Lafarge Plasterboard Ltd v Fritz Peters & Company Kg
| Jurisdiction | England & Wales |
| Judgment Date | 31 March 2000 |
| Judgment citation (vLex) | [2000] EWHC J0331-15 |
| Date | 31 March 2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Number: HT 99/158 |
[2000] EWHC J0331-15
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Technology and Construction Court
His Honour Judge Peter Bowsher Q.C.
Case Number: HT 99/158
Timothy Otty for the applicant/defendant (Solicitors: Morgan Cole)
Nicholas Stewart Q.C. for the respondent/claimant (Solicitors: Kennedys)
Date of Judgment: May, 2000
The Judgment of His Honour Judge Peter Bowsher is as follows:-
THE APPLICATION
This action is brought by a Claim Form issued out of the Registry of the Technology and Construction Court on 22 September, 1999.
The Claimant is an English company which manufactures gypsum plasterboard.
The Defendant is a German company, domiciled in Germany which manufactures and supplies liner paper for gypsum plasterboard.
By this action the Claimant claims damages "for breach of a written or oral contract and/or breach of duty of care arising out of the supply of lining paper by the Defendant to the Claimant on various contracts during the period 1995 and 1996.
The Claim Form was served on the Defendant in Germany.
On 20 December, 1999, the Defendant's English solicitors filed an Acknowledgement of Service giving notice of intention to contest the jurisdiction of the Court.
The Defendants now apply for an order declaring that the Court has no jurisdiction and setting aside the Claim Form and its service.
THE ISSUES
The Claim Form was served out of this Jurisdiction in reliance on Rule 11(2):
"(2) A claim form may be served out of the jurisdiction on a defendant without the permission of the court provided that each claim against that defendant is either -
(a) a claim which by virtue of the Civil Jurisdiction and Judgments Act 1982 the court has power to hear and determine, made in proceedings to which the following conditions apply -
(i) no proceedings between the parties concerning the same cause of action are pending in the courts of any other part of the United Kingdom or of any other Convention territory;
and
(ii) either the defendant is domiciled in any part of the United Kingdom or in any other Convention territory, or the proceedings begun by the claim form are proceedings to which Article 16 of Schedule 1, 3C or 4 refers, or the defendant is a party to an agreement conferring jurisdiction to which Article 17 of Schedule 1, 3C or 4 to that Act applies;"
The issue before me depends on the Brussels Convention, 1968, which was applied to English Law by the Civil Jurisdiction and Judgments Act, 1982.
The question is whether under the terms of the Brussels Convention 1968 ("the Convention") the English courts have jurisdiction over this dispute.
On this application the Claimant does not dispute that the Defendant is domiciled in Germany for the purposes of Article 2 of the Convention.
Accordingly on the facts of this case, unless there is an agreement for exclusive jurisdiction of the English courts under Article 17 of the Convention the Defendant must be sued in Germany by virtue of Article 2.
Article 2 of the Convention provides that:
"Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the Courts of that State."
The Convention provides for certain exceptions to that over-riding principle. Counsel for the Claimant makes it plain that he does not rely on the exceptions in Articles 5 and 6. The Claimant does rely on Article 17.
Article 17 of the Convention, as amended, is in the following terms:—
"If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction. Such an agreement conferring jurisdiction shall be either -
(a) in writing or evidenced in writing, or
(b) in a form which accords with practices which the parties have established between themselves, or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned."
The Claimant's case is that the parties contracted on the basis of the Claimant's terms and conditions printed on the back of its EC Purchase Order, containing in clause 18 the following:
"These terms and conditions and any Contract incorporating the same shall be governed by the laws of England and both parties submit to the exclusive jurisdiction of the court of England."
The Claimant contends that that term was a part of the agreements between the parties and that it satisfies conditions (a) and (b) of Article 17. The Claimant does not rely on condition (c).
The Defendant:
(a) denies that Clause 18 of the EC Purchase Order formed part of any agreement between the parties; and
(b) contends that if it was part of any contract it does not satisfy any of the conditions (a), (b) or (c) of Article 17.
THE FACTS
In early 1995, the Defendant approached the Claimant requesting the opportunity to supply liner paper for the Claimant's plasterboard. Meetings and discussions between the parties followed. It is not suggested that at those meetings there was any mention of any standard conditions of trading by either party. Some letters concerning those meetings have been put in evidence. Any mentions of terms were limited to price, quantity and quality.
In its business, the Claimant orders goods on a printed form known as an EC Purchase Order (ECPO). On the back of that form, under the heading "Terms of Purchase", printed in English in minute type are a number of terms including the following:-
"1. Application of Terms
This document sets out the terms and conditions on which the addressee ("the Supplier") named in the Purchase Order overleaf ("the Order") agrees to supply to Lafarge Plasterboard Ltd ("the Company") the goods described in the Order ("the Goods") to the exclusion of any other terms, warranties, representations, written or oral, express or implied, binding on the Company whether made before or after acceptance. An Order constitutes an offer by the Company to purchase the Goods upon the terms herein. Acceptance shall be accomplished by the Supplier's return of a signed copy or acknowledgement of the Order or by the Supplier commencing delivery of the Goods in either event before expiry of the offer.
18. Law
These terms and conditions and any Contract incorporating the same shall be governed by the laws of England and both parties submit to the exclusive jurisdiction of the Courts of England. Nothing herein shall prejudice any rights which the Company will otherwise be entitled under the general law and in particular the Sale of Goods Act 1979 provided always that the Schedules to the Uniform Laws on International Sales Act 1967 are hereby excluded."
Those printed terms also included other terms as to quality that are relied on by the Claimant in the Particulars of Claim as terms breached by alleged deficiencies in the quality of the paper supplied.
There was nothing on the face of the ECPO drawing attention to the fact that there were conditions printed on the back.
The evidence before me also refers to another printed form used by the Claimant, a European Consignment Note. There was nothing on the face of that document stating that there were conditions on the back. There were conditions on the back of the Consignment Note. Included in those conditions was a term in English as follows:-
"The contract shall be governed by English Law. Nothing herein shall prejudice a similar right to which the Company will otherwise be entitled under the general law and in particular the Sale of Goods Act, 1893."
That term says nothing about the jurisdiction of any Court, and in argument before me, Counsel for the Claimant does not rely on it. Counsel for the Defendant, however, draws attention to the difference between the two conditions as to choice of law and jurisdiction and to other differences between the terms on the back of each of the Claimant's forms.
In a witness statement dated 28 March, 2000 Mr. Nigel Sweet, the Claimant's
Purchasing Manager wrote that he was instructed by Mr. Kevin Duffy, the Claimant's Production Manager, to send a Purchase Order for trial material to the Defendant. Counsel for the Defendant stresses that Mr. Sweet was not instructed to send the Claimant's Terms and Conditions to the Defendant, only to send a Purchase Order.
In his witness statement, Mr. Sweet further stated that:
(a) He sent by post on 28 March 1995 to Mr Noss of the Defendant, a completed EC Purchase Order for a purchase of raw material, and he produced a copy of his covering letter. With the same letter he sent a blank European Consignment Note.
It had been explained to the Defendant that the Consignment Note was to be filled in and given to the driver collecting the goods from the Defendant's factory in Germany.
(b) Thereafter orders were sent by fax. Only the face of the ECPO was faxed, but the whole top copy was sent by post thereafter marked "Order Confirmation".
(c) On receipt of the faxed copy, it was the Defendant's practice to post to the Claimant an Order Confirmation on the Defendant's printed form.
The letter of 28 March, 1995, was in the following terms:-
"Dear Sir,
Attached is the Purchase Order to cover the material required for delivery as per your meeting with Harald Lysdahl and Kevin...
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