Court of Appeal rules on test for establishing jurisdiction against a non-anchor defendant

The anchor defendant in this case was sued under Article 2(1) of Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments (“the Regulation”) on the basis of his domicile in England. Article 6(1) provides that a person domiciled in another Member State can be sued in the English Courts (where one of the defendants is domiciled) where the defendant in question is one of a number of defendants and the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments from separate proceedings.

It is established practice in the Commercial Court that a good arguable case against the anchor defendant must be shown. However, it was argued in this case that, in Aeroflot Russian Airlines v Berezovsky [2013] EWCA Civ 784, the Court of Appeal had held that the strength of the case against the non-anchor defendants need not be assessed and so the same position should apply in respect of the anchor defendant too.

The Court of Appeal was divided on this question but the majority (Patten LJ and Beatson LJ) held that it was necessary to consider the merits of the claim against the anchor defendant (although in the end it was not necessary to decide the issue, and so their views are obiter). They were doubtful that the Aeroflot judgment could be applied to the position of an anchor defendant and noted that, “If the claims against one or more foreign co-defendants fall away, there would be no effect upon the claim against the anchor defendant or the claims against other foreign co-defendants. In contrast, without a legitimate claim against the anchor defendant, there is no reason for the foreign co-defendants to be ousted from their jurisdiction of domicile. .. Accordingly, how can it be expedient to determine a claim against an anchor defendant that is not seriously arguable together with a claim against a foreign co-defendant over whom there would be no jurisdiction under Article 6 apart from the link to the anchor defendant” (paragraph 66).

By contrast, Gloster LJ, in her dissenting judgment, found that there was clear Court of Justice of the European Union authority that Article 6(1) can be used to establish jurisdiction against non-anchor defendants even if the claim against the anchor defendant will not proceed (unless the claimant is engaged in a fraudulent abuse of Article 6(1)).