Whether there must be a genuine claim against an “anchor” defendant under Regulation 44/2001

http://www.bailii.org/ew/cases/EWHC/Ch/2014/3859.html

Article 6(1) of Regulation 44/2001 provides that a person may be sued, where he is one of a number of defendants, in the courts for the place where any one of them is domiciled (provided the claims are so closely connected that there would otherwise be a risk of irreconcilable judgments resulting from separate proceedings).

In this case, the “anchor defendant” is domiciled in England but an Irish defendant sought to argue that Article 6(1) did not apply because the anchor defendant was only a nominal defendant and there was no genuine claim against it. The claimant countered that under Article 6(1), the merits of the claim against the anchor defendant are irrelevant.

There is conflicting authority on this point. Two leading textbooks support the need for a genuine claim, as did Carr J in the case of Sabbagh v Khoury [2014]. However, the claimant argued that the earlier case of Joint Stock Company “Aeroflot Russian Airlines” v Berezovsky [2013] was authority for the position that the merits of the case against the anchor defendant are irrelevant.

In the event, Behrens HHJ was not required to decide the issue because he found that the anchor defendant was not a nominal defendant on the facts. However, he did opine that: “I am far from convinced that Carr J was wrong”. Accordingly, his provisional view was that if he had not been satisfied as to the genuineness of the claim against the anchor defendant here, he would have held that Article 6(1) did not apply.