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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Alfa Laval Tumba AB & Ors v Separator Spares International Ltd & Ors  EWCA Civ 1569 (29 November 2012)
Cite as:  ICR 455,  ILPr 10,  2 All ER (Comm) 177,  WLR(D) 263,  1 WLR 1110,  EWCA Civ 1569,  CP Rep 9,  2 All ER 463,  FSR 22
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ON APPEAL FROM HIGH COURT OF JUSTICE
THE HONOURABLE MR JUSTICE BRIGGS
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE DAVIS
| ALFA LAVAL TUMBA AB
ALFA LAVAL KRAKOW Sp. zo.o (Formerly WYTWÓRNIA SEPARATOR KRAKÓW Sp.zo.o)
|- and -
|SEPARATOR SPARES INTERNATIONAL LTD (In Liquidation)
MARK RICHARD HARDWICK PACY
SEPARATOR SPARES INT. POLAND Sp. Zo.o
Third Defendant & Appellant
Fourth Defendant & Appellant
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr John Baldwin QC (instructed by Hogan Lovells International LLP) for the Respondents
Hearing dates: 7th & 8th November 2012
Crown Copyright ©
Lord Justice Longmore:
The Alleged Facts
Causes of Action
Jurisdiction against Mr Jasikowski; Section 5 of the Regulation
"In relation to insurance, consumer contracts and employment, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules provide for."
Section 5 of the Regulation is headed "Jurisdiction over individual contracts of employment". Article 18.1 provides that:
"In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5."
Article 20.1 provides that:
"An employer may bring proceedings only in the courts of the Member States in which the employee is domiciled."
"The contract of employment is relevant, and there is a matter relating to an individual contract of employment, only if the employer is seeking to rely on that contract of employment in order to bring his claim against the employee."
At paragraph 25 he said that he could see no justification of policy for conspirators, or any tortfeasors, who are employees of the claimant being given jurisdictional advantages not enjoyed by conspirators or other tortfeasors who are not employees of the claimant. At paragraph 26 he concluded that the phrase in Article 18 "in matters relating to individual contracts of employment" only referred to claims which were made under individual contracts of employment. This was the case which Briggs J followed in reaching his decision that Article 20.1 did not apply.
" The policy behind section 5 is based on the probability that the employer is financially stronger than the employee. Therefore, if one or other of them has to take proceedings in a foreign court, it should be the employer who has to bear the additional cost and inconvenience involved to ensure, so far as practicable, that the parties are on an equal footing so far as jurisdiction is concerned. The advantage is given to the employee as a member of a class, namely employees, and that advantage should be confined to cases where his status as an employee is legally relevant. Section 5 should not be construed as conferring jurisdictional advantages on a poor defendant sued by a rich claimant if they happen to be employee and employer. The reference to "individual contracts of employment", rather than to the employment relationship generally, indicates that what is relevant is the contract of employment rather than the relationship generally. The contract of employment is relevant, and there is a matter relating to an individual contract of employment, only if the employer is seeking to rely on that contract of employment in order to bring his claim against the employee.
 I can see no justification of policy for conspirators, or any other tortfeasors, who are employees of the claimant being given jurisdictional advantages not enjoyed by conspirators or other tortfeasors who are not employees of the claimant. I accept Mr Jory's submission that section 5 is limited to claims in contract. Article 5 of the Brussels Regulation draws a distinction between "matters relating to a contract" and "matters relating to tort" and the heading of section 5 is "Jurisdiction over individual contracts of employment".
 Accordingly, in my view the phrase "in matters relating to individual contracts of employment" effectively means "where claims are made under individual contracts of employment". If a claimant brings to the court a claim against a defendant who is or was his employee which is made independently of the contract of employment, prima facie he should be permitted to bring it in that court if the court would have jurisdiction over that claim if the defendant was not the claimant's employer. If an employer sought to dress up a claim under an employment contract as one not made under such a contract no doubt the courts would be astute to prevent him. But that is not this case. To interpret the phrase in this way provides a clear test and leads to high predictability regarding jurisdiction."
"The contract of employment is relevant, and there is a matter relating to an individual contract of employment only if the employer is seeking to rely on that contract of employment in order to bring his claim against the employer" (emphasis added).
In other words it comes down to a matter of pleading. If the employer can frame a claim without relying on the contract of employment, any such claim need not be brought in the country of the employee's domicile.
"where claims are made under individual contracts of employment."
If by that the learned mercantile judge is drawing a distinction between claims made "under" the contract and claims "arising out of" or "in connection with" the contract, that is a distinction which has become impermissible at any rate as a matter of English law since Fiona Trust and Holding Corp v Privalov  Bus LR 1719.
"Do the claims made against an employee relate to the individual's contract of employment?"
"5. Care for the good of [WSK], protect its property and keep secret information whose disclosure could expose [WSK] to a possible loss."
For good measure General Provision No. 25 provided:-
"It is also not permitted to remove from [WSK] objects and documents intended for official use without authorisation from the authorised head of departments or a permit for the use of materials."
No doubt these provisions only make explicit what would anyway be implicit in Mr Jasikowski's contract of employment as part of his implied obligation of fidelity to his employer.
"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 it is expedient to hear and to determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."
The judgment of the Court of Justice (Third Chamber) in Painer v Standard Verlags GmbH & ors (C – 145/10) contains, at paragraphs 74 to 84, a useful summary of the jurisprudence on Article 6.1. In particular, it is clear that the invocation of this exception to the requirement to sue a defendant where he is domiciled does not require it to be shown that the case against him and the other defendants has the same legal basis, if there is a sufficiently close factual connection between those claims to give rise to a sufficient risk of irreconcilable judgments if pursued in separate Member States.
Lord Justice Davis: