concept wider than English tort. The court must examine the substance of the claim and the factual basis of the alleged liability. A contribution claim under the Civil Liability (Contribution) Act 1978 may therefore fall within Article 5(3) where the underlying liability is tortious and the harmful event occurred in the forum. A party invoking Article 23 to oust otherwise established jurisdiction bears the burden of proving a jurisdiction agreement and must show, at the interlocutory stage, that it has much the better of the argument. A jurisdiction clause in an unrelated sale contract did not govern the claim, and an unproved clause in a hire contract could not be relied upon by a non-party.

Hewden Tower Cranes Ltd brought proceedings in England against Wolffkran GmbH concerning a crane collapse at Canary Wharf. It claimed damages in negligence and a contribution under the Civil Liability (Contribution) Act 1978. Wolffkran, a German company, challenged jurisdiction under Regulation 44/2001, relying on Article 2, Article 5(3), and jurisdiction clauses said to arise from a sale contract and a hire contract.

The issues were whether the contribution claim fell within Article 5(3), whether the sale contract required litigation in Heilbronn, and whether the hire contract did so.

1. Article 5(3). The expression “matters relating to tort, delict or quasi-delict” is an autonomous concept of European law and is wider than English tort. Its application depends on the substance of the claim and the factual basis of the alleged liability. The contribution claim was founded on the defendant’s alleged negligent design and manufacture of the Climbing Frame, which caused an accident and damage in England. It therefore fell within Article 5(3). Kalfelis v Bankhaus Schröder, Munchmeyer, Hengst & Co [1988] ECR 5565, Molnlycke AB v Procter & Gamble Ltd [1992] 1 WLR 1112, Kleinwort Benson Ltd v Glasgow City Council [1999] 1 AC 153, Casio Computer Co Ltd v Sayo [2001] EWCA Civ 661 and Verein fur Konsumenteninformation v Karl Heinz Henkel [2002] ECR 1-08111 supported that conclusion. Santa Fe (UK) Ltd v Gates Europe NV and Davenport v Corinthian Motor Policies at Lloyds [1991] S.L.T. 774 were distinguishable.
2. Sale contract. The jurisdiction clause applied to disputes arising directly or indirectly from the sale contract. The present claims were unrelated to that contract. The alleged negligence pre-dated it, the defective Climbing Frame was not sold under it, and no breach of the sale contract was pleaded. The clause therefore did not require proceedings in Germany.
3. Hire contract and burden of proof. A party relying on Article 23 to displace otherwise established jurisdiction must prove an agreement satisfying Article 23. At the interlocutory stage, it must show that it has much the better of the argument. The evidence did not establish that the relevant delivery conditions containing a German jurisdiction clause were incorporated into the hire contract. Nor did it establish that Wolffkran replaced WBV as contracting party, since the claimant had not been informed of or consented to the substitution. Wolffkran could not rely on the hire contract.
4. Disposition. The English courts had jurisdiction under Article 5(3), and the defendant’s Article 23 challenge failed. The defendant’s application to set aside the claim form was dismissed.

First-instance decision. No prior appellate decision is stated in the judgment.