Whether permission to serve out should be given in a case involving multiple defendants


The claimant wished to sue a Monacan bank regarding certain trades placed on her behalf and also two English group companies which, she said, failed adequately to investigate her complaint. The case was governed by Regulation 44/2001 and two conflicting principles arose: (1) the Regulation provides that companies should be sued in their Member State but (2) the claimant had entered into an agreement with the Monacan bank which provided for exclusive jurisdiction in favour of the courts of Monaco (which is not a Member State) – although the claimant could otherwise rely on one of the gateways for service out against the bank. Accordingly, the court was required to decide which factor was more important: the need to avoid the risk of inconsistent judgments and the cost of parallel proceedings or the need to hold parties to their bargain.

At first instance, the judge held that the Monacan bank should be sued in Monaco. That decision has now been upheld by the Court of Appeal.

It held that the judge had not erred in ranking the defendants in order of importance and he had been correct to see the claim against the foreign bank as being the most important of the claims. The only guidance to be drawn from Donohue v Armco [2001] was that parallel proceedings should usually be avoided, but the facts of that case were very different from the facts of this case. Furthermore, had the chosen jurisdiction in the agreement been a Member State, that would have prevailed over the principle that defendants should be sued in their own Member State.