Fishers Services Limited V. All Thai'd Up Limited Trading As Richmond House Hotel+mr Roy Williamson
| Jurisdiction | Scotland |
| Judge | Sheriff Principal R.A. Dunlop, Q.C. |
| Court | Sheriff Court |
| Date | 28 March 2013 |
| Docket Number | A14/12 |
| Published date | 08 April 2013 |
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE
A14/12
JUDGMENT
of
SHERIFF PRINCIPAL R A DUNLOP QC
in the cause
FISHERS SERVICES LIMITED
Pursuers and Appellants
against
ALL THAI'D UP LIMITED t/a RICHMOND HOUSE HOTEL
First Defenders and Respondents
and
MR ROY WILLIAMSON
Second Defender and Respondent
__________________________________________
Alt: No appearance
CUPAR, 28 March 2013. The Sheriff Principal, having resumed consideration of the cause, allows the appeal and recalls the sheriff's interlocutor of 20 June 2012 complained of; finds that Cupar Sheriff Court has jurisdiction; remits to the sheriff to determine the motion (no. 7/1 of process) and thereafter to proceed as accords.
NOTE:
[1] This is an appeal against the sheriff's interlocutor finding that Cupar sheriff court has no jurisdiction and refusing the pursuers' motion for decree. The pursuers' registered office is in Cupar. The first defenders have their registered office in Edinburgh, which is also where the second defender resides. The issue of jurisdiction was raised by the sheriff on his own motion. Although the second defender lodged a notice of intention to defend he has played no part in the proceedings and there was no contradictor at the appeal hearing.
[2] The action is directed to recovery of the price of goods and services supplied to the first defenders under contract, the payment of which was guaranteed by the second defender. The pursuers contend that the sheriff at Cupar has jurisdiction in terms of paragraph 2(b) of Schedule 8 of the Civil Jurisdiction and Judgments Act 1982 (hereinafter referred to as "the 1982 Act"), Cupar being the place at which the sums sued for ought to have been paid.
[3] Schedule 8 of the 1982 Act provides rules as to jurisdiction in Scotland. The primary basis of jurisdiction in terms of Schedule 8 is the domicile of the defender but there are a number of other grounds of special jurisdiction set out in paragraph 2, one of which is that a person may also be sued "in matters relating to a contract, in the courts of the place of performance of the obligation in question".
[4] Section 20(5) of the 1982 Act provides as follows:-
"In determining any question as to the meaning or effect of any provision contained in Schedule 8 -
(a) regard shall be had to any relevant principles laid down by the European Court in connection with Title II of the 1968 Convention or Chapter II of the Regulation and to any relevant decision of that court as to the meaning or effect of any provision of that Title or Chapter: ..."
[5] The reference to the 1968 Convention is a reference to what is known shorthand as the Brussels Convention. The Regulation is the Council Regulation (EC) No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (commonly referred to as "the Brussels I Regulation").
[6] Article 5 of the Brussels Convention provides inter alia that "a person domiciled in a Contracting State may, in another Contracting State, be sued - (1) in matters relating to a contract, in the courts for the place of performance of the obligation in question; ...".
[7] Article 5 of the Brussels I Regulation provides inter alia as follows:
"A person domiciled in a Member State may, in another Member State, be sued:
1(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
- in the case of the sale of goods, the place in the Member State where, under the contract, the goods were delivered or should have been delivered,
- in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,
(c) if subparagraph (b) does not apply then subparagraph (a) applies."
[8] The sheriff took the view that Article 5(1)(b) of the Brussels I Regulation gave an autonomous meaning to the phrase "place of performance of the obligation in question" and that he ought to interpret paragraph 2(b) of Schedule 8 consistently with that meaning. In reaching that view he had regard to the decision of the European Court in Color Drack GmbH v Lexx International Vertriebs GmbH 2007 EUCJ C-386/05 (3rd May 2007). He refers specifically to paragraph 45 of that decision where the court considered the question of what happens where there are a number of places of delivery within a Member State. He refers to the statement of the court that:-
"In such a case, the court having jurisdiction to hear all the claims based on the contract for the sale of goods is that for the principal place of delivery, which must be determined on the basis of economic criteria. In the absence of determining factors for establishing the principal place of delivery, the applicant may sue the plaintiff (sic) in the court for the place of delivery of its choice."
[9] The learned sheriff understood this paragraph to mean that the European Court was deciding in that case not only where international jurisdiction lay but was also pointing to where jurisdiction lay internally within a Member State. He suggests that, were it otherwise, a situation could arise in which a litigant could found jurisdiction in Scotland in terms of the Brussels I Regulation but, in applying a different meaning to paragraph 2(b) of Schedule 8, there might be no sheriff court in which that jurisdiction could be made good.
[10] The solicitor for the appellants submitted that in adopting this approach the sheriff had misdirected himself. The preamble to the Brussels I Regulation made it clear that it was aimed at conflicts between the rules governing jurisdiction in Member States and Article 5 expressly confined its scope to those cases in which a person domiciled in one Member State might be sued in another Member State. Accordingly it had no application or relevance to a purely domestic litigation in which both parties were domiciled in Scotland. So far as concerned Article 5(1)(b) of the Regulation it was pointed out that the definition provided was expressly "for the purpose of this provision", that is to say for the purpose of those cases to which Article 5 applied. This was not such a case. It followed that, in applying the provisions of section 20(5) of the 1982 Act, Article 5(1)(b) and the decision in Color Drack GmbH were not "relevant" to the question of the meaning and effect of paragraph 2(b) of Schedule 8 to the 1982 Act. Section 20(5) ought not to be read as requiring the court to have regard to any principles laid down by, or any decision of, the European Court in interpreting the provisions of Schedule 8 unless those provisions were to some extent derived from the Brussels Convention or Brussels I Regulation (see Maher & Rodger Civil Jurisdiction in the Scottish Courts para. 2-21). It was pointed out that, notwithstanding the coming into force of the Brussels I Regulation, paragraph 2(b) retained the original formulation of the special rule for contract and this must be assumed to have been deliberate.
[11] In my opinion the submissions for the appellants are well founded. Assuming that the proceedings fall within the scope of the Brussels I Regulation so far as the subject matter of the claim is concerned (article 1), the primary rule is that persons domiciled in a Member State shall be sued in the courts of that Member State (article 2). Article 3 provides...
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