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Published online by Cambridge University Press: 17 January 2008
A fundamental clash of values, which could affect the very foundations of the Brussels Convention, was revealed in the recent judgment of the Court of Appeal in Turner v. Grovit.
1. [1999] 3 W.L.R. 794; [1999] 3 All E.R. 616.
2. This is not the first time the Chequepoint group has featured in litigation under the Brussels Convention: they were also involved in Shevill v. Presse Alliance SA, Case C-68/93, [1995] E.C.R. 1–415; [1995] 2 W.L.R. 499 (ECJ), a case in which they, and one of their former employees, sued a French newspaper for libel as a result of an article suggesting that Chequepoint was involved in laundering drug money.
3. On 5 Mar. 1998, he received a letter terminating his employment on the ground that he had walked out of the office.
4. Art.2 was held to be applicable on the ground that Harada was domiciled in England: it had a registered office in England and its central management and control was located there. Art.5(1) would have been applicable because Turner habitually carried out his work in England, even though he was temporarily employed in Spain. If Harada had not been domiciled in England, the Tribunal would have had jurisdiction under Art.5(5), since the contract of employment was concluded through Harada's English office: Lloyd's Register of Shipping v. Société Campenon Bernard, Case C-439/93, [1995] E.C.R. 1–961.
5. The order discharging it was stayed pending appeal.
6. The judgment of the court was given by Lord Justice Laws, with whom Lord Justice Stuart-Smith and Mr Justice Jonathan Parker concurred.
7. See Lonrho Plc v. Fayed (No.5) [1993] 1 W.L.R. 1489 at p.1502 (CA).
8. See, for example, Ashmore v. British Coal Corpn [1990] 2 Q.B. 338 (CA).
9. If the applicant can move fast enough, he may also obtain an injunction to restrain the abusive litigant from commencing the foreign proceedings.
10. The term “antisuit injunction” originated in the United States.
11. Wharton v. May (1799) 5 Ves. 71 (31 E.R. 454); Kennedy v. Earl of Cassilis (1818) 2 Swans. 313 (36 E.R. 635); Bushby v. Munday (1821) 5 Madd. 297 (56 E.R. 908); Hanison v. Gurney (1821) 5 Jac. & W. 563 (37 E.R. 743); Beauchamp v. Marquis of Huntley (1822) Jac. 546 (37 E.R. 956); Beckford v. Kemble (1822) 1 Sim. & St. 7 (57 E.R.3); Lord Portarlington v. Soulby (1834) 3 My. & K. 104 (40 E.R. 40); Booth v. Leycester (1837) 1 Keen 579 (48 E.R. 430); Bunbury v. Bunbury (1839) 1 Beav. 38 (48 E.R. 963); The Carron Iron Co. v. Maclaren(1855) 5 H.L.C. 416.
12. Hope v. Carnegie (1866) 1 Ch.App. 320; Armstrong v. Armstrong [1892] P 98; Moore v. Moore (1896) 12 T.L.R. 221; Pena Copper Mines v. Rio Tinto Co. [1911–1913] All E.R. Reprint 209 (CA). An injunction concerning proceedings in Italy was refused in Love v. Baker (1665) 1 Ch.Ca. 67 (22 E.R. 698).
13. For its recent development in England and the United States, see Hartley,“Comity and the Use of Antisuit Injunctions in International Litigation” (1987) 35 Am Jo.Comp.L, 487.
14. Kongress Agentur Hagen v. Zeehaghe, Case C-363/88, [1990] E.C.R. 1–1860, paragraph 17 of the judgment.
15. ibid, paragraph 20 of the judgment.
16. It is doubtful whether this argument would have succeeded: if there had been a new contract of employment with CSA, the Spanish court would have had jurisdiction under Art.5(1).
17. The Court of Appeal considered that this was the case; however, Art.21 states that the proceedings must be “between the same parties”, and, though the European Court stretched this concept somewhat in Drouot Assurances v. CMI, Case C–351/96, [1999] 2 W.L.R. 163 (ECJ), it is uncertain whether two companies in the same group could be regarded as the same person for the purpose of Art.21.
18. This would almost certainly have been applicable; however, it would not have required the Spanish court to decline jurisdiction: it would merely have given it a discretion to do so.
19. Whether this would have been successful would have depended on Spanish law.
20. On the facts found by the Court of Appeal, this defence would almost certainly have succeeded.
21. See previous footnotes.
22. However, relations between English and American courts are fairly harmonious despite the fact that the former from time to time issue injunctions regarding proceedings before the latter (and vice versa).
23. [1994] 1 W.L.R. 588 (CA).
24. It was also argued that, since the Greek courts were seised before the English ones, the latter should decline jurisdiction under Art.21 of the Convention. The Court of Appeal rejected this contention on the ground that Art.17 prevails over Art.21. For previous decisions by English courts to this effect, see Kloeckner v. Gatoil Overseas [1991] 1 Lloyd's Rep. 175; Anonima Petroli Italiana v. West of England Shipowners Mutual Insurance Association (London) (unreported), 9 Apr. 1990; see also IP Metal v. Ruote OZ [1993] 2 Lloyd's Rep. 60. The European Court has yet to rule on the matter.
25. They might have held that it was not exclusive, that it did not cover the tort action or that it was invalid.
26. In Société Nationale Industrielle Aérospatiale v. Lee Kui Jak [1987] A.C. (PC), for example, the beneficiary was a state-owned French company.
