Latchin (t/a Dinkha Latchin Associates) v General Mediterranean Holdings SA [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | Andrew Smith J |
| Judgment Date | 04 December 2001 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 04 December 2001 |
Queen's Bench Division (Commercial Court).
Andrew Smith J.
D Lewis (instructed by Lawrence Graham) for the claimant.
J Lee (instructed by DLA) for the defendants.
The following cases were referred to in the judgment:
Ace Insurance SA-NV v Zurich Insurance CoUNK [2001] EWCA Civ 173; [2001] CLC 526.
Attock Cement Co Ltd v Romanian Bank for Foreign TradeWLR [1989] 1 WLR 1147.
Canada Trust Co v Stolzenberg [1998] CLC 23, [1998] 1 WLR 547 (CA); [2001] CLC 118, [2000] 3 WLR 1376 (HL).
De Beers Consolidated Mines Ltd v HoweELR [1906] AC 455.
Deichland, TheELR [1990] 1 QB 361.
Dubai Bank Ltd v AbbasUNK (unreported, 17 July 1996, CA (CAT No. 978/1996)).
Egyptian Delta Land and Investment Co v ToddELR [1929] AC 1.
Gascoine v Pyrah [1991] TLR 537; [1994] IL Pr 82 (CA).
Harrods (Buenos Aires) Ltd, ReELR [1992] Ch 72.
Kalfelis v Bankhaus Schroder Munchmeyer Hengst & CoECAS (Case 189/87) [1988] ECR 5565.
Lloyd's Register of Shipping v Campenon BernardECAS (Case C-439/93) [1995] ECR I-961.
Rewia, TheUNK [1991] 1 Ll Rep 69; [1991] 2 Ll Rep 325 (CA).
SAR Schotte GmbH v Parfums Rothschild SARLECAS (Case 218/86) [1987] ECR 4905.
Sarrio SA v Kuwait Investment Authority [1997] CLC 1640; [1999] 1 AC 32.
Somafer SA v Saar-Ferngas AGECAS (Case C-33/78) [1978] ECR 2183.
Swedish Central Railway Co Ltd v ThompsonELR [1925] AC 495.
Unit Construction Co Ltd v BullockELR [1960] AC 351.
Conflict of laws — Stay of proceedings — Forum non conveniens — Claimant sued Luxembourg company and managing director domiciled in England on alleged oral contracts — Defendant company not domiciled in UK — Whether individual defendant acted as branch or agency of company so that court had jurisdiction over it — Whether claim against both defendants properly joined in one action — Whether proceedings should be stayed on forum grounds — Civil Jurisdiction and Judgments Act 1982, s. 42, Sch. 1 (Brussels Convention), art 2, 5(5), 6(1).
These were applications by the defendants contending that the court had no jurisdiction over the first defendant company (“GMH”) and that the action against both defendants should be stayed on the grounds of forum non conveniens.
GMH was incorporated and registered in Luxembourg. The second defendant, “ MA”, was its chairman and managing director. MA was resident in London and domiciled in England and Wales. The claimant was an architect who claimed to be entitled to payment for work done by way of architectural services in relation to development sites in Morocco pursuant to oral contracts made in 1994 and 1995 with MA in London. None of the Moroccan projects was proceeded with. The claimant claimed £223,807 from GMH and £17,906 from MA. The defendants did not dispute that the claimant and MA had met at the London offices which GMH said were those of a UK subsidiary. The defendants denied that there was any agreement to pay the claimant for work which he had undertaken on a speculative basis in order to interest the defendants in his proposals. They contended that the court had no jurisdiction over GMH and that the action against both defendants should be stayed on grounds of forum non conveniens.
The claimant argued that the court had jurisdiction over GMH under art. 2 of the Brussels Convention since GMH was domiciled in the UK under s 42 of the Civil Jurisdiction and Judgments Act 1982 because its central management and control was exercised in the UK. Alternatively the claimant argued that MA was acting on behalf of GMH in London as a branch, agency or establishment within art. 5(5). As a further alternative the claimant argued that MA was domiciled in England and that he was entitled to sue GMH in England also under art. 6 of the Brussels Convention.
Held, dismissing the defendants' applications:
1. The claimant had to show a good arguable case that GMH was domiciled in the UK under s. 42 of the Civil Jurisdiction and Judgments 1982 for the court to have jurisdiction under art. 2 of the Brussels Convention. Since the issue of domicile would not arise at the trial, the court had to scrutinise the evidence on that issue carefully. The evidence did not establish that GMH's central management and control was exercised either partly or wholly in England. Even if MA took day to day management decisions in London that did not show that central management and control was not in Luxembourg. There was no proper reason to reject the defendants' evidence that control was not exercised in England. (Canada Trust Co v Stolzenberg[2001] CLC 118, [2000] 3 WLR 1376applied.)
2. Although the evidence was less than complete and the matter was one of dispute, the claimant had a good arguable case that MA had presented himself as acting for GMH and had done so from offices in London over a substantial period and that accordingly MA had been acting as a branch, agency or establishment of GMH within art. 5(5) of the Brussels Convention. The dispute had arisen out of the operations of the branch or agency because it had involved undertakings entered into at the place of business in the name of the parent body. The court therefore had jurisdiction over GMH. (Somafer v Saar-Ferngas AGECAS(Case 33/78)[1978] ECR 2183applied.)
3. There was a sufficient link between the claims against MA and GMH for the claimant to rely on art. 6. The claims against both defendants were properly brought in one action under the CPR. For the purposes of art. 6 the test was whether there was a real risk of conflicting or contradictory judgments if the claims were tried by different courts. That test was satisfied and the claims against the two defendants were properly joined. The claim against MA was not so small as to be regarded as a device to obtain jurisdiction against GMH. It would be an abuse for the claimant to rely upon art. 6 to join GMH if the action against MA were stayed on forum grounds, because there would then be no real issue for the court to try against MA as the defendant domiciled within the jurisdiction.
4. The court retained a discretion to stay on forum grounds even in a Brussels Convention case. On the basis that the contracts were probably governed by English law and that the central and perhaps only disputes would be whether the contracts had been concluded in London and if so between whom and on what terms, the defendants had failed to show that Morocco would be a more convenient forum. (Ace Insurance SA-NV v Zurich Insurance CoUNK[2001] EWCA Civ 173; [2001] CLC 526applied.)
Andrew Smith J:
1. This is an action brought by Mr Dinkha Latchin in which he claims to be entitled to payment for work by way of architectural services pursuant to contracts with the first defendant, General Mediterranean Holdings SA (“GMH”), in relation to three projects and pursuant to a contract with Mr Auchi in relation to a fourth project. All four projects were for the development of sites in Morocco, projects one and two both being for a new hotel on the site of the derelict Hotel Villa France in Tangiers, project three being the development of the Old English Tennis Club at the Emmsalla Gardens in Tangiers and the fourth project being, according to Mr Latchin, in respect of a new private villa for Mr Auchi in Tangiers. It is in evidence before me, and is not disputed, that the development of the hotel and of the Old English Tennis Club ran into planning difficulties, and none of the four developments in fact proceeded.
2. Mr Latchin's claim, as pleaded, is that the contracts were made orally in 1994 and 1995, and the work was completed by August 1996. He claims £223,807 from GMH and £17,906 from Mr Auchi.
3. GMH is a company incorporated and registered in Luxembourg. Mr Auchi is the chairman and managing director of GMH.
4. The defendants contend that the court has no jurisdiction over GMH, and that the action against both defendants should be stayed on the grounds of forum non conveniens, and in their applications before me they seek orders accordingly.
5. The claimant contends that the court has jurisdiction over GMH under the terms of the Brussels Convention, and also contends that the action should not be stayed. The provisions of the Brussels Convention which the claimant relies upon are art. 2, art. 5(5) and art. 6(1). The claimant through his counsel, Mr David Lewis, abandoned his contention that the court has jurisdiction under art. 5(1) of the Brussels Convention.
6. Before turning to the issues which I have to decide on this application, I refer to the evidence on three points: first, the evidence about the claimant; secondly, the evidence concerning the organisation of the defendants and their business; and thirdly, the evidence about the contracts alleged by Mr Latchin.
7. Until 1998 the claimant worked and lived in Isleworth, West London, although Mr Auchi's evidence is that “at the time” he understood Mr Latchin lived in Morocco. In 1998, according to his witness statement, he “re-located” to Dubai, where he now works. He retains an address in Chiswick High Road, London. His evidence is that he is an architect trading as Dinkha Latchin Associates. In his original pleading and witness statement he states that he has been an associated member of the Royal Institute of British Architects (“RIBA”) since 1973. In fact it is not in dispute that he has not been registered with RIBA since 1994, his evidence being that his membership lapsed due to non-payment of his membership fees, and that his registration with the Architects Registration Board lapsed for the same reason at the same time. The defendants' evidence is that Mr Latchin did not and does not possess a licence to practice in Morocco, and this is not denied by him.
8. Mr Auchi resides in London, and is domiciled in England and Wales. As for GMH, I refer first to a witness statement of Ms Anna Zoumaras, a solicitor...
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