Shannon v Global Tunneling Experts UK Ltd & Ors

Article 6(1) of the Brussels Regulation may apply to a multi-party personal-injury claim involving different causes of action and different national laws. The question is whether, having regard to all necessary factors, separate proceedings create a risk of irreconcilable judgments. In fact-sensitive claims, the inquiry should use a broad common-sense approach and focus on the factual issues likely to be common to the claims.

The employment jurisdiction provisions in Articles 18–20 apply to personal-injury claims where a relevant contract of employment exists. They do not, however, displace Article 6(1) in relation to defendants who are not shown to be the claimant’s employers. A claimant need not prove the negative proposition that the employment provisions do not apply.

The claimant sought damages for serious personal injuries suffered in Belgium while working on a railway construction project. The first defendant was domiciled in England and Wales. The fourth and fifth defendants, the Belgian Defendants, were domiciled in Belgium and were the main contractors responsible for the project.

The Belgian Defendants applied for a declaration that the English court lacked jurisdiction. They argued that Article 6(1) of the Brussels Regulation did not apply, that the claim fell within the special jurisdictional regime for individual contracts of employment in Articles 18–20, and that the proceedings were an abuse of process.

The central issues were whether there was a risk of irreconcilable judgments and whether the claimant had a relevant employment contract with the Belgian Defendants.

1. Good arguable case. The claimant had a good arguable case that he remained employed by the first defendant, which was domiciled in England and Wales. The available contracts, pay records, P45, Limosa certificate and witness evidence supported that conclusion. The threshold did not require the court to determine the merits of the personal-injury claim.
2. Article 6(1). The authorities did not establish a wholly consistent composite test. In a fact-sensitive personal-injury claim, the court must consider all necessary factors and adopt a broad common-sense approach. The relevant common issues included how the accident happened, the condition and maintenance of the machine and workplace, supervision, responsibility for instructions, and contributory negligence. Separate courts could reach irreconcilable conclusions on those issues. The fact that the defendants acted independently and were subject to different legal regimes was relevant but not conclusive. Article 6(1) therefore applied.
3. Articles 18–20. Section 5 of the Brussels Regulation establishes a self-contained regime for matters relating to individual contracts of employment, and that regime can encompass personal-injury claims where a relevant employment contract exists. But the Belgian Defendants were not shown, on the evidence, to be the claimant’s employers. The contract with the first defendant therefore did not bring the claims against the Belgian Defendants within Section 5. The claimant was not required to prove that the employment provisions did not apply.
4. The court declined to determine conclusively whether the statutory claim under the Belgian 1996 Act presupposed a contract. The claimant could not amend his case at trial to rely on an implied employment contract with the Belgian Defendants.
5. The abuse-of-process objection added nothing if Article 6(1) was properly engaged. The application was dismissed.