Heraeus Medical GmbH & Anor v Biomet UK Healthcare Ltd & Ors

For service under CPR 6.33, the relevant question is whether the objective conditions for service are satisfied. The state of mind of the solicitor completing the required notice does not determine the validity of service.

Where proceedings involving the same parties and cause of action are pending in another Member State, the court must apply the quasi-mechanical rules in Article 29 of the Recast Brussels Regulation. A claimant seeking permission to serve out must make full and fair disclosure of material facts, but need not anticipate every argument. Service may properly be permitted on a conditional basis where the appropriateness of England and Wales depends on the resolution of a territorial issue in foreign proceedings.

The claimants brought English proceedings alleging misuse of confidential information and trade secrets concerning orthopaedic bone cement. Earlier German proceedings involving some of the parties had resulted in relief against the foreign defendants, but the territorial scope of that relief remained disputed.

The foreign defendants challenged service. Biomet BV argued that the certificate under CPR 6.33 was invalid because the solicitor lacked a reasonable basis for his belief concerning foreign proceedings. Biomet Inc challenged service out on grounds of non-disclosure and forum. The central questions were whether service was defective, whether the application for permission to serve out had sufficiently disclosed the German proceedings, and whether England and Wales was an appropriate forum.

1. The applications to set aside service were refused. The consequential applications by the claimants therefore did not arise.

2. Under CPR 6.33 and CPR 6.34, the validity of service depends on the facts required by the rule, including whether proceedings involving the same parties and cause of action are pending elsewhere. The solicitor’s state of mind is not determinative. The notice provides a safeguard and a procedural filter, but the statutory and procedural conditions are either fulfilled or they are not.

3. Article 29 of the Recast Brussels Regulation (No 1215/2012) requires the court first seised to be identified by reference to objective matters. If qualifying foreign proceedings exist, the later court must stay and, once the first court’s jurisdiction is established, decline jurisdiction. The approach in National Navigation Co v Endesa Generacion SA (The “Wadi Sudr”) [2009] 1 Lloyds Rep 666 concerned a different issue and did not alter that conclusion.

4. An applicant for permission to serve out must make full and fair disclosure of material facts. The duty does not require anticipation of every possible argument. The witness statement and annex adequately disclosed the German proceedings, the dispute about their territorial scope, and the conditional basis on which the English proceedings were pursued. Any contentious or ambitious statements did not justify setting aside service.

5. England and Wales could be an appropriate forum if the German proceedings did not cover acts in the United Kingdom. Conditionality was permissible while that issue was being resolved in Germany. The court was not required to determine the territorial issue on these applications.

The applications to set aside service on Biomet BV and Biomet Inc were refused. The other applications were not determined.

First-instance decision. The judgment records related German proceedings but does not state any appeal from this decision.