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 law.
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