John Russell QC and Tom Bird win in Court of Appeal:

The sole issue on this appeal was whether an interlocutory agreement reached by the parties’ solicitors in correspondence constituted an exclusive jurisdiction agreement in favour of the English courts within the meaning of Regulation (EU) No 1215/2012 on jurisdiction and enforcement of judgments in civil and commercial matters (“the Brussels Regulation Recast”).

The agreement in question concerned the appellant’s application to join two French companies, PHP Trading and SODIPAM, as third and fourth parties to additional claims. As part of an exchange of correspondence on procedural issues, the respondents’ solicitors agreed to accept service of the joinder application “without prejudice to their position on jurisdiction” and, if the application were successful and the respondents’ jurisdictional challenge failed, to accept service of the additional claims.

Although the appellant succeeded on its joinder application, the judge stayed the additional claim under article 29 of the Brussels Regulation Recast because, before the hearing, PHP Trading and SODIPAM had issued proceedings in the French court, which became first seised of the dispute.

On appeal, the appellant argued that the respondents’ agreement to accept service of the additional claims amounted to an exclusive jurisdiction agreement within the meaning of the Brussels Regulation Recast. Agreeing to accept service of the additional claims, the appellant submitted, was inconsistent with a stay of the proceedings.

The Court of Appeal dismissed the appeal. It noted the practical difference between an agreement about conferring jurisdiction on the courts of a Member State and an agreement, such as the one in the present case, about handling interlocutory matters. There was nothing in the correspondence which looked like a jurisdiction agreement, let alone could be clearly said to be one.

Two points of interest arise:

Although the court ultimately rejected the appellant’s position, the facts provide a salutary reminder, whenever drafting interlocutory correspondence, to be alert to the possibility that a straightforward agreement to accept service might have unforeseen jurisdictional consequences.

The Court of Appeal left open an interesting point of EU law. The parties disagreed as to the scope of application of EU law when determining whether there was a jurisdiction agreement for the purposes of Article 25. The appellant’s argument was that the autonomous EU concept was simply¸ “an agreement”. If there was an Article 25 agreement, then everything else was a question of construction to be determined by the national law. The respondents contended that the EU concept was “an agreement conferring jurisdiction” and so at an EU law level the court had to be satisfied that jurisdiction was clearly and precisely conferred. The Court of Appeal considered it unnecessary to decide this point, since even on the appellant’s preferred approach, they lost as a matter of construction.