Lloyd's Maritime and Commercial Law Quarterly
RÉUNION REVISED?
Freeport v. Arnoldsson
When a claimant sues a Community domiciled defendant in his domicile, Art 6(1) of the Judgments Regulation1
allows him to join connected claims against other Community domiciled defendants. In Réunion Européenne SA
v. Spliethoff’s Bevrachtingskantoor BV
,2
the ECJ observed that:
two claims in one action for compensation, directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict cannot be regarded as connected.
Many understood the passage to define the connection between claims that Art 6(1) requires. Few thought the definition to be a good thing.3
In Watson
v. First Choice Holidays and Flights Ltd
,4
the Court of Appeal was sufficiently alarmed to ask the ECJ whether it meant what it said. Others put it more bluntly: “if the [ECJ’s] intention was to lay down a general principle applicable to art. 6.1, it is simply wrong.”5
In Freeport Plc
v. Arnoldsson
,6
the ECJ clarified both Réunion Européenne
’s meaning and the conditions to which Art 6(1) is subject.
Freeport Plc, a UK company, acquired a retail development in Sweden. It undertook to pay Mr Arnoldsson £500,000 when the site opened, the sum to be paid by whoever was owner at that time. When the development opened, its owner was Freeport AB, a Swedish subsidiary of Freeport Plc incorporated after the agreement with Mr Arnoldsson was concluded. Payment being unforthcoming, Mr Arnoldsson commenced Swedish proceedings. He sued in Freeport AB’s domicile, joining Freeport Plc on the basis of Art 6(1). Freeport Plc objected to Art 6(1)’s application on two grounds: first, that the claims against each defendant had a different legal base and therefore were unconnected; and
1. Council Regulation (EC) 44/2001 of 22 December 2000.
2. (Case C-51/97)
[1998] I ECR 6511, [50] noted by A Briggs, [1999] LMCLQ 333; H Gaudemet-Tallon, (1999) 88 Revue Critique de Droit International Privé
333.
3. Eg, see A Briggs and P Rees (ed), Civil Jurisdiction and Judgments
, 4th edn (London, 2004) (hereafter “Briggs & Rees”), [2.175].
4. [2001] EWCA Civ 972; [2001] 2 Lloyd’s Rep 339, [28–40]; the case settled before the questions referred were answered. Cf Casio
v. Sayo
[2001] ILPr 43, [33]; ET Plus SA
v. Welter
[2005] EWHC 2115 (Comm); [2006] 1 Lloyd’s Rep 251, [59]. For the different approaches of the civil and commercial chambers of the French Cour de Cassation, see (2003) 92 Revue Critique de Droit International Privé
127.
5. Andrew Weir Shipping Ltd
v. Wartsila UK Ltd
[2004] EWHC 1284 (Comm); [2004] 2 Lloyd’s Rep 377, [69], per
Cooke J, where the critical observations of Briggs & Rees, [2.175] were endorsed.
6. (Case C-98/06)
(11 October 2007) (ECJ, Third Chamber).
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