Following the fatal crash of a helicopter off the coast of Brazil, the claimant operator together with the original purchasers of the helicopter brought a claim against the defendant vendor and related companies for, inter alia, an indemnity in relation to the compensation paid to families and the loss of the value of the helicopter, asserting that the crash had been caused by manufacturing defects which the defendants should have recognised prior to the accident. The first defendant and the third defendant were Italian companies, whilst the second defendant was an English company. The second defendant applied, inter alia, for summary judgment on the basis that there was no viable claim against it, and the other defendants applied to set aside the proceedings against them for want of jurisdiction on the ground that article 8(1) of Parliament and Council Regulation (EU) No 1215/2012 (“Brussels Recast”), the only basis for service of the proceedings against them as foreign-domiciled companies, could only be invoked if there was a viable claim against the second defendant as anchor defendant, and there was no such claim.
On the defendants’ applications—
Held, applications granted. Article 8(1) of Brussels Recast did not operate either where there was firm evidence that the claimant had artificially fulfilled, or prolonged the fulfilment of, that provision’s applicability, which would be the case where the claimant commenced a claim it knew was hopeless, or where the claim against the anchor defendant was not sustainable. Such a merits test was to be implied since, where there was no arguable claim against the anchor defendant, there was either no or only a very low risk of irreconcilable judgments that that provision was designed to avoid. On the facts, the claim against the second defendant had no real prospect of success. Given that there was no other compelling reason for a trial, the claim against the second defendant had to be summarily dismissed. Since there was a merits test which had to be satisfied in relation to the anchor defendant before article 8(1) could apply, and there was no viable claim on the facts, article 8(1) did not apply. As this was the only basis for the claimed jurisdiction against the other defendants, their application also succeeded and the proceedings against them had to be set aside (paras 65, 67, 69, 71, 72, 73–75, 76, 77, 78, 83, 85, 87, 88, 90, 125–128, 153, 154).
Tim Marland (instructed by Holman Fenwick Willan llp) for the defendants.
Matthew Reeve (instructed by asb law LLP, Crawley) for the claimants.