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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Alfa Laval Tumba AB & Anor v Separator Spares International Ltd & Anor [2012] EWHC 1155 (Ch) (04 May 2012) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2012/1155.html Cite as: [2012] EWHC 1155 (Ch) |
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2012] EWHC 1155 ( Ch) | ||
CHANCERY
DIVISION
Strand, London, WC2A 2LL |
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2012 |
B e f o r e :
____________________
| (1) ALFA LAVAL TUMBA AB (2) ALFA LAVAL KRAKOW Sp. zo.o. (Formerly WYTWÓRNIA SEPARATOR KRAKÓW Sp.zo.o) |
Claimants |
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| - and - |
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| (1) SEPARATOR SPARES INTERNATIONAL LTD (in liquidation) (2) MARK RICHARD HARDWICK PACY |
Defendants |
____________________
Mr James St Ville (instructed by Adams Solicitors) for the Defendants
Hearing dates: 20 and 23 April
2012
____________________
Crown Copyright ©
Mr Justice Briggs :
Introduction
The Alleged Facts
cheaply
and to a higher quality by the obtaining of Alfa Laval's own design drawings, and the use of those drawings for the purpose of manufacture. Since they entertained no expectation that the claimants would make those drawings available on attractive terms, if at all, Mr Pacy and Mr Jasikowski resolved to obtain them covertly and unlawfully, by bribing a WSK employee in its drawings office (referred to in the proceedings as a Mr X since his identity has never been revealed) to make copies of the drawings available, usually in electronic form, to Mr Jasikowski, with a view to his transmitting them to Mr Pacy at SSI's premises in the Isle of Wight. There it was planned that the drawings would be copied and re-branded so as to appear to be SSI drawings, before being used in commissioning sub-contractors in various locations around the world to manufacture and supply spare parts to SSI's order.
challenge
to the claimants' factual case. In April 2009 Mr Pacy received a suspended sentence of committal for breach of the search order. In May SSI was placed into creditors' voluntary liquidation.
Causes of Action
challenge
to an assertion of jurisdiction under the Judgments Regulation is equally applicable where some aspect of that
challenge,
as here, involves a consideration of the applicable law. I make that assumption, in the absence of submissions from counsel either way, notwithstanding that it imposes a higher burden on the claimants than that which would be necessary to establish, in order to resist an ordinary application to strike out a claim, or for defendant's summary judgment.
2012]
EWHC
790 (Pat), at paragraph 102. Secondly relying on the Court of Appeal's guarded approval of the analysis in Dicey & Morris on Conflict Laws (13th Edition) (2000) Vol 2 at paras 34 – 029 ff, in Douglas v Hello! Ltd (No 3) [2006] QB 125, at paragraph 97, he submitted that the applicable law in relation to a claim for breach of confidence is, on restitutionary principles, the law of the country where the unjust enrichment occurred. Thirdly, he submitted that, in relation to events on and after 11 January 2009, the Rome II Regulation provides, at Article 4, a general rule applicable (inter alia) to breach of confidence that the applicable law is that of the country in which the damage occurs, unless some manifestly closer connection with another country is established pursuant to Article 4.3: see again the Innovia case at paragraphs 109 to 111, where that analysis was treated as common ground.
challenge
to Mr St Ville's exposition of the relevant legal principles. His submission was that the applicable law had to be identified from the starting point of a recognition that the misconduct alleged was that of four perpetrators of a common design (namely the English defendants and the Polish respondents) which had as its objective the creation at SSI's premises in the Isle of Wight of a complete set of rebranded Alfa Laval drawings of spare parts for its marine separators, for the purpose of conducting a competing spare parts business worldwide, but based at least initially in England. England was therefore the place where the unlawful combination was centred, where both the unjust enrichment and the damage occurred, and English law had the closest connection with the rights arising from the matters complained of. Central to Mr Baldwin's analysis was his assertion that the Polish respondents, as joint participants with the English defendants in a common design, were liable just as much for those parts of the planning and implementation of the unlawful scheme that took place in England, as for their individual acts of participation in Poland.
choose
finally between them while the facts remain to be established at trial. In my judgment the claimants have, on the materials presently available, a good arguable case for establishing that English law is applicable to the claim against both the English defendants and the Polish respondents collectively, as parties to a single common design. I am fortified in that conclusion by the tendency, eventually acknowledged by Mr St Ville, of his analysis to lead to the result that a different law would be applicable to the English and Polish participants in the common design, an outcome which strikes me as lacking in commonsense. Mr St Ville's alternative and, in my view, equally unattractive solution was to submit that the Polish respondents should be judged by Polish law in relation to that which they did personally, even if by English law in relation to the acts of the English defendants for which he accepted (on the case advanced) that they had a form of accessory liability.
Jurisdiction
Section 5
"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."
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" meant only where claims were made under individual contracts of employment.
"The fact that the defendant was an employee was not legally relevant to the conspiracy claim which was not a contractual claim at all. So the decision in this case is readily understandable, but again I do not think it sheds any real light on our case."
Article 6.1
"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 recent 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.
"However, that is not the result of the application of Article 28 in the present matter because its effect is not entirely mechanical. It requires an assessment of the degree of connection, and then a value judgment as to the expediency of hearing the two actions together (assuming they could be so heard) in order to avoid the risk of inconsistent judgments. It does not say that any possibility of inconsistent judgments means that they are inevitably related. It seems that the Article leaves it open to a court to acknowledge a connection, or a risk of inconsistent judgments, but to say that a connection is not sufficiently close, or the risk is not sufficiently great, to make the actions related for the purpose of the article. Mechanics do not, for once, provide a complete answer."
Article 5.3
Limitation
Discretion
Conclusion