Internationale Nederlanden Aviation Lease BV v Civil Aviation Authority [QBD (Comm)]

JurisdictionEngland & Wales
CourtQueen's Bench Division (Commercial Court)
JudgeMorison J.
Judgment Date13 Jun 1996

Queen's Bench Division (Commercial Court)

Morison J.

Internationale Nederlanden Aviation Lease BV & Ors
and
The Civil Aviation Authority & Anor

Andrew Lydiard (instructed by Clifford Chance) for the plaintiff.

Michael Beloff QC and David Wolfe (instructed by Richards Butler) for the second defendant.

The following cases were referred to in the judgment:

Castanho v Brown & Root (UK) LtdELR [1981] AC 557.

Gamlestaden plc v Casa de Suecia SA & Hans ThulinUNK [1994] 1 Ll Rep 433.

Gubisch Maschinenfabrik KG v Giulio PalumboECAS (Case 144/86) [1987] ECR 4861; [1989] 1 CEC 504.

Irish Aerospace (Belgium) NV v European Organisation for the Safety of Air Navigation & Civil Aviation AuthorityUNK [1992] 1 Ll Rep 383.

Overseas Union Insurance Ltd v New Hampshire Insurance Co [1991] ECR I-3317 (Summary publication; [1991] 2 CEC 73; [1992] 1 QB 434).

Société D'Informatique Service Réalisation Organisation v Ampersand Software BVELR [1996] QB 127.

Tatry (Owners of the Cargo Lately Laden on Board the Ship) v Maciej Rataj (Owners of the Ship)ECAS (Case C-406/92) [1995] CLC 275.

Practice — Discontinuance of action — Jurisdiction under European Convention — Detention of aircraft in Uk — Plaintiff commencing proceedings in UK — UK court deciding detention lawful — Subsequent proceedings in Belgium involving same cause of action and parties — Plaintiff seeking to discontinue UK proceedings — Whether a court which was first seised of a matter remained first seised even if proceedings had been discontinued — Whether the plaintiffs to be allowed to discontinue proceedings — Civil Jurisdiction & Judgments Act 1982, Sch. 1 (Brussels Convention), art. 21, 22.

This was an application by summons to discontinue proceedings which arose out of the detention of an aircraft on 22 October 1993 at Bournemouth airport.

The plaintiffs were respectively the mortgagee, owner and lessee of an aircraft detained by the first defendants, the Civil Aviation Authority (CAA) on behalf of the second defendants, Eurocontrol, pursuant to the Civil Aviation (Route Charges for Navigation Services) Regulations 1989 and 1993. The aircraft had been detained because there had been default in payment of route charges arising from the provision of air traffic control services both in respect of the aircraft detained and other aircraft within the fleet operated by Sultan Air, a Turkish airline. By proceedings which were commenced on 9 November 1993 the plaintiffs sought a declaration that the detention of the aircraft was unlawful. The plaintiffs contended that detention had been unlawful as it had been detained in respect of the fleet debt owed by Sultan and they were only liable for the sum due in respect of the aircraft debt, not the fleet debt. The defendants disputed the plaintiffs' contention. They asserted that the aircraft had been using the Sultan call sign and that the plaintiffs were estopped thereby from denying that Sultan were the operator. On 11 February 1994 CAA commenced a separate action in which they sought leave to sell the aircraft pursuant to para. 13(a) of the Regulations. On 10 October 1994 judgment was given on two preliminary issues. The court concluded that Sultan did not have the management of the aircraft at the relevant time and, therefore, was not the operator. The judge further ruled that the plaintiffs were not estopped from denying that Sultan was the operator. He ordered that the CAA had leave to sell the aircraft unless within 14 days the aircraft debt was paid. The parties were unable to agree on the amount of the charges to be paid. On 14 November 1994 the matter came back before the court. The judge decided that the plaintiffs had not paid the sum that they were liable to pay. He found that the CAA had lawfully exercised their power to detain and sell the aircraft and that neither the CAA nor Eurocontrol had committed the tort of trespass to goods or wrongful interference with property or unlawful detention.

On 1 August 1995 the plaintiffs commenced proceedings against Eurocontrol in Belgium claiming damages for the tort of wrongful, interference with goods. They contended that Eurocontrol had acted in breach of the Multilateral Agreement relating to Route Charges. The plaintiffs applied to discontinue the action in the English court with liberty to continue with the action against Eurocontrol in Brussels. The plaintiffs contended that although it would be possible to let the action go to trial since in the light of the judgment on the preliminary issue they would be entitled to a declaration that Sultan had not been the operator of the aircraft at the relevant time, declaratory relief would serve no useful purpose. They argued that discontinuance might improve the plaintiffs' claim in the Belgian proceedings when that court considered whether by reason of art. 21 of the Brussels Convention, they had jursidiction to hear those proceedings. The plaintiffs alternatively argued that art. 21 of the Convention did not apply because the present action and the Belgian action did not involve the same cause of action but that if they were wrong in that contention by discontinuing the present action the Belgian court could take jurisidiction as the only court seised of the matter.

Held, dismissing the application:

1. Both actions involved the same cause of action. It was not the court's function to attempt to guess nor to decide how the Belgian court would decide issues relating to art. 21. However, when deciding whether to grant or refuse the application to discontinue, the court could not entirely disregard the position in the Brussels action and the application of the Convention to the two sets of proceedings. The court, in exercising its discretion, had to have regard to the purpose and policy of the Convention when balancing the interests of the parties.

2. A court might still be seised of a case although its jurisdiction had not been established. It was only where there were no longer proceedings in the first court that that court would no longer be seised of the matter. Since art. 21 and 22 of the Convention were concerned with concurrent proceedings they had no application once a party had properly discontinued the first set of proceedings.

3. The court needed to take account of all the circumstances when considering whether it would be appropriate to allow discontinuance. Relevant factors were whether the present litigation had been taken so far that it would be unjust to allow it to stop, without the imposition of a general restriction on the institution of any other proceedings in relation to the same cause of action and whether things had been done in the action so far which could not be undone. Here there had been a final adjudication by an English judge, who had determined that the arrest of the aircraft was lawful. That was a finding in Eurocontrol's favour which could not be undone or compensated for. The court also had to bear in mind that the making of a formal judgment was essentially an administrative step which would be taken in the light of the judge's findings, which could not now be challenged.

4. It would be contrary to the policy of the Convention for the court first seised to permit discontinuance simply to enable the plaintiff to start another action in a different contracting state. The court would only be prepared to grant leave to discontinue on the basis that the plaintiffs could not bring proceedings elsewhere relating to the detention of the aircraft, a course with which the present plaintiffs were unwilling to comply.

JUDGMENT

Morison J: The plaintiffs apply by summons to discontinue the present proceedings which arise out of the detention of a Lockheed Tristar aircraft, registration HR-AMC (“the aircraft”) on 22 October 1993 at Bournemouth Airport.

Background

The aircraft was detained by the first defendants (“the CAA”) on behalf of Eurocontrol pursuant to the Civil Aviation (Route Charges for Navigation Services) Regulations 1989 and 1993 (“the regulations”) which were made pursuant to the powers conferred on the Secretary of State for Transport by the Civil Aviation Act 1982. The aircraft was detained because there had been default, both in respect of the aircraft and of other aircraft within the fleet operated by Sultan Air, a Turkish airline, in the payment of route charges arising from the provision of air traffic control services. The person who is primarily responsible for paying those charges is “the operator of the aircraft at the time when the flight was performed”.

The judgment of Hirst J in Irish Aerospace (Belgium) NV v European Organisation for the Safety of Air Navigation & Civil Aviation AuthorityUNK[1992] 1 Ll Rep 383 at p. 385 defines the status of Eurocontrol. He said:

“Eurocontrol are an international organisation established under the 1960 Brussels Convention relating to Co-operation for the Safety of Air Navigation (the Convention) as amended by the Brussels Protocol 1981 (the Protocol). They provide air navigation facilities and services and co-ordinate the provision of such services by national providers such as the CAA. They are empowered to establish and collect route charges levied on users of air navigation facilities and services in accordance with the Multilateral Agreement Relating To Route Charges made on February 12,1981 between various Contracting States including the UK…and Eurocontrol. Such charges are established on the basis of a single composite charge for one flight through the Flight Information Regions of Contracting States (Annexe 1 to the multilateral agreement). Eurocontrol's status in English law has been regulated since 1962 by statutory provisions now contained in s. 24 of the Civil Aviation Act, 1982 (the Act) and Sch. 4 thereof, which provide (inter alia) that Eurocontrol shall have the legal capacity of a body corporate, and that a court in any part of the UK shall have jurisdiction to hear and determine a claim against...

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    • United Kingdom
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1 books & journal articles
  • Choice of Law in Tort—Blending in with the Landscape of the Conflict of Laws?
    • United Kingdom
    • The Modern Law Review Nbr. 61-1, January 1998
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    ...Articles 21 and 22 will not apply: seeInternationale Nederlanden Aviation Lease BV and Others vCivil Aviation Authority and Another[1997] 1 Lloyd’s Rep 80.99 See eg L. Collins, Essays in International Litigation and the Conflict of Laws (Oxford: ClarendonPress, 1994); L. Collins, ‘Negative ......

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