Senior Taxi Aereo Executivo LTDA & Ors v Agusta Westland S.p.A & Ors

For jurisdiction under Article 8(1) of the Recast Brussels Regulation, the claim against the English anchor defendant must satisfy a Merits Test. It must be sustainable, in the sense of having a real prospect of success or raising a serious issue to be tried. The test is distinct from the prohibition on artificial fulfilment of the jurisdictional conditions.

Summary judgment may be given where the claim has no realistic prospect of success and there is no compelling reason for a trial. A speculative possibility that further evidence may emerge is insufficient. The Merits Test is assessed at the early jurisdiction stage and may rely on evidence available at the jurisdiction challenge.

The claim arose from the fatal crash of an AW139 helicopter in Brazil. The claimants brought claims in negligence and under the Consumer Protection Act 1987 against several companies in the Leonardo group.

AW Limited applied for strike-out and summary judgment. Agusta Westland S.p.A. and Leonardo applied to set aside service and challenge jurisdiction under Article 8(1) of the Recast Brussels Regulation, relying on AW Limited as the English anchor defendant. The central issues were whether the claim against AW Limited was viable and whether Article 8(1) required a sustainable claim against the anchor defendant.

1. Applications allowed. The claims against AW Limited were summarily dismissed. The proceedings against Agusta Westland S.p.A. and Leonardo were set aside because Article 8(1) was unavailable without a viable claim against the anchor defendant.
2. Under CPR Part 24, summary judgment requires both the absence of a real prospect of success and no other compelling reason for a trial. The court must avoid a mini-trial, but it need not accept unsupported factual assertions at face value. A short point of law or construction should be decided where the necessary evidence is available.
3. Article 8(1) contains an implied Merits Test. The claim against the anchor defendant must be sustainable. This follows from the requirement for a close connection and a risk of irreconcilable judgments. The test is confined to the initial jurisdiction stage and is distinct from the Artificial Fulfilment Prohibition.
4. The CJEU decision in Reisch Montage v Kiesel [2007] I.L.Pr 10 concerned a procedural bar under national law and did not preclude a substantive merits assessment. The other authorities did not rule out the Merits Test. The court accepted the reasoning of the majority in Sabbagh v Khoury [2017] EWCA Civ. 1120 on the distinction between anchor and non-anchor defendants.
5. On the evidence, AW Limited had no real prospect of being shown to have designed, manufactured, supplied or marketed the helicopter, its tail-rotor blade or its tail-rotor shut-off valve. The material relied upon by the claimants was speculative and there was no realistic prospect that further disclosure would alter the position. There was consequently no compelling reason for a trial.
6. Alternatively, the judge indicated that the statutory claims were barred or defective. Commercial use engaged section 5(3) of the Consumer Protection Act 1987; section 5(2) excluded loss of the defective product itself; and limitation provisions barred the relevant claims. The indemnity claim was also a relational loss outside the statutory scheme.