Roberts v The Soldiers, Sailors, Airmen and Families Association -Forces Help & Ors

Third-party proceedings may be brought under article 8(2) of the Brussels Recast Regulation (EU 1215/2015) where the original and third-party proceedings are closely connected. The connection must make it rational, and necessary for the harmonious and efficacious administration of justice, for both proceedings to be heard together. A risk of irreconcilable judgments may establish that connection, but it is not confined to cases involving identical parties and issues. A jurisdiction agreement binds a person only where the contractual requirements are satisfied and the person is a party, or the contracting party had authority to act on that person’s behalf. Ostensible authority requires words or conduct amounting to a representation before the contract was made.

The claimant brought a negligence claim arising from his birth against SSAFA and the MOD. SSAFA and the MOD issued Part 20 proceedings against Viersen, alleging negligent treatment by the German hospital and its obstetricians. Viersen challenged the jurisdiction of the English court on two grounds: that article 8(2) of the Brussels Recast Regulation (EU 1215/2015) did not confer jurisdiction, and that a jurisdiction clause in a 1996 contract between Viersen and GSTT required disputes to be litigated in Germany.

The issues were whether Viersen could raise the article 8(2) point late, whether the third-party proceedings were sufficiently connected with the original claim, and whether SSAFA or the MOD were bound by GSTT’s contractual jurisdiction clause.

1. Late jurisdiction ground. Viersen was permitted to rely on article 8(2), although the point had not been included in the application notice. The amendment raised a pure issue of law, the other parties had considered the issue, all parties were ready to argue it, and the hearing would not be lengthened.
2. Article 8(2) jurisdiction. The Civil Procedure Rules 1998, Part 20 permitted the proceedings, but CPR compliance was not by itself sufficient. Article 8(2) required a close connection between the original and third-party proceedings. Applying the approach identified in Sovag v If Case C-521/14, and the domestic authorities, the connection had to be such that it was rational, and that the harmonious and efficacious administration of justice required the proceedings to be heard together.
3. That test was satisfied. The proceedings concerned the same treatment of Mrs Roberts and the circumstances leading to the claimant’s cerebral palsy. Separate proceedings could result in inconsistent findings about the respective responsibility of the midwife and obstetricians, and about causation. The English court therefore had jurisdiction under article 8(2).
4. Jurisdiction clause. The contract was between GSTT and Viersen. There was no evidence that SSAFA or the MOD had, before the contract was made, represented by words or conduct that GSTT had authority to bind them to clause 19.2. The contractual recitals and clauses 2.1 and 3.4 instead showed a chain of independent contractual relationships and were inconsistent with ostensible authority.
5. Although a jurisdiction clause may in principle be severable from the main contract, nothing established that clause 19.2 was severed from the agreement or that SSAFA and the MOD were parties to it. They were therefore not bound by the clause. The separate issue whether an agreement based on ostensible authority would satisfy article 25(1)(a) as being in writing or evidenced in writing was left undecided.

The jurisdiction challenge was dismissed in substance: Viersen could rely on article 8(2), jurisdiction existed under that provision, and neither SSAFA nor the MOD was bound by clause 19.2.