McGraw-Hill International (UK) Ltd v Deutsche Apotheker -Und Arztebank EG & Ors

Special jurisdiction under Regulation EC 44/2001 is exceptional and must be established by applying the autonomous meaning of the relevant jurisdictional provision. A particularly close connection with the forum is insufficient unless the pleaded claim also falls within the wording of Article 5 or 6.

A conditional declaration that a co-defendant is liable for the same damage may constitute a genuine dispute, even though the contingency has not yet arisen. Article 6(2) does not apply where the claimant has joined an ordinary defendant seeking declaratory relief, rather than bringing third-party proceedings for contribution, indemnity or guarantee.

For Article 5(3), the harmful event in a negligent misrepresentation claim occurred where the representations were delivered and received. For Article 5(5), the dispute arose out of a London branch’s operations because that branch created, arranged, rated and marketed the relevant financial products.

The claimant sought declarations that it and the fifth defendant, ABN Amro, were not liable to the fourth defendant’s investors in relation to credit ratings assigned to CPDOs. Alternatively, it sought a declaration that, if the claimant were liable, ABN Amro was liable for the same damage.

ABN Amro was domiciled in the Netherlands and applied under Part 11 of the CPR for a declaration that the English court lacked jurisdiction and for an order setting aside service out of the jurisdiction. Related proceedings had been brought in the Netherlands. The claimant relied on Articles 5(3), 5(5) and 6(2) of Regulation EC 44/2001.

The issues were whether there was a lis between the claimant and ABN Amro, whether Article 6(2) applied, and whether the claims fell within Articles 5(3) or 5(5).

1. Disposition. ABN Amro’s applications were dismissed. The court had no jurisdiction in respect of the principal declaration because there was no dispute between the claimant and ABN Amro on that issue. The alternative declaration could proceed because ABN Amro would inevitably dispute the allegation that it was liable for the same damage as the claimant if the contingency arose.
2. Article 6(2). The alternative declaration was not third-party proceedings. ABN Amro was a named defendant to the claimant’s declaratory claim, and the claimant sought no contribution, indemnity or guarantee from it. The court had to examine the actual capacity in which ABN Amro was sued in the English proceedings. A possible future Part 20 claim could not establish jurisdiction at the present stage. Article 6(2) could not be used to evade the domiciliary principle or to secure the appearance in England of a defendant domiciled in the Netherlands.
3. Article 5(3). The terms of the Regulation had to be given autonomous meaning. The harmful event in a negligent misrepresentation claim was located where the relevant meetings and contacts occurred and the written material was delivered and received. The CPDO materials were marketed and received in Germany, Austria and Switzerland. Their having been composed in England did not make England the place of the harmful event.
4. Article 5(5). The dispute arose out of the operations of ABN Amro’s London branch. The branch arranged and structured the CPDOs, obtained the ratings, supplied information to the rating agency, participated in the rating process and prepared the marketing material. Those activities supplied a strong nexus between the dispute and the branch, notwithstanding that the defendant was domiciled in the Netherlands and the marketing occurred elsewhere.
5. The court observed that England would in any event have been the appropriate forum because the relevant interrelationship between the parties’ personnel and the rating work was centred in London. Costs were to follow the event, subject to further submissions.