Mölnlycke A.B. v Procter & Gamble Ltd

JurisdictionEngland & Wales
Judgment Date27 June 1991
Judgment citation (vLex)[1991] EWCA Civ J0627-10
Docket Number91/0815
CourtCourt of Appeal (Civil Division)
Date27 June 1991
(1) Molnlycke AB
(2) Peaudouce (UK) Limited
(1) Procter & Gamble Limited
(2) The Procter & Gamble Company
(3) Procter & Gamble GMBH

[1991] EWCA Civ J0627-10


Lord Justice Dillon

Lord Justice Woolf

Lord Justice Leggatt








Royal Courts of Justice

MR SIMON THORLEY Q.C. and MR GUY BURKHILL, instructed by Messrs Simmons & Simmons, appeared for the Appellants (Defendants).

MR CHRISTOPHER FLOYD and MR RICHARD ARNOLD, instructed by Messrs Hopkins & Wood, appeared for the Respondents (Plaintiffs).


This is an appeal by the defendants in the action against an order of Mr Justice Hoffmann made on 22nd March 1991. By that order the judge directed that the plaintiffs have leave to amend the writ to join Procter & Gamble GmbH (which I shall call "GmbH") as third defendant in the action and to make consequential re-amendments of the statement of claim.


The action is a patent action for infringement of a United Kingdom patent relating to disposable nappies. The first plaintiff, a Swedish company, is the registered proprietor of the patent. The second plaintiff, an English company, is exclusive licensee under the patent. The two defendants and GmbH, the added third defendant, are companies in a well-known multi-national group. The first defendant, Procter & Gamble Limited, is the English company which is a member of the group. The second defendant, the Procter & Gamble Company, is the American parent company of the group. GmbH is the German company in the group.


The infringement relied on in the statement of claim is the marketing in the United Kingdom, by the first defendant, of nappies manufactured by GmbH in Germany; they were sold under the name Pampers. The first and second defendants and GmbH were at all material times well aware of the patent. Their position is that they say that their products do not infringe.


The judge, in allowing the joinder of GmbH, applied the test for striking out under Order 18, rule 19. He said at 3G in his judgment:

"So it seems to me that in this case I must also look at the matter as if the Plaintiff were intending to pursue a substantive remedy against this Defendant [that is GmbH]. It follows that as no leave is required for service, the Plaintiff is entitled as of right to implead the Defendant, subject only to the possibility of striking out under Order 18, rule 19. That accordingly is, in my judgment, the proper criterion to apply."


In effect he is saying that as the joinder of the third defendant did not require leave under Order 11, the striking out criterion was the criterion to apply. It is of course well-known that a claim will only be struck out in a plain and obvious case. It is a difficult criterion for defendants.


This is however a Brussels Convention case. Under the Civil Jurisdiction and Judgments Act 1982, the Brussels Convention, under section 2(1), has the force of law in the United Kingdom and judicial notice is to be taken of it. Under section 3(1),

"Any question as to the meaning or effect of any provision of the Conventions shall, if not referred to the European Court in accordance with the 1971 Protocol, be determined in accordance with the principles laid down by and any relevant decisions of the European Court."


There are certain further matters in section 3 as to taking judicial notice of decisions of the European Court and as to the travaux preparatoires that were antecedent to the original Convention, the 1971 Protocol and the Accession Convention.


Section 42 provides by subsection (1) that:

"For the purposes of this Act the seat of a corporation or association (as determined by this section) shall be treated as its domicile."


Under subsection (6) of section 42 it is provided that:

"…a corporation or association has its seat in a state other than the United Kingdom if and only if—

  • (a) it was incorporated or formed under the law of that state and has its registered office or some other official address there; or

  • (b) its central management and control is exercised in that state."


It is not in doubt that the seat and therefore the domicile of GmbH is in Germany and nowhere else.


I come then to the Convention itself. Article 2 provides that:

"Subject to the provisions of this Convention, persons domiciled in a Contracting State shall…be sued in the courts of that state."


Article 3 provides that:

"Persons domiciled in a Contracting State may be sued in the courts of another Contracting State only by virtue of the rules set out in Sections 2 to 6 of Title" II in the Convention."


These include, as the only possible alternative candidates to pursuing GmbH in Germany, Articles 5(3) and 6.


As to Article 6 it is provided that:

"A person domiciled in a Contracting State may also be sued:

(1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled."


In relation to Article 6, we have the benefit of the decision of the European Court in the case of Kalfelis, reported in 1988 European Court Reports 5565, and also of the decision of this court in the Rewia handed down a week ago. I should refer briefly to the views expressed in relation to Article 6 in Kalfelis in answer to the first question raised in that case.


Paragraph 8 of the judgment is as follows:

"The principle laid down in the Convention is that jurisdiction is vested in the courts of the State of the defendant's domicil and that the jurisdiction provided for in Article 6(1) is an exception to that principle. It follows that an exception of that kind must be treated in such a manner that there is no possibility of the very existence of that principle being called in question."


Paragraph 10:

"In order to ensure, as far as possible, the quality and uniformity of the rights and obligations under the Convention of the Contracting States and of the persons concerned, the nature of that connection must be determined independently."


Paragraph 11:

"In that regard, it must be noted that the abovementioned report [and that is one of the travaux preparatoires] prepared by the committee of experts referred expressly, in its explanation of Article 6(1), to the concern to avoid the risk in the Contracting States of judgments which are incompatible with each other. Furthermore, account was taken of that preoccupation in the Convention itself, Article 22 of which governs cases of related actions brought before courts in different Contracting States."


It follows from Kalfelis and the Rewia that, where Article 6 is concerned, the test to be applied for joinder must be, what I would call briefly, the Order 11 test—the test that would have been applied had permission for service had to be obtained under Order 11.


In the present case there are certain facts which are put in evidence on behalf of the plaintiffs in the 11th affidavit of their solicitor, Mr Wood. He says in the opening sentences of paragraph 22 of the affidavit:

"If the documents sought are not in the power of the Second Defendant, [that is the US corporation] the Plaintiffs seek in the alternative to join Procter & Gamble GmbH [and a body I need not refer to further] as additional Defendants. As will be apparent from the foregoing, the Plaintiffs' only purpose of joining these companies is to obtain the discovery sought on this motion. The Plaintiffs accept that adequate relief can be obtained from the existing Defendants if the Plaintiffs are successful."


The history of the matter was that a motion was issued claiming, as the primary relief, specific discovery of certain classes of documents as against the second defendant, which had been added at an earlier stage under Order 11. The motion also sought in the alternative that GmbH should be added as a party to the action with consequential relief. In the event it appeared that the second defendant did not have the relevant documents but GmbH did or probably did. Accordingly, the plaintiffs proceeded with their alternative claim rather than with their claim for further discovery against the second defendants.


We have not heard arguments on this appeal from counsel for the plaintiffs. Subject to that however I would take the view that if the plaintiffs rested only on Article 6, it would be improper to join GmbH merely to obtain discovery especially as there seems to be no doubt that the requisite discovery could be obtained from GmbH in Germany by an application in Germany under the Hague Convention to which Germany is also a party.


However, Article 5(3) is an independent ground for special jurisdiction under the Brussels Convention. It provides that:

"A person domiciled in a Contracting State may, in another Contracting State, be sued

  • (3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred."


Article 5(3) was also considered in the Kalfelis case on the second question which the European Court there had to consider. I shall read paragraphs 16 to 19 of the decision in Kalfelis.

  • "16. Accordingly, the concept of matters relating to tort, delict or quasi-delict must be regarded as an autonomous concept which is to be interpreted, for the application of the Convention, principally by reference to the scheme and objectives of the Convention in order to ensure that the latter is given full effect.

  • 17. In order to ensure uniformity in all the Member States, it must be recognized that the concept of 'matter relating to tort, delict and quasi-delict' covers all...

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