Royal & Sun Alliance Insurance Plc & Anor v MK Digital FZE (Cyprus) Ltd & Anor

This is an application by Hi - Tec Electronics SA (“Hi – Tec”) under CPR Pt 11.1 for one of two orders. The first order sought is for a declaration that the Court has no jurisdiction to try the claimants’ claim against the second defendants and so service of the claim form on the second defendants be set aside. The second, and alternative, is for a declaration that the Court should not exercise any jurisdiction which it may have to try that claim and an order staying those proceedings.

These proceedings and proceedings which are currently going on in the Tribunal de Commerce de Villefranche – Tarare, arise out of the theft of a consignment of 90 pallets of mobile telephones when they were being transported in a 40 tonne rigid trailer on the autoroute from Paris to Calais on 4 November 2004. The value of the mobile phones is about £3.5 million.

Interesting issues arise on this application. The hearing before me took a day on Friday 10 June 2005. I would have preferred to take more time to set out my reasons for my decision, which could have been handed down in the normal way. However I was told by both parties that it would be most helpful for my decision and reasons to be available before a judgment is given by the judge in the French Court, which is due on Thursday 23 June. So I have prepared this draft judgment and have stated that it can be shown in this unofficial form to the French Court. Unfortunately the intervention of other business has prevented me from providing the draft before today.

The second claimant is a French company. The first claimant (“Royal & Sun”) is Exel’s goods in transit legal liability insurer. The reason for joining it to the present proceedings is, I am told, because under French law it is possible to sue directly a liability insurer and it was thought by those advising the claimants that this might happen to Royal & Sun in French proceedings.

The first defendant (MK Digital FZE (Cyprus) Ltd: “MK Digital”) is a Cyprus company which sells mobile telephones. That company is owned and controlled by Mr Moizuddin Khan who has an address in Dubai. MK Digital sold the mobile telephones (which were subsequently stolen) to Hi – Tec. That is a company incorporated in Denmark. There is a dispute (which in my view does not matter for present purposes) about whether Hi – Tec actually carries on business in England and Wales. Hi – Tec trades in wholesale markets for electronics components, including mobile telephones.

The third defendant, TRS Univers Lines (“TRS”) is a company that is incorporated in France. It is a road carrier. The fourth defendant, AMS, is also a French company and is also a road carrier.

The background to the case is this: on about 28 October 2004, Hi – Tec placed an order for a total of 18,000 Nokia mobile telephones with MK Digital. One part of the order consisted of 8,000 Nokia 7610 GSM handsets SIM Free; the other consisted of 10,000 Nokia 7200 GSM handsets SIM Free. The whole consignment was to be delivered FOB Larnaca airport, Cyprus on 4 November 2004.

The goods were to be flown to France. MK Digital arranged for a Cyprus company to fly the goods to France.

There is a dispute as to the ultimate destination of the mobile telephones once they reached France. It is the case of Hi – Tec that the mobile phones were destined for a customer in Italy called Nuovo Suono, pursuant to a contract of purchase made on about 28 October 2004 between Hi – Tec as sellers and Nuovo Suono as buyers. But it is the case of Exel that these mobile phones were destined for the UK. The issue of the designated delivery place of the mobile phones is important and I will have to form a view (on the evidence I have now) about that.

In any case, Hi – Tec had contacted Exel to arrange for the onward carriage of the mobile telephones upon arrival at Paris. There is no dispute that instructions were given by Hi – Tec to Exel in relation to the carriage of the goods from Paris. The other key dispute between Exel and Hi – Tec arises on the nature of the contract concluded between Exel and Hi – Tec. Exel says that the contract made with Hi – Tec on 3 November 2004 was for the carriage of the mobile telephones from Paris to Middlesex. Hi – Tec says that Exel was engaged as a freight forwarder, or in French legal terminology, as a “commissionaire de transport”. There is, in French law, a most important distinction in terms of potential liability to goods owners as between that of a “commissionaire de transport” and an international carrier by road. I will have to expand on that in due course.

At all events, Exel understood that the consignment of mobile phones was to be collected from a cargo depot at Charles De Gaulle airport and was to be transported to the premises of Interken Freighters (UK) Ltd in Southall, Middlesex.

Exel contacted TRS, which regularly provided road transport to carry goods for Exel. TRS told Exel that it could not provide a 40 tonne rigid trailer, but it could use a sub-contractor, AMS, to supply this equipment to Southall. That was agreed. Exel prepared the CMR Note for the movement. It was also agreed that Exel would provide an escort driver. He was M. Jean Claude Chauvet, who was employed by Exel regularly as a driver of its vehicles.

M. Chauvet went to Charles De Gaulle airport and, after some delay, the truck arrived at Freight Area 5 at 3pm on 4 November 2004. The details in the CMR Note were completed and the truck, trailer and escort vehicle set off onto the autoroute A1 to Calais. After a little while the truck turned off at an “Aire” at Ressons. M. Chauvet also turned off. The two truck drivers and M Chauvet went to have a cup of coffee. On returning to the transports, the truck moved off but M Chauvet could not because the tyres of his vehicle had been slashed. M Chauvet telephoned the truck drivers to tell them to wait. They said that there were on the autoroute and so he would just have to catch up. M Chauvet was suspicious and so rang the police. But in fact the truck disappeared and the consignment has never been seen since.

The proceedings in England and France:

The statement at the foot of the Brief Particulars are important: that reads: “We certify that the High Court of England and Wales has the power to hear and determined the Claimants’ claims against the Defendants by virtue of Article 57 of the Civil Jurisdiction Judgments Act 1991 and the Convention on the International Carriage of Goods by Road (CMR) enacted in the Carriage of Goods by Road Act 1965 and that no proceedings involving the same cause of action are pending between the parties in Scotland, Northern Ireland, or any other Convention territory of any contracting state, as defined, by Section 1(3) of the Civil Jurisdiction Judgments Act 1982 as amended by section 2(5) of the Civil Jurisdiction and Judgments Act 1991”.

It is clear that the claimants were saying that jurisdiction could be founded under the terms of Art 31 (1) of the CMR and that, as is provided for in Art 31 (2) of the CMR, there were no other proceedings pending in a court that would be competent to hear the claim under the terms of Art 31. I will have to return to this later on.

At the time the English proceedings were issued, there were no other proceedings. On 26 November 2004 AMS were added to the Claim form.

Before any defendants had been served with the English proceedings, Hi - Tec instituted proceedings before the Tribunal de Commerce de Villefranche Tarare on 2 December 2004 (“the French Proceedings”). At the same time Hi -Tec sought expedition from the French Court. In the French proceedings Exel issued third party summons against TRS and AMS and also obtained an order for expedition. However, at an early stage in the French proceedings Exel raised objections to the court hearing the matter further on the basis that the English court was the court first seised under Art 30 of the Council Regulation 44 of 2001 (“The Judgments Regulation”). The French Court is due to give judgment on this application on 23 June 2005.

The nature of the claim of Hi – Tec against Exel in the French proceedings is that Exel was engaged as a “commissionaire de transport”. Under French law a person engaged as such assumes two responsibilities. These are described in Hi - Tec’s submissions to the French Court, (quoted in para 37 of the second witness statement of Mr Reynolds, solicitor for the Claimant), as follows: “…on the one hand it is responsible for its doings from a personal point of view (article L. 132-4 of the Code of Commerce), and on the other, it is the guarantor of the doings of the carriers and other intermediaries to which it has had recourse for the execution of the transportation which has been entrusted to it (article L-132-6 of the Code of Commerce)……” Therefore, the allegation is that the contract between Exel and Hi – Tec is quite outside the CMR. In the French proceedings it is said that Exel was in breach of its contract by dispatching the consignment to the wrong destination, ie. the UK rather than Italy. It is also asserted that Exel failed to follow an instruction of Hi – Tec to insure the goods. Under French law there is no limit of liability for damages that flow from a breach of the personal responsibilities of a “commissionaire de transport”.

There is a dispute as to whether the Italian company to which Hi – Tec claims it ordered Exel to send the consignment actually exists. The place where Nuovo Suono was said to exist is a hamlet in the Italian Alps some 12,812 feet above sea level. It has a population of about 1200. The address to which Exel was supposed to send the goods – Emilia Zanti 3497 – does not exist. The solicitors for Exel have written to a company called “Nuovo Suono” which carries on business as a retailer of mobile telephones at Reggio Emilia, which is 200 km south of Trafoi. That company has responded saying that the documents relied upon by Hi – Tec as demonstrating dealings with Nuovo Suono are not documents from the “real” Nuovo Suono SRL. The President of the Board of Directors of Nuovo Suono SRL has stated that it appears that “unknown persons are making illicit use of the corporate name of Nuovo Suono SRL and its relevant VAT Number”.

Returning to the history of the two sets of proceedings, the next step concerned the English proceedings. On 4 January 2005 Exel’s solicitors lodged with the High court the papers necessary to effect service of the English proceedings on MK Digital and Hi – Tec. The English proceedings were served on Hi – Tec on 4 February 2005. Then on 24 March 2005 Hi – Tec issued its Application Notice in the English proceedings and served it with accompanying evidence on Exel’s English solicitors.

The final hearing in the French court on whether the French proceedings should be stayed was on 21April 2005.

The arguments of the parties

Mr Kenny, for Exel, submits: (i) that on the good arguable case test, the contract between Exel and Hi – Tec is for the international carriage of goods by road and so is governed by CMR. Further, on the good arguable case test, the place designated for delivery was the UK. Therefore the English Court has jurisdiction under Art 31(1) of the CMR. (ii) Art 31(2) does not apply in this case, because the English proceedings had been started before the French ones. (iii) As Art 31(2) does not apply in this case, the question of whether the English Court or the French court should determine the matter is governed by the Judgments Regulation, to which both France and the UK are a party. This is a case where, under Art 30 of the Regulation, the English Court was first seised of the matter, as Exel has complied with Art 30(1). Because the same cause of action has been brought by Exel and Hi – Tec in the French and English Courts, Art 27 applies. Therefore the French Court must stay its proceedings, because under Art 30 of the Regulation, the English Court was first seised of the matter.

These state:

I have to decide the following: (i) what is the nature of the claim asserted by Exel in the English proceedings? In particular does the claim constitute “legal proceedings arising out of carriage under” the CMR, to follow the wording of Art 31(1) of the CMR. If the proceedings come within that definition, then, it seems to me, the jurisdictional regime must be that of the CMR. If not, then it must be that of the Brussels Convention. I believe that those two putative conclusions are not in issue between the parties, because of the “saving” provision in Article 71 of the Judgments Regulation 44/2001 (which is the equivalent of Article 57 of the Brussels Convention). Both parties accept that the CMR falls within the terms of Article 71/57. As I understand it, both sides also accept that I have to consider whether the English proceedings fall within Art 31 on the basis of a “good arguable case”.

(ii) If the CMR jurisdiction regime applies, was the “place designated for delivery” of the consignment of mobile telephones the UK or Italy. Again, I understand that both sides accept that I have to answer this question on the basis of a “good arguable case” test.

(iii) If the UK is the “place designated for delivery” of the goods, then does Art. 31(2) operate because there is an action “pending” in France, so that the English Court does not have jurisdiction or must stay the present action here.

(iv) If Art 31(2) of the CMR does not apply, then, under the Judgments Regulation, are the actions in France and England, as between Hi – Tec and Exel, “proceedings involving the same cause of action” so that Art 27 applies, or “related actions” so that Art 28 applies? As Mr Graham accepts that, for the purposes of this application, under Art 30 of the Regulation the English Court is the Court first seised, then in either case the English proceedings can proceed, subject to the issue referred to below, but a decision on the Art 27/28 point will determine what the French Court should do with the French proceedings.

(v) On the assumption that the English proceedings arise out of carriage under the CMR and Art 31 governs jurisdictional issues, apart from those covered by the Judgments Regulation, does the English Court have jurisdiction to stay the English proceedings on the ground of forum non conveniens?

The CMR, which is given the force of law in the UK by virtue of the Carriage of Goods by Road Act 1965, applies so far as its provisions relate to the rights and responsibilities of persons concerned in the carriage of goods by road under a contract to which the Convention applies. As Mance J pointed out in Aqualon (UK) Ltd v Vallana Shipping Corp [1994] 1 Lloyd’s Rep 669 at 673, it is a pre – condition to the application of the CMR that there should be a contract for the carriage of goods by road. Whether that is, in fact, the case is a matter to be determined by the applicable national law.

In my view I have to do two exercises in order to answer the question posed in this first issue. The first exercise is to analyse the way the claim is put in the Claim Form. The second is to examine the evidence before me and decide on the nature of the contract. (No one suggested that I should do this other than by reference to English law tests). It was accepted by both counsel that I would have to be satisfied that there is a “good arguable case” that the English proceedings constitute “legal proceedings arising out of carriage” under the CMR and that the burden was on Exel to show that is so. There was some debate over the precise nature of the test of “good arguable case” in the context of a dispute about jurisdiction. I was referred to the judgment of Waller LJ in Canada Trust v Stolzenburg (No 2) [1998] 1 WLR 547 in particular at 555 and the decision of the House of Lords in that case, reported at [2002] 1 AC 1. Their Lordships approved what was said by Waller LJ about this test in the context of a dispute about jurisdiction of the court.

The essence of the test is that the court must be satisfied that it is right for the court to take jurisdiction. If that judgment involves making some kind of decision on one of the very matters that would be for decision at the trial, then the court must not be seen to pre-empt the decision at trial, particularly where the evidence at the jurisdiction stage will be incomplete and made upon affidavit or by witness statement only.

In this case if the matter were to continue in the English court the nature of the contract between Exel and Hi – Tec would be the fundamental issue in the case. Therefore, although I must not be seen to pre – judge that issue, I must at the same time test the evidence to see whether the English Court can properly accept jurisdiction.

In the light of this, I consider first the nature of the claims as pleaded by the Claimants in the English action. I note here that Mr Graham did not try and isolate the position of Royal & Sun. Nor, under this heading, did he make a point that this was, in the first case, a claim by the claimants for declarations of non – liability. He was right not to do so, in my view. The phrase in Art 31(1) is: “legal proceedings arising out of carriage under this Convention”. In my view that is wide enough to encompass a claim for a declaration of non – liability and to include any proceedings in which a goods in transit liability insurer claims a declaration that it is not liable in respect of an alleged loss during international carriage of goods by road. They are both claims “arising out of carriage under[the CMR]”.

In my view the claims asserted in the “Brief Details of Claim” in the English Claim Form plainly intend to represent legal proceedings arising out of carriage under the CMR. That is clear from the language of the second and fifth paragraphs and the “certifying” paragraph at the end, in particular.

But that cannot be determinative of whether the CMR jurisdiction regime should apply. I have to consider the next issue, which is, whether there is a good arguable case that the contract between Hi – Tec and Exel was one to which the CMR applied or was in the nature of a freight forwarder or transport intermediary contract. That depends, critically, on the role of Exel as agreed by the parties and the role undertaken in fact. Both counsel accepted that in considering this point I should be guided by factors set out by Mance J in Aqualon (UK) Ltd v Vallana Shipping [1994] 1 Lloyd’s Rep 669, which case was approved by the CA in Lukoil – Kaliningradmorneft plc v Tata Ltd & Global Marine Transportation Inc. [1999] 2 Lloyd’s Rep 129. Mance J identified five factors in particular, although he did not suggest they were exclusive or definitive. Mance J said:

“The most obvious are:

(a)

the terms of the particular contract including the nature of the instructions given …..

(b)

any description used or adopted by the parties in relation to the contracting party’s role;

(c)

the course of any dealings, including the manner of performance – at least in so far as it throws light on the way in which the parties understood their relationship;

(d)

the nature and basis of charging (in particular whether an all-in fee was charged, leaving the contracting party to make such profit as he could from the margin between it and the costs incurred);

(e)

the nature and terms of any CMR [consignment] note issued.”

To my mind the most important aspects in this case are the first two, because there is a witness statement from Mr Arif Rashid , a director of Hi – Tec, who made the contract in question in the course of a telephone conversation with Mr Thomsen of Exel. Mr Rashid says that the conversation took place on 3 November 2004. There may be a dispute about that date. But the important point is set out in para 11 of Mr Rashid’s first witness statement, which says:

“I have been asked whether the contract was a contract for Exel to transport the Goods to Italy themselves or a contract for Exel to arrange for the transportation of the Goods to Italy using some third party as carrier. I did not draw a distinction between these two options in my mind at the time. However, it was not important to Hi-Tec that the Goods were transported in an Exel lorry (as opposed to being transported in the lorry of some other reputable transport company); what was important to Hi-Tec was that Exel saw to it that the goods were delivered to the right destination and on time – if they wanted to arrange for a third party to do the actual transportation, Hi-Tec would have had no problem with that, so long as that company was a reputable and reliable one and that Exel took responsibility for the job”.

There is no equivalent statement from Mr Thomsen, but there is a second witness statement from Mr Justin Reynolds (partner in Hill Dickinson, solicitors for Exel), who says that his information has been obtained from Mr Thomsen amongst others. His evidence is set out in his second witness statement, at paras 8 and 11(2), as follows:

“Exel’s evidence is that on 28 ^th or 29 ^th October Mr Jens Thomsen, its transport manager at Rungis (near Orly airport), received a telephone call from Mr Rashid of Hi Tec, to advise of a future consignment of a mobile phones coming from Cyprus, to be collected from Roissy CDG and carried to the premises of Interken in Southall.

….Mr Thomsen’s clear understanding of his conversation with Mr Rashid on 28 ^th or 29 ^th October was that the new consignment from Cyprus when it arrived, was also to go to Interken. Unfortunately, he made no note of the conversation”.

That evidence strongly suggests that the contract was one for the carriage of the goods. Of course, a person can contract for the carriage of goods as principal and still sub – contract the work. So what Mr Thomsen arranged subsequently is entirely consistent with a contract to carry as opposed to a contract as a freight forwarder.

In relation to factor (b), Mr Graham relied on subsequent letters and the French proceedings in relation to this factor. The latter is likely to be self- serving and is of no help. The letter from Exel to TRS and their insurers, dated 10 November 2004 is, in my view, equivocal, in any event.

As for factor (c), Mr Graham relies on the details of previous contracts relating to the carriage of goods between Exel and Hi – Tec. But Mr Kenny rightly points out that Mance J stated that these previous dealings were only helpful insofar as “it throws light on the way in which the parties understood their relationship; thus whether or not the contracting party informed the goods owner of or identified the actual arrangements made for the carriage”. Mr Graham relies on the previous invoices and CMR notes for two instances of Hi – Tec goods being handled by Exel. The invoices indicate three heads of charge. One is “TRS INTL”; the next is “HANDLING”; the last is “CONTROL”. The sums charged (in Euros) are very much larger for the first item than the other two. Mr Graham says that this indicates that Exel charged the transportation rate that they had had to pay to whoever transported the goods in fact and then added their charge for handling and control. He submits that is what a freight forwarder would do. There is no expert evidence about that point. I agree with Mr Kenny that the invoice can also be looked at as Exel setting out its charge for transportation, handling and control so that the elements can be seen by the goods owner who has to pay. So I regard the previous invoices as equivocal.

The previous CMR Notes are in the same form as the one in the present case, so there is no additional point to be made there. There is no evidence that Exel had stated anything to Hi – Tec on these previous occasions about how it (Exel) intended to carry out its obligations.

Factor (d): There is no invoice in the present case. But nothing further can be derived from this point, assuming that the form of the invoice would have been the same as on the two previous occasions, for the reasons I have given.

Factor (e): Mr Graham submits that the CMR Note strongly suggests that Exel regarded its role as that of freight forwarder. He notes in particular that it appears to have been prepared by Exel who signed it on behalf of the “sender” in Box 22. Hi - Tec is identified as the sender in Box 1. TRS is identified as the transporter in Box 16 and Mr Amsellem signed for the transporter. All this indicates that Exel regarded itself as the agent of the sender, Hi – Tec, Mr Graham submits.

Mr Kenny accepts that the CMR Note does support the submission that Exel regarded itself as acting as agent. However, he points out that the CMR Note was prepared after the contract between Hi-Tec and Exel had been concluded, and there is no evidence that Hi – Tec saw or agreed to the terms of the Note. Therefore this is of little help in deciding on the nature of the contract agreed between Hi – Tec and Exel.

I agree with that submission. Overall I think that the balance of the factors, but most particularly the evidence on what was agreed between Mr Rashid and Mr Thomsen, supports a good arguable case that the contract between Exel and Hi – Tec was one for the international carriage of goods by road, not one to act as a freight forwarder.

This conclusion means that I have to decide the issues of jurisdiction, at least in the first place, by reference to Art 31 of the CMR.

Mr Rashid states in paragraph 10 of his witness statement that in a telephone conversation with Mr Thomsen of Exel on 3 November 2004, he instructed Mr Thomsen that the goods were to be transported from France to Hi – Tec’s customer in Italy. In support of Hi – Tec’s case that the place designated for delivery of the mobile phones was Italy, Mr Rashid relies also on a fax, said to have been sent to Exel on 3 November 2004, which referred to “8000 pcs of Nokia 6610 and 10000 pcs of Nokia 7200” and identifies the customer in Italy as Nuovo Suono at what now appears to be a non – existent address. That was followed by a fax of 4 November, which referred to the same numbers and types of Nokia phones, but instructed Exel to ship them “from Frankfurt airport (FOB) and deliver it to my customer”. It also stated: “I would like 100% insurance cover for the above goods”.

On Exel’s side the witness statement of Mr Reynolds says (para 8 and following) that Mr Thomsen, the transport manager of Exel, had a telephone conversation with Mr Rashid on 28 or 29 October about these mobile telephones and that Mr Rashid instructed Exel to deliver them from Roissy to the premises of Interken in Southall. Mr Thomsen had a telephone conversation with a lady from Eurofreight Logistics Ltd (a Cyprus freight fowarding company) saying that the Hi – Tec shipment was leaving Larnaca for Roissy, Charles De Gaulle airport. Mr Thomsen says that he did not receive the 3 November fax that day, but received it and the 4 November fax at 13.31 on 4 November, 2004. However, neither he nor his secretary looked at these faxes until after the goods were stolen.

There is, in my view, much to argue about on the faxes of 3 and 4 November. That will have to await a trial, wherever that might be. For the present, I do not feel able to regard them as reliable evidence of what was agreed between the parties about the destination of the goods.

The fact is that Mr Thomsen made all the arrangements for the carriage of the mobile phones from Paris to the UK. So the only way that Hi – Tec can put their case is to say that Mr Thomsen completely misunderstood his instructions from Mr Rashid or, in the rush of business he did what he did with 80% of the movements Exel was involved in: ie. he sent them to Interken.

I find this implausible. First, it seems Exel did not deliver to Italy at all as part of their business. So if there had been instructions to do so, it is likely to have stood out in his memory. Secondly, Mr Thomsen was well aware that mobile phones are high risk cargoes for carriage by road. Also, that the risk of theft or hi – jacking in Italy is notorious. Therefore, he has stated (through Mr Reynolds) he would never agree to arrange a delivery to Italy and, if offered such a consignment, would have refused to enter into the contract.

I am therefore satisfied that there is a “good arguable case” that the UK was the place designated for delivery of the mobile telephones.

At this stage I should look overall at the constituents for the English Court accepting jurisdiction under Art 31 of CMR and ask: am I satisfied that it is, prima facie, right for the English Court to take jurisdiction? I am satisfied overall.

Mr Graham submits that the French proceedings are “pending” because they have been served on all parties. At the time that was done the English proceedings had been started but had not achieved the status of being “pending”, because they had not been served on any defendant. Therefore, he submits, on the assumption (which he makes for this purpose) that the two sets of proceedings are between Exel and Hi – Tec and are “on the same grounds”, then the English proceedings should not be continued.

In giving the first judgment, Rix LJ sets out his reasons for his conclusion on the meaning of “pending” in Article 31(2) at paras 47 to 51. One reason Rix LJ gives for his conclusion regarding the meaning of “pending” is set out at para 49 of his judgment. He states:

“49.

Secondly, while recognizing the argument of Mr Mildon that the very competition between an action which is pending in one jurisdiction and started in another might suggest that the concepts of “pending” and “started” should be harmonized rather than contrasted, I find that the sense of contrast prevails. If that means, where the pending action has priority but the second action has been started before such priority has been achieved, that the words “no new action shall be started” is to be understood to mean “no new action shall be started or continued”, I would regard that as preferable to finding that the contrasted language is to be construed to mean the same thing. Alternatively, but in my view less satisfactorily, one would conclude that the second action which has been started before the pending action reaches priority simply escapes the bar which would have been achieved if the pending action had reached priority before the second action had been started.”

Lord Justice Chadwick agreed with the conclusion of Rix LJ on the meaning of “pending” and for the reasons given by him: see para 78. However, Chadwick LJ also makes it clear, in para 79, that he does not necessarily accept the view of Rix LJ, expressed in para 49 of his judgment, that if there were a situation where an action has been started in one jurisdiction, but it is not “pending”, then if another action is started in another jurisdiction and becomes a “pending” action, the first court must stay its action. Chadwick LJ says, at para 79:

“I appreciate that that leaves open for decision, in a case in which the question does arise, whether a Court before whom an action has been started but is not pending (in the sense in which I think those words should be understood in this context) at the time when some other action becomes a pending action (by service on, or notice to, the defendant) is obliged to, or has power to, stay the action which is before it. As Lord Justice Rix has observed, it seems likely that the Austrian Court will need to address that question in relation to the Austrian proceedings. For my part, I doubt whether the answer is to be found in art. 31(2) of the CMR Convention.”

On this point the third member of the court, the Vice Chancellor, did not express an opinion.

Mr Graham accepts that the remarks of Rix LJ on the proper construction of Art 31(2) in the example he gives in para 49 of his judgment, beginning with the sentence “If that means, where the pending action has priority, but the second action has been started before such priority has been achieved…” are not directly part of the decision in the case. He also accepts that Chadwick LJ did not agree with Rix LJ’s view on that point. Nevertheless, Mr Graham submits that I should adopt Rix LJ’s view.

I have difficulty with accepting the view of Rix LJ that Art. 31(2) can be interpreted to deal with this situation. Assuming (as I must) that “pending” and “started” have different meanings in the Article, the fact is that a great deal of verbal manipulation with the wording of Art 31(2) has to be performed if it is to be interpreted as Rix LJ suggests. On the interpretation of Rix LJ, the first part of the sentence comprising Art 31(2) would have to read: “Where in respect of a claim referred to in paragraph 1 of this article an action is pending before a court or tribunal competent under that paragraph….no new action shall be started and no action which had been started but is not pending shall be continued between the same parties on the same grounds….”.

However purposive a construction is given to Art 31(2), I feel unable to read in the words “ and no action which had been started but was not pending shall be continued…”. Like Chadwick LJ, I doubt whether the answer to this particular problem is to be found in Art 31(2) of the CMR. Instead, where the Courts concerned are governed by the Judgments Regulation, I believe the answer is to be found in the provisions of Articles 27, 28 and 30.

Both counsel agreed that if Article 31(2) did not apply to resolve the question of how to deal with the existence of two actions as between Hi – Tec and Exel, then the matter must be dealt with by reference to the Judgments Regulation. This is because the actions are in the Courts of France and the UK, both of which are party to that Regulation.

Articles 27, 28 and 30 appear under the heading “Lis pendens – related actions” and provide:

Mr Kenny submitted that the English court was “first seised” of the matter, because the Claim Form was lodged with the English Court first in time, and Exel has not subsequently “failed” to take the steps it was required to take to have service effected on Hi – Tec. Mr Graham rather half – heartedly suggested that Exel had failed to take the necessary steps. I do not accept that. Exel complied with the rules in the CPR about service. As I have held, the claims by Exel and Royal & Sun constitute proceedings arising out of carriage under the CMR. Therefore, under CPR Pt 6.19(2) a claim form may be served on the defendant out of the jurisdiction without the permission of the court. This is because the Claim Form contains (and only contains) a claim arising out of carriage under the CMR and, under the provisions of Art 31(1) and in the circumstances of this case, the English Court has jurisdiction to determine that claim. (I should note, incidentally, that it is not suggested that a claim for a declaration of non – liability cannot come within Art.31: see the Merzario case: passim). Exel did serve Hi – Tec without permission, as they were entitled to do and there is no suggestion that there was any defect in the technicalities of service.

It follows that the English Court was the court first seised of an action arising out of carriage under the CMR. The next question is whether the French proceedings as between Exel and Hi – Tec “involve the same cause of action” for the purposes of Art. 27 of the Judgments Regulation.

It is well – established that the phrase “same cause of action” in Art. 27 has an “autonomous” meaning and is not to be interpreted according to the criteria of national law. The test to apply is discussed in Briggs and Rees on Civil Jurisdiction and Judgments, 3 ^rd Ed, at para 2.189. Basing themselves on the ECJ decisions of Gubisch Maschinenfabrik KG v Palumbo [1987] ECR 4861; Overseas Union Insurance Ltd v New Hampshire Insurance Co [1991] ECR I – 3317 and The TATRY [1994] ECR I – 5439, the authors submit that there are two tests that have to be satisfied. First, do the actions have as their basis the same facts and rule of law; secondly do they have the same end in view? The authors suggest another way of testing the matter is to ask whether a decision in the one set of proceedings would be a conclusive answer to the question raised in the other?

The two actions arise out of the same facts. They arise out of the same rule of law in the sense that both are concerned to decide the nature of the contractual relationship between Exel and Hi – Tec and what the legal consequences of that contractual relationship will be. If either court decides that Exel contracted as a carrier, then the CMR must govern the contractual relationship of the parties. If either court decides that Exel contracted as a freight forwarder or “commissionaire de transport” then CMR will not govern, and the nature of the contractual relationship and the consequences of that will be governed by the proper law of the contract.

Both sets of proceedings have the same object in the sense that they have the same end in view, which is to determine the liability, if any, of Exel to Hi – Tec, for the loss of the mobile telephones stolen on 4 November 2004. A decision in either Court should be a conclusive answer to the question raised in the other.

Accordingly, I conclude that, as between Exel and Hi – Tec, the proceedings in France and the UK involve the “same cause of action” for the purposes of Art. 27 of the Judgments Regulation.

In my view the answer to this question is clearly “no”. I think that, logically, the issue first arises in relation to the CMR. The argument is that even if English jurisdiction is established under the CMR, then if England is not the convenient forum, the proceedings can be stayed, particularly if there are pending proceedings in another jurisdiction, in this case France.

That argument assumes that there is room for the doctrine of “forum non conveniens” in the context of the CMR. Neither counsel has referred me to any authority which involves the CMR on this point. However Mr Kenny referred me to Milor SRL v British Airways Plc [1996] QB 702. That is a case on the Warsaw Convention. Jurisdiction was established in England under Art 28 of the Convention, but the defendant sought to stay the action on the grounds that Pennsylvania was the more convenient forum. Both the judge and the Court of Appeal dismissed the application. Phillips LJ, (as he then was), gave the principal judgment. He held, agreeing with Longmore J, that the operation of the doctrine of “forum non conveniens” was inconsistent with the express wording of Article 28, which set out a definitive choice of forums in which a claimant could bring an action for damages under the Convention. Phillips LJ also held, agreeing with the judge, that Article 28 was a self contained code in relation to jurisdiction. Phillips LJ pointed out that the doctrine of “forum non conveniens” was, at the time that the Warsaw convention was concluded in 1929, a doctrine recognised in only a minority of common law countries, of which at that time England was not one. It is, of course, a doctrine that is not recognised at all in civil law countries. As Phillips LJ commented, at page 708: “I think it would be surprising if the high contracting parties had preserved to that small minority of countries which applied the doctrine of forum non conveniens a power to affect the choice of forum in which a dispute should be tried by a process unknown to the majority of the [high contracting] parties”.

In my view exactly the same reasoning and conclusions apply to the CMR. Art 31(1) is an exclusive code as to where proceedings “arising out of carriage under this Convention” may be brought. The final words of that paragraph are “and in no other courts or tribunals”. As with the Warsaw convention, in my view, Art 31(1) leaves no scope for a challenge to the jurisdiction on the grounds of “forum non conveniens”.

I respectfully echo, in relation to CMR cases, the comments that Phillips LJ makes at page 710 of the judgment in the Milor case. There he doubts the gloomy comment of the editors of Shawcross & Beaumont on Air Law, who suggested that the unavailability of forum non conveniens in aviation cases would have most unfortunate consequences. In relation to that, Phillips LJ said: “There is something to be said for a regime which restricts the choice of forum in a manner which excludes those which are likely to be inappropriate, but which does not otherwise permit the plaintiff’s choice to be challenged”. In those circumstances, comments that a case is more connected with one of two countries, both of which could legitimately be the basis for jurisdiction by the claimant under the CMR, are both inapposite and unhelpful.

If the doctrine of forum non conveniens cannot affect the CMR, then, for the reasons that I have already given, the English Court is the proper forum, subject to the “lis pendens” point dealt with under Issue Four. I have decided that the question of which of the two courts should deal with the matter must be determined under the Judgments Regulation. If so then, as is well established, the doctrine of “forum non conveniens” can have no application. It is inconsistent with the Judgments Regulation regime.

Conclusion: