ET Plus SA v Jean-Paul Welter & The Channel Tunnel Group Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 07 November 2005 |
| Neutral Citation | [2005] EWHC 2115 (Comm) |
| Docket Number | Case No: 2005 306 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 07 November 2005 |
[2005] EWHC 2115 (Comm)
The Hon Mr Justice Gross
Case No: 2005 306
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Robert Englehart QC and Andrew Green (instructed by Denton Wilde Sapte) for the Claimants
Joe Smouha QC and Ian Gatt QC (instructed by Herbert Smith LLP) for the Defendants
Hearing dates: 26 th & 27 th July 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Gross
INTRODUCTION
Applications: There are before the Court applications by the Defendants seeking a stay of the Claimants' claims for the arbitration already proceeding between the First Claimant and the Eighth and Ninth Defendants in Paris ("the Paris arbitration"), challenging the Court's jurisdiction in respect of any claims not so stayed, alternatively striking out or staying in the exercise of the Court's case management powers any claims not stayed for arbitration.
For their part, the Claimants contend that the Paris arbitration has a narrower scope than that suggested by the Defendants. They submit that any claims not stayed for arbitration are properly brought here and are not to be struck out, though they do not or not seriously dispute that any remaining claims brought against individual Defendants should be stayed in the exercise of the Court's case management powers pending the outcome of the Paris arbitration. The Claimants further apply to amend the Claim Form, so as, inter alia, to add the Sixth and Seventh Claimants to the proceedings.
It will already be apparent that a convenient approach to these bitterly fought applications is as follows:
i) What is the true scope of the Paris arbitration and, accordingly, which claims should be stayed for arbitration? ("Issue (I): The scope of the Paris arbitration");
ii) In respect of any claims not stayed for the Paris arbitration, can they proceed here or must the Court decline jurisdiction or ought such claims to be struck out? ("Issue (II): The fate of the remaining claims");
iii) In respect of any surviving claims, should they be stayed in the exercise of the Court's case management powers pending the outcome of the Paris arbitration? ("Issue (III): Case Management Stay").
Dramatis Personae: In neutral terms, the Claimants may be described as a group of companies who, pursuant to a contract ("the contract") with the Eighth and Ninth Defendants (together, "Eurotunnel") market and sell tickets to freight clients, in both Eastern and Western European countries, for use of the Eurotunnel truck shuttle service. The First to Fifth Claimants are incorporated respectively in Luxembourg, England and Wales, the Netherlands, France and Spain. The First to Fifth Claimants are subsidiaries of the (intended) Sixth and Seventh Claimants; in effect, the First Claimant is a joint venture vehicle established by the Sixth and Seventh Claimants to carry out the contract. The Sixth Claimant is incorporated in Italy and the Seventh Claimant in Luxembourg.
The First to Fifth Defendants (collectively, "the ET Plus Defendants") were formerly directors of or employed by one or other of the Claimant companies and, as is common ground, have all now been recruited by Eurotunnel. So, on the undisputed evidence before me:
i) The First Defendant ("Mr. Welter"), domiciled in Italy, was employed by the Sixth Claimant, an Italian company, as the ET Plus Group Finance Director and was also a director of the First, Second and Third Claimants. His service contract was in writing and was governed by Italian Law.
ii) The Second Defendant ("Mr. Buscher"), domiciled in the Netherlands, was employed by the Third Claimant, a Dutch company, as a commercial director. He had a written contract of employment, governed by Dutch Law.
iii) The Third Defendant ("Mr. Delaplanque"), domiciled in France, was President and a director of the Fourth Claimant, a French company. He was not an employee of the Fourth Claimant.
iv) The Fourth Defendant ("Ms. Barrie"), domiciled in England, was employed by the Second Claimant, an English company, from September 2004 as its Commercial Director. She had a written contract of employment governed by English Law.
v) The Fifth Defendant ("Mme Villaescusa"), domiciled in Spain, was employed by the Fifth Claimant, a Spanish company, as its office manager. She had a written contract of employment, governed by Spanish Law.
As will be apparent, the Sixth and Seventh Defendants are likewise individual Defendants—but throughout, if it may be expressed that way, in the Eurotunnel "camp". Again, on the undisputed evidence:
i) The Sixth Defendant ("Mr. Morrison"), domiciled in England, is employed by the Eighth Defendant, a company incorporated in England and Wales, as Senior Legal Adviser.
ii) The Seventh Defendant ("Mr. Broek"), domiciled in the Netherlands, was employed by a French employment services company set up by Eurotunnel, as Commercial Freight Director (until July 2005).
Insofar as it may be relevant, both Mr. Morrison and Mr. Broek worked or worked mainly in France.
As already foreshadowed, the Eighth Defendant ("CTGL") is a company incorporated in England and Wales. The Ninth Defendant ("France Manche") is incorporated in France.
A chart, diagrammatically illustrating the position of the Claimants and Defendants, was helpfully placed before me by Mr. Smouha QC (representing the Defendants) with the agreement of Mr. Englehart QC (representing the Claimants). A copy is annexed to this judgment.
The Contract: There was no or no serious dispute at the hearing as to the background to the contract. In summary, in 1994, Eurotunnel began commercial operations, managing the infrastructure of the Channel Tunnel. Eurotunnel itself operated various freight, car and coach services and also obtained revenue from train operators using the Channel Tunnel. As for freight business, Eurotunnel sold tickets directly to customers and, after a time, also through the Sixth and Seventh Claimants. In early 2002, at the instigation of Eurotunnel, the Sixth and Seventh Claimants created a single brand name, "Eurotunnel Plus"; the intention was that by joining forces and using a single brand name, they would together generate increased Eurotunnel truck shuttle business. Eurotunnel would itself continue to market and sell tickets to around 150 freight customers, referred to as "key accounts"; that apart, Eurotunnel would leave the marketing and selling of such tickets to the Sixth and Seventh Claimants who were to enjoy exclusivity in their respective territories. In late 2002, certain customer details were transferred from Eurotunnel to the Sixth and Seventh Claimants, pursuant to these developments. Various contractual arrangements then followed, resulting (inter alia) in the incorporation of the Second to Fifth Claimants as national subsidiaries of the Sixth and Seventh Claimants. Following discussions in 2003, the First Claimant came to be incorporated as a joint venture vehicle of the Sixth and Seventh Claimants, with a view to the replacement of the previous contracts by a new contract, to which the parties would be the First Claimant ("ET Plus") and Eurotunnel. That new contract, i.e., the contract, was entered into on the 4 th March, 2004. In one sense, the description (employed at the hearing) of the Claimants' business commencing as a "carve out" from Eurotunnel's existing business, can be seen to be accurate; whether this description assists in the resolution of the disputed issues between the parties, is another matter.
The original language of the contract is French. In translation, the contract provides, inter alia, as follows:
"
In application of the Treaty of 12 th of February 1986 and the concession contract of 14 th of March 1986 EUROTUNNEL operates the Cross-Channel fixed link.
This operation consists, among other things, of transporting heavy goods vehicles on EUROTUNNEL shuttles.
This business, known as freight business, has as clients road haulage companies from the United Kingdom and throughout continental Europe.
With a view to increasing EUROTUNNEL ticket sales with road haulage companies throughout Europe, but also with a view to simplifying the management of this sales business which involves a large number of client accounts spread throughout Europe, EUROTUNNEL wished to find a partner, a specialist in road haulage who has the capacity to increase the volume of EUROTUNNEL sales of tickets with road haulage companies and to manage some EUROTUNNEL clients.
Two contracts have been signed for this purpose with TRANSFERRY and CTS.
As a result of existing synergies, EUROTUNNEL proposed that TRANSFERRY and CTS should set up a joint-venture, in which each of the partners should hold 50 per cent of the shares in order to maintain a balanced split between them. This joint venture, known as ET PLUS SA, should allow the administrative management and financial relationships to be centralised and to bring together the management of risks.
The contracts previously signed between EUROTUNNEL and TRANSFERRY and EUROTUNNEL and CTS should therefore be brought together under a single contract…..
ARTICLE 1: DEFINITIONS
The Contract and only the Contract shall contain all the documents to which reference may be made to determine the rights and obligations of the Parties.
ARTICLE 2: PURPOSE
This Contract has the...
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