Messier Dowty Ltd v Sabena SA
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,LORD MUSTILL |
| Judgment Date | 21 February 2000 |
| Neutral Citation | [2000] EWCA Civ J0221-3 |
| Judgment citation (vLex) | [2000] EWCA Civ J0221-2 |
| Docket Number | Case No: QBCMI 1999/0963A3,QBCMI 99/0963/A3 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 2000 |
[2000] EWCA Civ J0221-2
The Master Of The Rolls (lord Woolf)
Lady Justice Hale
Lord Mustill
QBCMI 99/0963/A3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
(MR JUSTICE MOORE-BICK)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(COMMERCIAL COURT)
Royal Courts of Justice
Strand
London WC2
MR MICHAEL SWAINSTON (Instructed by Messrs Herbert Smith, London, EC4A 2HS)) appeared on behalf of the Appellant
MR PHILIP SHEPHERD (Instructed by Messrs Beaumont & Son, London, E1 8AW) appeared on behalf of the Respondent
Monday 21 February 2000
POST JUDGMENT DISCUSSION
LORD WOOLF, MR: You heard what I said with regard to Lord Mustill already. Could I add that he is aware of the correspondence and he has authorised the two members of the court to deal with it. Are you content with that?
MR SWAINSTON: My Lord, yes.
LORD WOOLF, MR: We are very anxious that the matter should be dealt within time for the French courts to be aware of what the argument was.
MR SWAINSTON: We are very grateful for the opportunity to address you further on this point. It arises because, in paragraph 47 of your Lordship's judgment, you recognise that if the claim brought by Dowty serves a Convention purpose, that would supply the purpose required for making a declaration in domestic law.
LORD WOOLF, MR: That is an overstatement. Can I try and help you, and I am sorry that my judgment does not speak for itself in this regard. Basically, you have seen Mr Shepherd's letter, he has set out the reasoning in the judgment. What I have done is adopted a two-stage process. First, I have looked at the matter as a matter of English procedure and then said, is there anything in the Convention which prevents us taking the course, on the position as it is at present I would emphasise, which we would be minded to take as a matter of English procedure? We only then look at the Convention for that purpose. I think you may not, and I am sure the fault is mine, properly have interpreted what I was seeking to say.
MR SWAINSTON: I am grateful for that. But the point still arises when one looks at the Convention for that purpose. The way it arises is that you anticipate that there would be a chance for the English court to take a second look if Sabena——
LORD WOOLF, MR: I do not think I said that.
MR SWAINSTON: You say at paragraph 50:
"It is not at present expedient that Sabena should be joined for the reasons already given." However, if a claim were to be made by Sabena against Dowty, Dowty would be in a different position. Dowty would be entitled to contend that the additional requirement had been fulled. There would be a risk of irreconcilable judgments."
LORD WOOLF, MR: I accept that, but the claim referred to is not actually a claim for proceedings but indicating a claim, extra proceedings, against Dowty. What happens in that context, and when it happens, is a matter the court cannot anticipate. I was leaving open the situation in your client's interest to say the situation may be different.
MR SWAINSTON: I am grateful for that and I will not press this further than I ought. But just to say that if it is right, as I suggested in my letter, that if Sabena decides to sue, the English courts would not then have an opportunity to look at the matter under Article 6. That does force a closer analysis of what Kalfelis v Schroder [1998] 5 ECHR 5565 is addressing when it looks at risk of irreconcilable judgments because my learned friend never submitted that that risk was diminished by the fact that subpoena has not made a claim. When one looks at the Kalfelis judgment, and your Lordship gets the relevant part from our skeleton——
LORD WOOLF, MR: It must be the case, if the situation at present is as we consider it is, where Sabena may sue Dowty, either in this country or in France, that must reduce the risk of irreconcilable judgments.
MR SWAINSTON: With respect, no because if you look at page 19 of our skeleton, note 19 sets out the part of Kalfelis which defines the test. It is concerned with the risk of inconsistent disposal of the claims brought by the claimant which are before the court when it makes its Article 6 assessment. So what your Lordship is looking at is the claim that my clients have brought against Airbus and British Aerospace and the claim that my clients have brought against Sabena. It is then necessary to consider whether they raise the prospect of different judgments on the same issue, which is the Dowty question. In that sense one is not concerned with the question of whether Sabena might at some future stage bring a claim because what one is addressing is the claims presently on the table brought by my clients. Your Lordships sees at paragraph 12 that the proceedings are related where the test is where the action is brought against the various defendants are related when the proceedings are instituted. If your Lordship couples that with the fact that we are obliged when looking at Convention cases to treat negative declarations in the same way as a positive case, (see the Tatry), the combination means that the test of potential irreconcilability is met. It is very important that it should be because the only other way that the Convention can tackle potential irreconcilability is under Article 22. But by the time that an Article 22 case gets to the second court, the proceedings in the first case may be finished and there is no opportunity for proper consolidation in the way envisaged under Article 6.
LORD WOOLF, MR: That put your argument very succinctly. I do not need to trouble you Mr Shepherd. We are grateful to Mr Swainston for bringing the matter to our attention. He did so most courteously prior to our giving judgment in this matter. We have seen the way it was put forward both by letter, and now heard his oral submission. I have taken into account the matters that he has referred to, and I am also authorised to say this on behalf of Lord Mustill who was well aware of the point Mr Swainston wishes us to take into account, and accordingly, so far as I am concerned, there is no need for further argument in this matter. Subject to anything my Lady wishes to say, we would hand the judgments down as being the judgments of this case.
LADY JUSTICE HALE: I agree.
MR SWAINSTON: There is an agreement with regard to costs that an interim payment will be made within fourteen days. There is one other matter I must mention which is a particular point on permission to appeal. I ask your Lordships for leave to appeal given the importance of the Article 6 question. If your Lordship were not minded to give it, then, in any event, I would ask your Lordship to stay the effect of the court's order until application can be made to the House of Lords. The reason, of course, is that it may affect the jurisdictional position if the present action disappeared before an effective appeal and render an appeal nugatory.
LORD WOOLF, MR: Mr Shepherd, the costs have been agreed?
MR SHEPHERD: They have.
LORD WOOLF, MR: And it has although been agreed about the interim payment of costs, so I need not trouble you about that matter. So far as stay is concerned——
MR SHEPHERD: May I address the court very briefly.
LORD WOOLF, MR: Yes.
MR SHEPHERD: The difficulty about the stay is that Moore-Bick J was persuaded to order a stay pending the hearing of this appeal. As my Lord knows the Paris court is to be addressed on 24 February. The submissions which were made by Dowty's Paris lawyers to the court in Paris in their pleadings suggested that the effect of the stay which had been granted by Moore-Bick J meant that, for all purposes, Sabena remained a party to the action. In short, my Lord and my Lady, there had been a degree of over enthusiasm by Dowty's Paris lawyers as to what the effect of the stay was, to the extent that those who instruct me wrote to Herbert Smith and invited them to send a letter to the Paris court, or to their Paris lawyer, correcting the statements which he had made in his pleading to the Paris court. They did so. Our concern is——
LORD WOOLF, MR: They have corrected the position, have they not?
MR SHEPHERD: They have corrected the submission to be made by the Paris lawyers which was effectively to say that, because the matter was under appeal, it was as if the original judgment had never been made and, my Lords, that was a misunderstanding of the position. Our concern is that that misunderstanding will persist. It has been a matter of great difficulty explaining to our counterparts in Paris just exactly what the court was intending. It was intending simply to preserve the status quo, having already ruled that Sabena should no longer be a party to the proceedings but simply preserve the status quo for the purposes of not rendering the appeal nugatory. Nevertheless, the judgment was final and binding. That to civil lawyers was a concept of almost impossible complexity.
Our concern is that any further stay would be read by the Paris court with some degree of puzzlement.
LORD WOOLF, MR: Could I test out on you, Mr Shepherd. I do not know whether it would be any more simple for the Paris court to understand, but an alternative to granting a stay is merely to indicate that the order which we would make, which would result in the appeal being dismissed, that your clients be dismissed from the proceedings, should not be drawn up until after there has been an opportunity for the House of Lords to consider the matter. I think that probably, equally, would be capable of being misunderstood. What we would be prepared to indicate...
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