Oktoberfest jurisdiction torpedo defused

We previously blogged about Master Davison’s unusual decision in Jamieson v Wurttemburgische Versicherung AG & Anor [2021] EWHC 178 (QB) to make a request under art. 29(2) of Brussels I (Recast) to the Munich Regional Court to inform him of the date when it was seised or deemed seised of a claim for a negative declaration of liability brought against a Claimant who had been hit by a taxi at the Oktoberfest in Munich.

The background and facts are set out in our previous blog. The Claimant was again represented by Harry Steinberg QC, the First Defendant by Sarah Crowther QC, and the Second Defendant by Richard Viney.

On 28 April 2021, having heard back from his counterpart in Germany, the Master dismissed the Defendants’ applications for the court to decline jurisdiction. The stay was lifted and the litigation will progress in England. A link to the new decision is here.

Judge Sabine Rübner, the Presiding Judge of the German court, responded to Master Davison’s request as follows:

Pursuant to Article 32(1)(a) of the Brussels Regulation (Recast) the Regional Court Munich I is considered seised on 13 June 2018.

As to the potential impact of a later decision of the German appeal court, Judge Rübner said this:

The view of the Regional Court as to the date of seisin remains valid. The ruling of the Munich Higher Regional Court of 14 December 2020 made no findings to the contrary in this regard.

The unequivocal response made things difficult for the Defendants:

As Ms Crowther QC for the first defendant (“the insurers”) acknowledged, the response to the question as to date of seisin is clear and unequivocal.  The response clearly states that the date that the German court was deemed seised was 13 June 2018.  That date was after the English action was commenced and it follows that it was the English court that was first seised.

However, the Defendants argued that Judge Rübner “had simply got it wrong” in terms of her reasoning for finding this date of seisin. They asked Master Davison to send a request for clarification. He was unimpressed:

There is no ambiguity at all in the response of Judge Rübner.  It is not permissible for me to question the reasoning that lies behind the response. If there had been a total absence of reasoning, it would not have been permissible for me to question that either. I do not sit as a Court of Appeal from Judge Rübner and for me to challenge or debate her reasoning would be a breach of the principles of comity. The mechanism in Article 29(2) is for a question and an answer and not (as Mr Steinberg QC for the claimant pithily put it) a dialogue. The words “without delay” in Article 29(2) do not encourage a dialogue.  Whilst there may be cases where to seek clarification would be appropriate, this is not one of them. The clarification which Ms Crowther invited me to seek would, in reality, be simply argumentative. What she and her clients want is not a clearer answer, but a different one.

This conclusion meant that the ongoing proceedings in Germany were now probably redundant. But, in any event:

it is clear that the direction of travel of the German court is to terminate the German proceedings in favour of the English ones.  In view of the conduct of the insurers, which reflects little credit upon them, that result does not seem unjust.

As far as the Master was concerned, this was also the just result:

Although the issue before me is not strictly a matter of judicial discretion, I add that if I were not to “grasp the nettle” and lift the stay, I would be condemning the claimant to many months, (perhaps years), of delay, expense and uncertainty. Conversely, the insurers are not significantly disadvantaged by the lifting of the stay in this country. To the extent that they would wish to have a definitive ruling on the propriety of so-called ‘torpedo’ claims, they can and should seek such a ruling in a case where the German courts were indisputably first seised.

The Defendants’ request for permission to appeal was refused at the hearing:

The only error of approach that I was said, arguably, to have made was to have acted upon Judge Rübner’s response to the Article 29(2) request without questioning her reasons. No authority was offered for the proposition that this was the wrong approach and considerations of comity and practicality and the interpretation of Article 29 itself all pointed in the opposite direction. It must, in those circumstances, be for the defendants to persuade an appellate court that there is a real prospect of success on appeal.

We await any further developments in the litigation with interest.

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