ON APPEAL FROM CHANCERY DIVISION
MR JUSTICE LEWISON
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE CARNWATH
LORD JUSTICE NEUBERGER
and
SIR WILLIAM ALDOUS
Between :
(1) SPEED INVESTMENTS LIMITED (2) SLEC HOLDINGS LMITED | Claimants/ Respondents |
- and - | |
(1) FORMULA ONE HOLDINGS LIMITED (2) BAMBINO HOLDINGS LIMITED (3) LUC ARGAND (4)EMMANUELE ARGAND-REY | Defendants/ Appellants |
(Transcript of the Handed Down Judgment of
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Elizabeth Jones QC and Nicholas Harrison (instructed by White and Case) for the Claimants/Respondents
Murray Rosen QC and Nick Parfitt (instructed by Lovells) for the Defendants/Appellants
Judgment
Lord Justice Carnwath:
This is an appeal from an order of Lewison J. The overall dispute concerns the control and future of Formula One racing. The immediate issue is much narrower, involving a dispute as to the validity of appointments of directors to one of the companies. As a preliminary even to that dispute, there is disagreement as to whether the English court has jurisdiction in the matter. This turns on the interpretation of Council Regulation (EC) No 44/2001 (the "Judgments Regulation"); and the “Lugano Convention” (incorporated into domestic law by Section 3A of the Civil Jurisdiction and Judgments Act 1982).
Background
The following summary is taken from the judgment below, and is sufficient for present purposes.
Formula One motor racing is controlled by a number of companies within the Formula One Group. The principal companies are Formula One Administration Limited and Formula One Management Limited. Another company called Formula One Holdings Limited (“FOH”) is the parent or great-grandparent of both.
FOH is in turn owned by SLEC Holdings Limited (“SLEC”). SLEC is owned 75 per cent by Speed Investments Limited (“Speed”), and 25 per cent by Bambino Holdings Limited (“Bambino”). Speed is in turn owned in varying proportions by three banks.
Speed, Bambino, FOH and others are all parties to an agreement called the SLEC Shareholders Agreement, made on 12th May 2000. By Clause 30 of the SLEC agreement, although the governing law is English law, the parties submit to “the exclusive jurisdiction of the courts of Geneva Switzerland”. However, it is common ground that this may be displaced, if they apply, by the exclusive jurisdiction provisions of the Judgments Regulation or the Lugano Convention.
Clause 3.2 provided that the maximum number of directors of FOH should be eight and that FOH should permit the holders of a majority in nominal value of the A shares as defined to appoint four persons to be directors of FOH. It further provided that FOH should permit the holders of a majority in nominal value of the B shares to appoint four persons to be directors of FOH.
Clause 3.3 contained covenants by SLEC and FOH to procure:
"(A) The holders of a majority in nominal value of the A shares should be permitted to appoint a director to each of the subsidiaries, the ("A subsidiary directors");
(B) The holders of a majority in nominal value of the B shares should be permitted to appoint two directors of each of the subsidiaries, the ("B subsidiary directors"); and.
(C) The subsidiary directors are sent at the same time as the other directors of the relevant subsidiary notice of any meeting of the directors of such subsidiary and a copy of all papers sent to such directors."
Clause 3.6 amplified the provisions relating to the appointment of directors in the event that an option was exercised. Clause 5 provided that immediately following the execution of the agreements, the shareholders should procure the passing of resolutions, adopting new articles of association of, among other companies, FOH. Those articles of association were duly adopted.
By clause 4 of the agreement, Bambino covenanted and undertook to Speed that the details set out in parts 1 and 2 of schedule 1 were in all respects true, complete and accurate. The details set out in part 2 of schedule 1 included a list of directors of FOH in which Messrs Bernard Ecclestone and Stephen Mullens were described as B-directors.
The immediate cause of the proceedings was the appointment on 7th October 2002 by Bambino of the third and fourth defendants, the Argands, as directors of FOH. The claimants say that Bambino was not entitled to appoint the Argands, because it had exhausted its rights of appointment; Messrs Ecclestone and Mullens were B-directors of FOH. Bambino and the Argands say that the Argands were validly appointed because Messrs Ecclestone and Mullens were not B-directors; they were appointed as ordinary directors and remained ordinary directors, despite the provisions of the SLEC Shareholders Agreement, which mistakenly described them as B directors.
The present appeal is concerned solely with jurisdiction. The claimants say the dispute as to the validity of the appointments must be determined by the English court. The judge agreed with them. Bambino and the Argands appeal. FOH itself was the first defendant, but it has taken no active part in the proceedings.
Competing jurisdictions
9. FOH is a company registered in England and Wales. The two claimants, Speed and SLEC are both Jersey companies. Bambino, the second defendant, is another Jersey company. The Argands are individuals domiciled in Switzerland. Jersey is not a part of the United Kingdom, either for the purpose of the Judgments Regulation or for the purposes of the Lugano Convention. Switzerland is not a member state of the European Union, but it is a contracting state for the purposes of the Lugano Convention.
It is common ground that in respect of Bambino, not being domiciled in a member state, the issue turns on Article 22 of the Judgments Regulation (applied by Article 4). Article 22 comes under Section 6 of the Regulation (headed “Exclusive jurisdiction”). It provides, so far as relevant:
"The following court shall have exclusive jurisdiction regardless of domicile.
"2. In proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the member state in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law.
"3. In proceedings which have as their object the validity of entries in public registers, the courts of the member state in which the register is kept." (emphasis added)
The position of the Argands, as Swiss citizens, is governed by the Lugano Convention, but Article 16 of the Lugano Convention (which in this case comes under Section 5) is for practical purposes in the same terms as Article 22 of the Judgments Regulation. FOH was incorporated in England, and accordingly has its “seat” in the United Kingdom under s.43 of the Civil Jurisdiction and Judgments Act 1982 (for the purpose of the Lugano Convention) and under the Civil Jurisdiction and Judgments Order 2001 schedule 1 para 10 (for the purpose of the Regulation).
Thus, the main issue in the case turns on the true interpretation of the italicised words in Article 16.2. (Both sides, as I understood it, treated the issue under Article 16.3 as standing or falling with that under 16.3). I shall call this the “exclusive jurisdiction” issue.
As a separate point (the “stay” issue), the Argands (but not Bambino) rely on Article 21 of the Lugano Convention. That provides:
"Where proceedings involving the same cause of action and between the same parties are brought in the courts of different contracting states, any court other than the court first seised shall of its own notion stay its proceedings until such time as the jurisdiction of the court first seised is established. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court." (emphasis added)
Also relevant to this issue are Article 23 of the Lugano Convention, which provides:
“Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court”
and Article 28, which provides that “a judgment shall not be recognised” if it conflicts with (among others) Section 5 of that Convention (which includes Article 16).
The Argands submit that the Swiss court was the court “first seised” of the action as against them, and that accordingly there is a mandatory requirement under Article 21 for the English court to stay the proceedings at this stage. This applies, they say, even if it is ultimately determined that the English court has “exclusive jurisdiction” under Article 16. The judge rejected this submission.
As a separate point, the claimants claim that Article 21 has no application in any event, because the Swiss court was not “first seised” in the sense required by the Article (the “first seised” issue).
Particulars of claim
Since both parties rely on the terms of the pleaded case as supporting their respective contentions, I should set out the material parts.
The relevant allegations begin at paragraph 32, which reads:
"32. On 7th October 2002, Bambino purported to appoint Monsieur Argand and Madame Argand-Rey as B-directors of FOH pursuant to Article 14 (A) of the new FOH articles.
33. Bambino was not entitled to appoint Monsieur Argand and Madame Argand-Rey as B-directors of FOH because Bambino had already exhausted its rights to appoint B-directors under the new FOH articles. Alternatively, Bambino is estopped from denying that it had already exhausted its right to appoint B-directors under the new FOH articles. The claimants will say as follows:
33.1. In connection with the purchase of Speed by EM.TV and the acquisition of shares in SLEC by Speed in accordance with the master agreement, the directors of FOH appointed prior to 12th May 2000 were agreed by SLEC, FOH, Bambino and Speed to be designated A-directors and B-directors respectively in accordance with the new FOH articles adopted on the same day, as evidenced by the description of such persons as A-directors and B-directors in schedule 1, part 2 of the SLEC Shareholders Agreement.
33.2. Further or alternatively, by including schedule 1, part 2 of the SLEC Shareholders Agreement, each of the parties to the SLEC Shareholders Agreement represented to the others that they would treat the persons set out in the said schedule as A and B-directors respectively as having been appointed A and B-directors in accordance with the new FOH articles.
33.3. Further or alternatively, by the SLEC Shareholders Agreement, Bambino contracted with Speed, SLEC and FOH that the persons described as B-directors of FOH in schedule 1, part 2 of the SLEC Shareholders Agreement should be deemed to be appointed as such B-directors of FOH in accordance with the new FOH articles. The claimants will refer to clause 4 (A) of the SLEC Shareholders Agreement.
33.4. Further or alternatively, SLEC and Bambino have thereafter conducted themselves on the basis that and in reliance on the representation pleaded in paragraph 33.2 above, that the persons set out in schedule 1, part 2 of the SLEC Shareholders Agreement as A and B-directors respectively were appointed as A-directors by Speed and as B-directors by Bambino respectively. Paragraph 27 above is repeated.
34. In the premises, Monsieur Argand and Madame Argand-Rey have not been appointed as directors of FOH
…
37. On 11th November 2002, SLEC as sole shareholder in FOH appointed Mr Diederichs and Mr Mann as directors of FOH, not being A-directors or B-directors. Bambino and the secretary of FOH have refused to recognise the appointment of Mr Diederichs and Mr Mann on the basis that there were no vacancies of the board of directors because Bambino and the secretary of FOH contend that Monsieur Argand and Madame Argand-Rey were validly appointed.
…
41. A dispute has arisen between FOH, SLEC, Speed and Bambino as to who are the directors of FOH. The register of directors maintained by FOH pursuant to Section 288 of the Companies Act 1985 records Monsieur Argand and Madame Argand-Rey as directors of FOH and does not record Mr Diederichs and Mr Mann as directors of FOH. The entry of the names of Monsieur Argand and Madame Argand-Rey in the said register is invalid and FOH is obliged to include particulars of Mr Diederichs and Mr Mann in the said register.
42. The accounts of FOH for the year ended 31st December 2002 were due to be filed at Companies House by 31st October 2003. By reason of the dispute between FOH, SLEC, Speed and Bambino as to the identity of the directors of FOH, substantial difficulties were encountered in approving and filing the said accounts. It was not possible to call a meeting of the board of directors because of the dispute as to who had been validly appointed directors of FOH."
The relief claimed in the action is as follows:
"1. A claim for declarations as to the identity of the directors of the first defendant.
2. A claim for rectification of invalid entries in the register of directors of the first defendant.
3. A claim for a declaration as to the validity of a written resolution of the board of directors of the first defendant."
Exclusive jurisdiction
The judge concluded on this issue:
“In my judgment, the subject matter of the English proceedings is the composition of the board of directors of Formula One Holdings and therefore it does fall within Article 22(2). The claim to rectify the register of directors, in my judgment, falls within Article 22(3).” (para 38)
He relied on a passage of a judgment of this court on Article 16 of the Brussels Convention, in Grupo Torras v Al-Sabah [1996] 1 LlLR7,15. That Convention was the predecessor of the Judgments Regulation, and Article 16.2 was in substantially the same terms as Article 22 of the Regulation and Article 16 of the Lugano Convention. The leading judgment was given by Stuart-Smith LJ. He recorded that, according to the authorities, “proceedings which have as their object” meant “proceedings which have as their subject-matter” or “proceedings which are principally concerned with”. He noted that the correct approach to interpretation of the Convention was “purposive rather than textual”. He continued:
"The paragraphs of Article 16 constitute a series of exceptions to the basic jurisdictional rules established by the Convention. The objective of Article 16(2) is to confer exclusive jurisdiction to decide questions concerning the constitution and internal management of a company on the courts of a contracting state in which the company has its seat. It is generally accepted as a matter of private international law that the law of the place of incorporation determines the capacity of the company, the composition and powers of the various organs of the company, the formalities and procedures laid down for them, the extent of an individual member's liability for the debts and liabilities of the company, and other matters of that kind. The objective of Article 16(2) is to confer exclusive jurisdiction to determine all such questions on the courts of the state where the company has its seat. The other paragraphs of the Article follow a similar logic.
The appellants submit that Article 16(2) governs all questions which are concerned with the internal management of the company and that this extends to all disputes which arise out of the relationship between a company and its officers or shareholders or between its shareholders and officers, possibly even between its shareholders inter se. This submission is far too wide. Whether an action falls within Article 16(2) depends upon its subject matter - the nature of the dispute - not upon the relationship between the parties. A claim by an officer of a company for wrongful dismissal, for example, does not fall within the Article, although a claim that the decision to dismiss him had been taken by a meeting of the board which was inquorate would do so." (emphasis added)
On the facts of that case, it was held that the subject matter of the dispute (which was an alleged fraud practised by the defendants) fell outside Article 16(2).
Reading that explanation literally, and taking a simple view of the present dispute, it seems to me to fall clearly within the Article. It is a dispute about the composition of the Board of FOH. Thus the “subject matter” of the dispute is a “question concerning the internal management of the company”, or, more specifically, concerning the “composition of… (one of the) organs of the company”. It also accords with practical convenience, and with the reasonable expectations of those involved, that issues of internal management such as arise in this case (who should be admitted to Board meetings? who should approve the accounts? who should be on the register of directors?) should be decided in the courts in which the company has its seat.
It is true that this interpretation involves some expansion of the language of the Article. The issue is not, strictly, “the validity” of the constitution, or of any actual board decisions. However, determining the composition of the Board is clearly essential for the validity of future decisions. Stuart-Smith LJ regarded that as within the purpose of the provision. It is also consistent with the objective, which he identified, of assimilating the jurisdiction under the Convention rules to choice-of-law principles of private international law. Thus, Dicey and Morris, Conflict of Laws 13th Ed, gives the following rule:
“Rule 154(2) All matters concerning the constitution of a corporation are governed by the law of the place of incorporation.”
The supporting text (under the heading “Internal management”) states:
“The cases at least establish that the law of the place of incorporation determines whether directors have been validly appointed…”
(emphasis added; the footnote cites Sierra Leone Telecommunications Ltd v Barclays Bank plc [1998] 2 All ER 821.)
That sentence encapsulates the issue in this case.
Reference may also be made to the commentary in Professor Jenard’s authoritative report (cited by Knox J in Newtherapeutics v Katz [1991] Ch 226, 245):
“Article 16(2) provides that the courts of the state in which a company or other legal person, or an association of natural or legal persons, has its seat, have exclusive jurisdiction in proceedings which are in substance concerned either with the validity of the constitution, the nullity or the dissolution of the company, legal person or association, or with the decisions of its organs. It is important, in the interests of legal certainty, to avoid conflicting judgments being given as regards the existence of a company or association or as regards the validity of the decisions of its organs. For this reason, it is obviously preferable that all proceedings should take place in the courts of the state in which the company or association has its seat.” (para A1.158, emphasis added)
Consistency will be achieved if the same court has jurisdiction to decide on the validity of both past and future decisions.
Mr Rosen, for the appellants, challenges that approach. He relies on the summary of “relevant factors” by Jonathan Parker LJ in Ashurst v Pollard [2001] Ch 595 para 53; in particular, the need to give the Article a “restrictive” interpretation, and to distinguish “subject-matter” from “aim” or “purpose”. On that basis, he submits, the real subject-matter of the dispute is the effect of the share-holders’ agreement, which is the essential foundation of the claimants’ pleaded case. The results, in terms of the composition of the Board, and the amendments to the register, are purely consequential.
The reference to a “restrictive interpretation” must be read in context. The accompanying reference is to Reichert’s case [1990] I-27. Earlier in his judgment, Jonathan Parker LJ quotes from the judgment of the ECJ in that case (para 8, 9, 11), including the following:
“Secondly, as the court has already held, article 16 must not be given a wider interpretation than is required by its objective, since it results in depriving the parties of the choice of forum which would otherwise be theirs and, in certain cases, results in their being brought before a court which is not that of any of them…”
As I have said, the judge’s approach is fully justified by the objectives of the article as explained by Stuart-Smith LJ, and is consistent with the reasonable expectations of those involved.
I agree that that the interpretation and effect of the share-holders’ agreement are central to the issues in the case. To this extent the subject-matter is not confined to the “constitution” of the company in its narrowest sense – that is, the memorandum and articles. As paragraphs 33 to 34 of the pleaded case demonstrate, the claimants rely in terms on the agreement to support their case that the Argands have not been validly appointed. I am not greatly attracted by Miss Jones’ attempt to rely on a technical distinction between the contractual effect of the agreement, and the company law issues relating to the articles. In the present case, as her own pleading shows, that seems to me an unreal distinction.
On the other hand, I am unable to accept that, merely because the main area of live dispute may be as to the effect of the agreement, rather than of the articles, it ceases to be within Article 16(2). If, as I think, the real subject-matter of the dispute is the composition of the Board, it does not matter that the answer may require one to look beyond the strict limits of the company’s constitution, in the technical sense. Nor would it be realistic to allow questions of “exclusive jurisdiction” in relation to such a dispute to depend on which particular aspects of the case are contentious at any particular time (a matter which may vary as the pleadings and the respective cases evolve.)
In my view this result is consistent with Ashurst v Pollard, to which I have already referred. The question was whether the trustee in bankruptcy of an English bankrupt, who owned land in Portugal, could seek in the English courts an order for sale of that property. Article 16(1) of the Brussels Convention gave exclusive jurisdiction to the Portuguese courts in proceedings “which have as their object rights in rem” in immoveable property in that country. It was held that this was a personal dispute between the trustee and the husband and wife, and it was not within the article.
Mr Rosen relies on that case as showing that the nature of the remedy sought in the proceedings is not necessarily characteristic of the dispute. Although the trustee was ultimately seeking a sale of land in Portugal, the underlying issue was a personal one between the trustee and the defendants. So here, the objective may be to determine the composition of the Board; but the underlying issue is a contractual one, between the parties to the agreement.
As I read it, the decision in Ashurst v Pollard turned on the special nature of the case, in which, as Jonathan Parker LJ said, there was no issue as to title to land:
“The trustee… is not seeking to establish or protect, let alone, perfect, his title to Mr Pollard’s interest in the Portuguese property.” (para 60)
He approved, but distinguished, the decision of Rattee J, in Re Hayward, decd [1997] Ch 45. In that case, a bankrupt’s wife had purported to transfer his interest in a Minorca property to a creditor; the trustee was seeking an order that it formed part of the bankrupt’s estate, and for consequent rectification of the Minorca property register. It was held that this was outside the jurisdiction of the English court, because the principal subject-matter of the proceedings was the ownership of the Minorca property.
This contrast shows how difficult it may be in some cases to draw a clear line. I would in any event be cautious in seeking too close a parallel between the two parts of the article. Different considerations lie behind the special status given by the law of conflicts, respectively, to immoveable property and to issue of internal company management. In the present case, for the reasons I have given the mere fact that there appears to be no live issue of English company law, does not change the fact that the subject-matter is the composition of one of the main organs of the company, and therefore (at least prospectively) the validity of decisions of the company. Accordingly, the judge was correct to hold that the English court had jurisdiction.
The “stay” issue
The assumed background to this issue is that, although the current proceedings were issued in this country on 1st March 2004, they were not served on the Argands until 19th March 2004. This was after proceedings had been commenced by Bambino in Geneva (on 15th March 2004), confirming the validity of their appointments. On the basis of Dresser UK Ltd v Falcongate Freight Management Ltd [1992] QB 502, it followed that the Swiss court was “first seised”. In these circumstances, argues Mr Rosen, Article 21 of the Lugano Convention is mandatory: any other court “shall of its own motion stay its proceedings…” until the Geneva court has ruled as to jurisdiction. The judge decided the issue in favour of the claimants.
Mr Rosen does not, as I understand him, suggest that such a stay would serve any practical purpose. nor that it will decide the matter more expeditiously. On the contrary, he accepts that the grant of a stay will result in the loss of the date currently fixed for consideration of this issue by the English court.
He is also unable to point to any support for his submission, either in previous authority or in academic writings. By contrast, there is powerful academic and other support for the contrary view that Article 16 constitutes an implied derogation from the mandatory requirements of Article 21. The relevant material is reviewed in detail in the judgment, and I can therefore summarise it briefly:
There are two relevant decisions of the European Court of Justice: Overseas Union Insurance v New Hampshire [1992] 1 QB 434, and Eric Gasser v MISAT [2004] 1 LlLR 222. Neither decided the matter. In the first the court left open the possibility that Article 21 of the Brussels Convention (equivalent to Article 21 of the Lugano Convention) might not apply where the second seised court had exclusive jurisdiction. The second concerned the relationship of Article 21 with Article 17 (choice of law), where the court held that no derogation was permitted. The Court recorded without dissent the submission of the Commission, distinguishing this from its view of the position under Article 16.
Professor Kay, in "Civil Jurisdiction and Enforcement of Foreign Judgments" (1987) at p 1222, supports the case for implied derogation:
“where the second seised court has exclusive jurisdiction under Article 16 and the first seised court non-exclusive jurisdiction, then according to the spirit and policy of the Convention, Article 21 is inapplicable in the second seised court and the latter need not therefore decline to adjudicate.”
The main reason he gives is that –
“the first seised court's judgment will not be entitled to recognition in other contracting states… and consequently, community-wide recognition will not be required to be given to two possibly conflicting judgments…”
Dicey and Morris (op cit at para 12-043) is to similar effect:
"… Article 21 should be inapplicable where the court seised second has exclusive jurisdiction under Article 16, for a judgment given by the court seised first in violation of Article 16 will be refused recognition in all contracting states and there is no sensible purpose in deferring to a court whose judgment will be a nullity in England…”
Lastly, in Briggs and Rees, Civil Jurisdictions and Judgments 3rd ed (2002), para 2.08, it is suggested that, if the English court has exclusive jurisdiction under Article 16, it may exercise it without “further inquiry”. Footnote 47 notes that this point was left open in Overseas Union, but “is probably correct”, adding -
“If a court gives judgment in violation of article 23, its judgment must not be recognised…. It appears to follow that the court with article 23 jurisdiction should proceed to hear the case, for otherwise there will be no judgment on the merits capable of being recognised in other member states.”
Although the judge found the arguments “finely-balanced”, I have no doubt that his conclusion was correct. Even without this authoritative academic support, I would have found little difficulty, adopting a purposive approach, in reaching a conclusion which accords to the common sense of the case. The alternative view serves no purpose, but to increase delay and expense.
First seised
This conclusion makes it unnecessary to consider Miss Jones’s alternative argument, that the Geneva court was not in fact “first seised” of the matter. This involves the submission that we should reject the powerful view adopted by this court in Dresser UK v Falcongate [1992] QB 502, in respect of the equivalent provision of the Brussels Convention. The basis of that submission is that, in that context, Dresser has been superseded by the more specific definition of “first seised” in the Judgments Regulation. Although the Lugano Convention has not yet been amended to the same effect, it is suggested that, by some process of judicial activism, we should interpret it in the same way. Beyond admiring the boldness of that submission, I prefer to express no view.
Conclusion
For these reasons, which are substantially the same as those of the judge, I would dismiss this appeal.
Lord Justice Neuberger
I agree.
Sir William Aldous
I also agree.
ORDER: Appeal dismissed; terms of the order as agreed; permission to appeal to the House of Lords refused.
(Order does not form part of approved Judgment)