The claimant brought a claim against his employer (the first
defendant) in breach of statutory duty and negligence for failure to provide
and maintain a safe system of work, and on the basis that the Bobcat machine
was defective. He did not seek to
formulate his claim in contract. The claim against the Belgian defendants was
based on relevant provisions of the Belgian Civil Code, and Belgian statute
The Belgian defendants queried the evidence put forward by the
claimant to show that he was in the employment of the first defendant, and
questioned whether a contractual relationship existed between the claimant and
the Belgian defendants. The court concluded that the claimant had a stronger
argument to say that he was employed by the company domiciled in England and
Wales, and that the Belgian defendants did not exercise sufficient control over
the claimant’s work to be considered joint employers.
The Belgian defendants argued that the court lacked jurisdiction
because there was no risk of irreconcilable judgments, so that Regulation
44/2001 art 6(1) did not apply and art 2 did, meaning that the court lacked
jurisdiction. Further the existence of a contractual relationship between them
and the claimant engaged art 18 and 19 in respect of employment contracts which
ousted both art 6 and art 2.
The court considered the relevant jurisprudence from the
European Court of Justice and domestic decisions. It concluded that art 18 and 19 did not have
any application to the claim against the Belgian defendants because no relevant
contract existed. It further concluded
that there was a risk of irreconcilable judgments where separate proceedings
might have been allowed, because the same facts were being decided upon, and
therefore Article 6(1) did apply.
Justice Jay determined that when considering whether there was a
risk of irreconcilable judgments he would be “guided by the broad common sense
approach, eschewing over-sophisticated analysis”. This is worth bearing in mind when faced with
situations where Article 6(1) might be engaged.
Adam Dyl & Hannah Swarbrick, Anthony Gold