Lloyd's Maritime and Commercial Law Quarterly
JURISDICTION OVER DEFENCES AND CONNECTED CLAIMS
Roche v. Primus
GAT v. LuK
Reisch v. Kiesel
In various places the Judgments Regulation1
refers to actions which it is expedient to hear and determine together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. It utilizes this concept to deal with jurisdiction over co-defendants,2
but only as long as one defendant is being sued in the courts of his domicile, and it uses it to provide a definition of related actions which may be stayed or dismissed by reference to prior proceedings pending before another court.3
But because the Regulation does not allow special jurisdiction to be asserted on the bare basis that the claim is connected to one over which a court does have jurisdiction, it may sometimes happen that connected claims, which ought to be tried together in order to prevent the risk of irreconcilable judgments, will not be. Some will consider that, when this happens, the Regulation has fallen short of the goal it should set for itself. The important question is how to deal with cases which ought to be tried together but which fall close to the edge of the jurisdictional rule which would permit this to happen.
The mandatory quinquennial review of the Regulation4
is currently underway. While we are waiting for its conclusions, it is fair to ask what the Court of Justice has done to improve this corner of the administration of justice within the “area of freedom, security and justice”, as the European Treaty now styles it.5
It had already showed a regrettable predisposition to be unhelpful. In Réunion Européenne SA
v. Spliethoff’s Bevrachtings-kantoor
6
it had denied that actions were related when one sought to establish the contractual liability of A, and the other the delictual liability of B, for an injury which must have been caused to the claimant by one or the other or both. The court denied that it could be expedient to try the two claims together to avoid the risk of irreconcilable
1. This Comment refers to the Judgments Regulation (44/2001/EC), but two of the three references were made in respect of the corresponding provisions of the Brussels Convention (Civil Jurisdiction and Judgments Act 1982, Sch 1, as amended). There is no material difference between the provisions relevant to these cases or this Comment.
2. Art 6.1. The qualification which appears in the text of the Regulation was taken from the decision of the court in Kalfelis
v. Schröder (189/87)
[1988] ECR 5565, which had read this into the earlier text of Art 6.1, which did not expressly contain it.
3. Art 28.
4. Art 73.
5. EC Treaty, Art 61.
6. (C-51/97)
[1998] I ECR 6511, dealing with jurisdiction under Art 6.1.
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