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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Barton & Ors v Golden Sun Holidays Ltd [2007] EWHC B6 (QB) (03 August 2007) URL: http://www.bailii.org/ew/cases/EWHC/QB/2007/B6.html Cite as: [2007] EWHC B6 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRIMINGAHM DISTRICT REGISTRY
ON APPEAL FROM BIRMIGHAM COUNTY COURT

		Royal Courts of Justice Strand, London. WC2A 2LL
		03/08/2007

Mr Justice Wyn Williams :

1. In or about May/June 2001 thirteen people (hereinafter called "the Claimants") were staying at the Avlida Hotel in Pathos, Cyprus. During the course of their stay they developed gastrointestinal infections as the result of the use of the services at the Hotel. Each of the Claimants was at the Hotel in consequence of a package holiday arranged for them by Golden Sun Holidays Limited (hereinafter referred to as "the Defendant").

2. In due course the Claimants intimated a claim for damages against the Defendant. On the 18^th July 2003 the Defendant admitted liability in respect of the illnesses which each of the Claimants had contracted. Despite this admission proceedings became necessary. On the 19^th February 2004 the Claimants issued a claim form in which each of them claimed damages for personal injury said to be attributable to breaches of statutory duty, breach of contract and negligence on the part of the Defendant. The Claim Form was served together with a Particulars of Claim on or about the same day.

2. The Defendant served its Defence on or about the 2^nd of April 2004. In that Defence it admitted that it was in breach of contract in respect of the health and hygiene procedures in operation at the Hotel at the time of the Claimants' holidays.
3. On the basis of that admission judgment was entered for each of the Claimants with damages to be assessed on the 8^th September 2004. Between that date and April 2006 negotiations ensued between those acting on behalf of the Claimants and the Defendant's legal representatives. By April 2006 all the claims had been settled. In general terms the Defendant agreed to pay to each Claimant damages in respect of the illness suffered together with costs. I understand that the agreement reached about costs was that the Defendant would pay to each Claimant his or her costs to be taxed upon the standard basis if not agreed. Some of the settlements became Orders of the Court (for example where minors were involved). Some of the settlements were simply recorded in correspondence. By April 2006 the only issue which remained for determination between the Claimants and the Defendant was a precise quantification of the costs payable by the Defendant in respect of the claims.
4. On the 29 March 2006 the Defendant issued an application for permission to issue a Part 20 Claim against Avlida Hotel Limited ( hereinafter referred to as "the Part 20 Defendant"). The application was made without notice to the Part 20 Defendant and it came before District Judge Mithani on the 10^th April 2006. The District Judge made an Order granting permission to the Defendant to issue a Part 20 Claim. His Order made no provision for the date by which the Part 20 Claim was to be served.
5. By the 20^th June 2006 the Claimants and Defendant had agreed the quantification of the costs.
6. The Part 20 Claim was served by the Defendant in October 2006. The Part 20 Defendant promptly applied to set aside the Order granting permission to issue the Part 20 Claim. That application came before District Judge Savage on 15^th February 2007 when he dismissed the Part 20 Defendant's application.
7. The Part 20 Defendant launched an appeal against that decision. It also filed an acknowledgment of service in relation to the Part 20 Claim which challenged the jurisdiction of the Court. His Honour Judge MacDuff QC ordered that the application for permission to appeal against the Order of the District Judge and the challenge to the jurisdiction of the Court should be heard together. The hearing took place on the 4^th June 2007 before Her Honour Judge Kirkham. Following the hearing the Learned Judge made an Order refusing the Part 20 Defendant permission to appeal against the Order of District Judge Savage and dismissing its application to challenge the jurisdiction of the Court. She gave a detailed reserved judgment in which she sets out her reasons for making those Orders.
8. Thereafter the Part 20 Defendant sought permission to appeal against the judgment of Judge Kirkham on a number of grounds. On the 9^th July 2007 Goldring J granted the Part 20 Defendant permission to appeal against the Order of Judge Kirkham "on the issue of the interpretation and application of Article 6 (2) of the Council Regulation 44/2002 only".
9. Before dealing, specifically, with the interpretation and application of Article 6(2) it is necessary to consider the basis upon which the Civil Procedure Rules permit the issue of Part 20 Claims. Part 20 Rule 7 provides that an additional claim against a non-party can be made without the Court's permission if the additional claim is issued before or at the same time as the Part 20 Claimant files his defence. At any other time the Court's permission is necessary. Part 20 Rule 9 provides that when a Court is considering whether to permit an additional claim it may have regard to the following matters :-

"(a) the connection between the additional claim and the claim made by the claimant against the defendant;

(b) whether the additional claimant is seeking substantially the same remedy which some other party is claiming from him;

(c) whether the additional Claimant wants the Court to decide any question connected with the subject matter of the proceedings-

(i) not only between existing parties but also between existing parties and a person not already a party; or

(ii) against an existing party not only in a capacity in which he is already a party but also in some further capacity. "

10. As is obvious from the foregoing the Court has a discretion as to whether or not it permits the issue of a Part 20 Claim and the Rule 9 identifies some of the factors which are relevant to the exercise of that discretion.
11. It is of some relevance to the issue which confronts me to consider the basis upon which the Defendant sought permission to issue the Part 20 Claim. In its application notice it recited the history of the proceedings between the Claimants and Defendant and then asserted that it had written to the Part 20 Defendant on a number of occasions in order to seek recovery of the damages and costs payable to the Claimant. According to the evidence filed, the Part 20 Defendant had not responded to any of the correspondence. The Defendant then informed the Court that the purpose of the Part 20 proceedings was to enable it to seek an indemnity or contribution in respect of the Claimants' claims pursuant to section 1(1) of the Civil Liability (Contribution) Act 1978 and that it was making an application at the time it did so as to prevent the expiry of the relevant period of limitation.
12. Council Regulation 44/2001 relates to jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. In its preamble it provides that it is necessary and appropriate that the rules governing jurisdiction and recognition and enforcement of judgments shall be governed by a legal instrument which is binding and directly applicable. That same preamble provides that the rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on a Defendant's domicile. The preamble nonetheless provides that the principle of jurisdiction which is generally based on a Defendant's domicile permits of exceptions. Clauses (11), (12) and (15) of the preamble provide as follows: -

"(11) The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on a defendant's domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor... "

"(12) In addition to the defendant's domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice.

"(15) In the interest of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States. There must be a clear and effective mechanism for resolving cases of lis pendens and related actions and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation that time should be defined autonomously."

13. Article 2 of the Regulation provides that persons domiciled in a Member State shall, whatever their nationality, be sued in the Courts of that Member States. Article 3 provides that persons so domiciled may be sued in the Courts of another Member State only by virtue of the rules set out in specified sections of the Regulation.
14. It is common ground between the parties before me that the only rule which would permit the Defendant in these proceedings to sue the Part 20 Defendant in England and Wales is Article 6 (2). That rule provides as follows: -

"A person domiciled in a Member State may also be sued:

(2) as a third party in an action on a warranty or guarantee or in any other third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;"

15. The principal point taken by the Part 20 Defendant before HH Judge Kirkham was that at the time when the Part 20 proceedings were issued, Birmingham County Court was no longer "seised of the original proceedings". The Learned Judge dealt with that submission at Paragraph 26 of her judgment. She said:-

"I reject Avlida's submission that, at the time the Part 20 proceedings were commenced, the Court was not seised of the dispute of the main action. Prior to the issue of the Part 20 proceedings, the level of damages payable to each of the Claimants had been agreed. Two of the Claimants were minors; their settlements were approved by the Court on the 10th March 2005. The damages claimed by two other Claimants were recorded in Consent Orders - the last of these being dated 13^th May 2005. Settlements of the remainder were recorded in correspondence. So far as costs were concerned, Avlida submit that these had almost been agreed before the Part 20 proceedings were issued: Golden Sun Holidays had said that costs were likely to be settled within a range close to the £126,000 which was indeed subsequently agreed, on 20^th June 2006. In my judgement, because costs were likely to be settled within a fairly narrow range, it does not follow that the court was not then seised of the proceedings. Any party could have applied to the court before costs were finally agreed. In my judgement the court remained seised of the proceedings until costs were agreed. This occurred about six weeks after commencement of the Part 20 proceedings

16. Before me Miss Pollard, Counsel for the Part 20 Defendant, did not assert that the Judge's conclusion on this issue was incorrect. She conceded that the Birmingham County Court had still been seised of proceedings between the Claimants and the Defendant at the time the Part 20 Claims were issued. However, she sought to persuade me that the Part 20 Defendant's jurisdictional challenge should still succeed on two other grounds. The first ground is that the Part 20 Claim was instituted "solely with the object of removing [the Part 20 Defendant] from the jurisdiction of the Court which would be competent in [its] case." The second ground is that this Part 20 Claim should not be categorised as "any other third party proceedings" within Article 6(2).
17. The first ground now taken by Ms Pollard was not taken before HH Judge Kirkham at all. Indeed, it did not feature in Ms Pollard's Skeleton Argument which was dated 23^rd July 2007. She frankly conceded that it was a point which had struck her as meritorious as she was preparing her submissions on the day before the hearing. Normally, of course, an Appeal Court is reluctant, to put it as mildly as possible, to entertain points on appeal which have not been taken in the Court below. However it seems to me that the duty of the Appeal Court is to consider whether or not the decision of the Court below is wrong. That must be the effect of CPR 52.11(3). A decision may be wrong even though the reasons why it is wrong were not advanced at the time when the decision was made.
18. In any event Ms Pollard submits that since the challenge made by her client is a challenge to the jurisdiction of the court any point which is relevant to determining the issue of jurisdiction can be taken on appeal.
19. It is apparent from what I have said that Mr Chapman, Counsel for the Defendant, had virtually no notice of the argument to the effect that the Part 20 Claim was instituted solely with the object of removing the Part 20 Defendant from its natural jurisdiction. Nonetheless he sought to deal with it and did deal with it sensibly and skilfully. What he did not do however, certainly expressly, was to submit that I should not determine the point at all.
20. In the circumstances as they prevail in this case, I have reached the conclusion that it would be open to me to determine the point. Out of deference to the arguments of counsel I will deal with the points raised. I make it plain, however, that I do not found my judgment on this point.
21. The first issue for my consideration is whether the words "unless these were instituted" within Article 6(2) relate to the Part 20 proceedings or the proceedings between the Claimants and Defendant. A distinguished academic _writer, Professor Briggs, in his book entitled "Civil Jurisdiction and Judgments" expresses the view that the phrase is related to the proceedings between Claimant and Defendant and not the proceedings between the Defendant and Part 20 Defendant. Despite the view expressed by Professor Briggs, however, it seems to me that this point has been determined by the European Court in its decision in GIE Reunion Europeenne v The Zurich Espania (2005) ECR I-40. In paragraph 29 of its judgment the Court said: -

"The applicability, in this case, of Article 6(2) of the Convention remains however subject to compliance with the condition requiring that the third-party proceedings should not have been instituted for the sole object of removing the party sued from the jurisdiction of court which would be competent in the case. "

22. That decision, of course, is binding upon me and notwithstanding the views of Professor Briggs to the contrary it seems to me that I must follow it. Mr Chapman did not and, sensibly, could not submit to the contrary.
23. The question therefore arises whether the Defendant instituted the Part 20 Claim against the Part 20 Defendant solely for the purpose of removing it from the jurisdiction of the Court which would be competent in its case.
24. The following paragraphs from the judgment in GIE Reunion assist in assessing whether or not proceedings have been instituted for that purpose. I quote from paragraphs 30 to 33 of the judgment:-

"30. As both the Commission and the Advocate-General, in paragraphs 32 and 33 of his Opinion, have emphasised, the existence of a connection between the two sets of proceedings before the French Courts is inherent in the very concept of third-party proceedings.

31. There is an inherent relation between an action brought against an insurer seeking indemnification for the consequences of an insured event and proceedings whereby that insurer seeks contribution from another insurer considered to have provided cover for the same event.

32. It is for the national court seised of the original claim to verify the existence of such a connection, in the sense that it must satisfy itself that the third-party proceedings do not seek to remove the Defendant from the jurisdiction of the Court which would be competent in the case.

33. It follows that Article 6(2) of the Convention does not require the existence of any connection other than that which is sufficient to establish that the choice of forum does not amount to an abuse."

25. As I have said, it seems to me that these passages are instructive. It seems to me that the exercise upon which the court must embark is as follows. It must establish whether there is a connection between the proceedings between the Claimant and Defendant and the Defendant and the Part 20 Defendant. In reaching a conclusion on that point it will be sufficient to found a connection if the choice of forum does not amount to an abuse.
26. In the instant case the Defendant has explained why it commenced the Part 20 proceedings. It did so in order to avail itself of its rights under section 1 of the Civil Liability (Contribution) Act 1978. At the time it commenced its proceedings, as I understand it, it simply did not know, one way or the other, whether an equivalent statutory provision existed in Cyprus and, therefore, to repeat, it wished to avail itself of the provisions of the English Statute.
27. It is common ground that had the Defendant sought to issue separate proceedings in England against the Part 20 Defendant, in order to rely upon the English Statute, it could not have done so.
28. It is also that fact that at the time the Part 20 Claim was commenced the proceedings between the Claimants and the Defendant were settled. That being so there was no possibility of irreconcilable judgments in the event of proceedings between the Defendant and Part 20 Defendant in Cyprus. Further, there was no possibility of the Part 20 Claim being tried at the same time as the claim between the Claimants and the Defendant.
29. All these factors combine to suggest, strongly, that the court should conclude that the sole purpose of the Part 20 proceedings was the removal of the Part 20 Defendant from the jurisdiction of the court which would be competent in its case.
30. I appreciate, of course, that the District Judges in this case concluded that it was appropriate to grant permission for the issue of the Part 20 Claim. I accept, however, that the fact of that permission is not, in itself, determinative of whether or not the provisions of Article 6(2) are satisfied. I deal more fully below with the decision of Phillips J (as he then was) in Kinnear and Others v Falconfims NV and others [1996] 1 WLR 920. I say at this stage, however, that I do not think that this decision is or could be authority for the proposition that the grant of permission to issue Part 20 proceedings by an English court is sufficient, in itself, to prove the connection between those proceedings and the "main action" necessary to satisfy Article 6(2).
31. All that said I am still reluctant to make a finding which amounts to a finding of abuse of process in this case. There are two reasons. One is the practical and pragmatic reason that the Defendant has never had the opportunity to put in any evidence to rebut the contention which the Part 20 Defendant now makes. It does not seem to me to be proper to make a finding upon this point which, at least, might depend upon factual considerations when, to repeat, the Defendant has had no opportunity of providing relevant evidence. The second is that I have reached a clear conclusion upon the second point advanced by Ms Pollard and I would prefer to found my judgment upon that point given that the first point was taken so late in the day.
32. I turn to the second issue raised by Ms Pollard. Like the first, it was not taken in the form presented by Ms Pollard when it was argued before HH Judge Kirkham. However, the factors which caused the Part 20 Defendant to submit that Birmingham County Court was not seised of the original proceedings at the time the Part 20 Claim was issued are, for all practical purposes, identical to those factors upon which Ms Pollard now relies in seeking to persuade to me that the proceedings are not "third party proceedings" within the meaning that should be given to that phrase in Article 6(2). Further, as I have said, I do not consider it a bar to a consideration of a point that it was not taken in the court below. As with the first point Mr. Chapman did not suggest that it was not open to me to consider this point.
33. I deal firstly with the relevant authorities. In Kalfelis v Bankhaus Schroeder [1988] ECR 5565 the European Court was considering the interpretation not of Article 6(2) but of Article 6(1). That provision reads: -

"A person domiciled in a Member State may also be sued:

(1) where he is one of a number of Defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings;"

The question in the case was described as being whether a connection must exist between the claims made by the same plaintiff against several defendants and, if so, what the nature of that connection is. In paragraph 8 to 11 of its judgment the Court laid down the following principles:-

"8. The principle laid down in the Convention is that jurisdiction is vested in the courts of the State of the Defendant's domicile and that jurisdiction provided for in Article 6(1) is an exception to that principle. It follows that an exception of that kind must be treated in such a manner that there is no possibility of the very existence of that principle being called into question.

9. That possibility might arise if a plaintiff with liberty to make a claim against a number of defendants with the sole object of ousting the jurisdiction of the courts of the State where one of the Defendants is domiciled. As is stated in the report prepared by the committee of experts which drafted the Convention.............such a policy must be excluded. For that purpose, there must be a connection between the claims made against each of the defendants.

10. In order to ensure, as far as possible, the equality and uniformity of the rights and obligations under the Convention of the Contracting States and of the persons concerned, the nature of that connection must be determined independently.

11. In that regard, it must be noted that the above-mentioned report prepared by the committee of experts referred expressly, in its explanation of Article 6 (1), to the concern to avoid the risk in the Contracting States of judgments which are incompatible with each other. Furthermore, account was taken of that preoccupation in the Convention itself, Article 22 of which governs cases of related actions brought before courts in different Contracting States.

12. The rule laid down in Article 6(1) therefore applies where the actions brought against the various Defendants are related when the proceedings are instituted, that is to say where it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from such a proceedings. It is for the national court to verify in each individual case whether that condition is satisfied."

34. In Kongress Agentur Hagen GMBH v Zeehaghe BV [1990] ECR I-1845 the European Court considered a number of questions relating to Article 6(2). The following paragraphs from the judgment of the Court are pertinent:-

"11. Article 6(2) makes provision for a special jurisdiction, which the Plaintiff may choose because of the existence, in clearly defined situations, of a particularly close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings ................ The Convention thus enables the entire dispute to be heard by a single Court..................

17. It should be stressed that the object of the Convention is not to unify the procedural rules but to determine which Court has jurisdiction in disputes relating to civil and commercial matters in intra-Community relations and to facilitate the enforcement of judgments. It is therefore necessary to draw a clear distinction between jurisdiction and the conditions governing the admissibility of an action.

18. With regard to an action on a warranty or guarantee, Article 6(2) therefore merely determines which Court has jurisdiction and is not concerned with conditions for admissibility properly so called.

19. Moreover, the Court has consistently held that, as regard to procedural rules, reference must be made to national rules applicable by the national Court.............

20. It should be noted, however, that the application of national procedural rules may not impair the effectiveness of the Convention.

As the Court has held............ a Court may not apply conditions of admissibility laid down by national law which would have the effect of restricting the application of the rules of jurisdiction laid down in the Convention."

35. There have been two first instance decisions in England which bear upon the interpretation of Article 6(2). The first in time is Kinnear. In that case the relevant facts and procedural history were as follows. On the 19 September 1988 the actor, Roy Kinnear, was making a film near Toledo in Spain, when he was thrown from a horse. He sustained severe injuries to his pelvic girdle and he was taken to a hospital in Madrid. Twenty-four hours later he died. On the 23^rd August 1991 the administrators of his estate commenced proceedings in England against the film company and the producer and director of the film. The administrators alleged that both Mr Kinnear's accident and his death were caused by the Defendants' breaches of contract and negligence. In their Defence the Defendants denied any breach of contract and/or duty and they further denied that Mr Kinnear's death was a consequence of any such breach as was established. They alleged that his death was caused by medical malpractice on the part of the doctor in Spain who had treated him and/or the hospital at which he was treated.
36. On 9^th July 1992 the Defendants obtained permission to issue a third-party notice (the then equivalent of a Part 20 claim) against the doctor and the hospital. In the third-party notice the Defendants claimed an indemnity or contribution in respect of any liability that the administrators might establish against them. The claim for indemnity and contribution was advanced on two different bases, namely, under section 1 of the Civil Liability (Contributions) Act 1978 and as a claim for damages for breach of contract. In due course the doctor and hospital in Spain sought to set aside the third-party proceedings.
37. During the course of his judgment Phillips J identified as one of the issues for his determination the following question:-

"Does the Defendants' claim constitute "any other third-party proceedings " within the meaning of Article 6(2)? - the jurisdiction issue. "

Having identified the issue, Phillips J answered it in the following passages of his judgment:-

"In my judgment...........where domestic procedure permits a third-party to be joined in proceedings, this is likely to be on the grounds which justify overriding the basic right of the Third Party to be sued separately in the country of his domicile and that those grounds are almost certain to be some form of nexus between the Plaintiff's claim against the Defendant and the Defendant's claim against the Third Party. Absent such nexus I would agree that domestic Third Party proceedings cannot properly be described as "any other third-party proceedings" in Article 6(2).

In my judgment the nexus between the Plaintiff's claim against the Defendant and the Defendant's claim against the Third Party required to satisfy 0.16 r.l(l) is likely to be sufficient to justify the special jurisdiction granted by Article 6(2).

So far as the facts of the present case are concerned the exercise of considering the nexus between the claim brought by the Plaintiff against the Defendants and the claim brought by the Defendants against the Third Party are somewhat artificial. This is because the claim for indemnity or contribution under the 1978 Act is not one which could be brought against the Third Party in Spain in any event. The claim is sui-generis, analysed by Dicey and Morris 12^th Edition at p1534, as quasi-contractual. Plainly it could not be brought in Spanish proceedings — indeed Dicey and Morris raise an interesting question as to whether the Act can be invoked in these proceedings in relation to a foreign tort.

In the present proceedings the Defendant has put in evidence an opinion on Spanish Law by Dr Gonzales, an advocate in the firm of Gomez-Acebo and Pombo. This deals, inter alia, with a method by which one tortfeaser can obtain contribution from another in Spain. While the opinion is not entirely clear, it suggest the contribution cannot be sought as such, but that the one tortfeaser has to bring the other before the Court that is seised of the plaintiff's claim and if both tortfeasers are at fault, liability will be apportioned between them on the basis that they are severally liable for the plaintiff's damage.

This illustrates the point of fundamental importance in the present context. Where one tortfeaser wishes to reduce his liability to reflect the fact that another tortfeaser shares responsibility of the plaintiff's damage, it may be impossible to do this unless all the three parties are brought before the same tribunal. That seems to be to be the practical reality in the present case and, so far as the Defendant is concerned, this jurisdiction is the only one which offers that possibility. This of itself abundantly justifies the application of Article 6(2) in the present case. "

38. At first blush, the reasoning of Phillips J appears to support the following propositions advanced by Mr Chapman. Firstly, if there is a nexus between the two sets of proceedings which is sufficient to satisfy the English procedural rules either under the rules of the Supreme Court (as was the position in Kinnear) or under the Civil Procedure Rules there is a sufficient nexus to satisfy the jurisdictional requirement of Article 6(2). Secondly, the Defendants in Kinnear wished to rely upon the Civil Liability (Contribution) Act 1978 just as the Defendant does in the instant case. Phillips J did not consider that reliance to be a bar to the jurisdiction of the Court -quite the contrary.
39. It is to be noted that Phillips J does not express the view that compliance with the English procedural rules will necessarily provide a sufficient nexus for jurisdiction under Article 6(2). Rather, he expresses the view that compliance with the procedural rules will make the finding of such a nexus likely. Further, Phillips. J was dealing with a case in which there was a very real likelihood that the claim made by the Claimants against the Defendants and the claim made by the Defendants against the Third Party would be hotly contested. Certainly, that was the likelihood at the point in time when Phillips J considered the jurisdiction issue. In those circumstances, of course, it was necessarily the case that Phillips J would be astute to avoid the possibility of there being irreconcilable judgments in different jurisdictions. On the facts of the case in Kinnear it is easily understandable that Phillips J thought the jurisdictional requirements of Article 6(2) were met.
40. In Waterford Wedgewood PLC & another v David Nagli Ltd & Others [1998] FSR 92 the relevant facts were as follows. Waterford Wedgewood PLC brought proceedings in respect of the sale or attempted sale by the Defendants of counterfeit Waterford crystals. It alleged both trade mark infringement and passing-off. Following the issue of proceedings Waterford Wedgewood PLC applied for summary judgment and the hearing of its application was set for 1^st July 1997. On the 27^th June 1997 the Defendants sought and were granted permission to issue and serve third party proceedings on a practising solicitor in the Republic of Ireland. Although, as I have said, permission for the issue and service of those proceedings was given the Master refused an application to adjourn the summons for summary judgment in the action between Waterford Crystal PLC and the Defendant.
41. Judgment in the application for summary judgment was given on 24^th July 1997. Certain relief was granted to Waterford Crystal PLC and an order was made that the Defendant should pay its costs.
42. By summons dated 2^nd February 1998 the Third Party sought orders setting aside the Third Party Notice. That application came before Mr Charles Aldous QC sitting as a Deputy High Court Judge. The learned Deputy Judge made the following crucial findings of facts:-

"[Following their obtaining summary judgment] I am told that the plaintiff has since taken no further step in the action other than to enforce payment of their costs ............... Realistically they will probably take no further steps in the proceedings other than for the purpose of enforcing their order for costs................In any case the Defendants are probably not worth pursuing.............If this is right, it means that there are unlikely to be any further proceedings in the main action, by which it is or may be necessary to have the third-party bound. "

Under the heading "Requirements for Article 6(2) " the learned Deputy Judge said:-

" The following principles apply to Article 6(2):

1. The purpose behind the special jurisdiction conferred by Article 6(2) is to secure the rational and efficient disposal of trials and in particular to avoid the risk of irreconcilable judgments which would follow if third party claims were tried separately.

See................ Kongress Argentur Hagen GMBH v Zeehaghe BV [1990] 1 ECR I-1845 and Kinnear v Falconfims NV [1994] 3 All ER 42.

2. Although in Kinnear Phillips J stated at p.48J that the nexus between the Plaintiffs claim against the Defendant and the Defendants claim against the Third Party required to satisfy Order 16 1(1) RSC is likely to be sufficient to justify the special jurisdiction granted by Article 6(2), I do not read this passage as other than illustrating where it may be expedient for the claim and third party claim to be heard together. The Judge was not intending to derogate from the principle of the Convention that to override the basic right of the third party to be sued separately in the Court of his domicile it must be shown to be expedient in the interest of justice and good administration that the two actions or claims be heard by the same Court (See Phillips Jp.48e.)

3. Absent this ingredient, domestic third party proceedings which merely happen to satisfy Order 16 rule 1(1) will not be regarded as "any other third party proceedings" within Article 6(2). Article 6(2) is intended to have the same meaning and effect in each Contracting State.

4. Where therefore the main proceedings are for whatever reasons no longer active, it will in my judgment only be in exceptional circumstances that claims can be pursued by way of third party proceedings under Article 6(2), as where it is necessary the same tribunal which has already tried the issue in the main action should determine similar or related issues in the third party claim.

5. Save in exceptional circumstances "other third party proceedings" refer to the joinder of third parties into active proceedings so that both be heard together.

6. Even in the cases falling within Article 6(2) the Court retains the discretion under the Article. If otherwise the third party claims ought to be pursued abroad, the Court can in appropriate cases exercise its discretion and decline jurisdiction. It might do so for example it would equally refuse leave under domestic rules. "

Having set out those principles the learned Deputy Judge then held that the third party proceedings before him were not "third party proceedings" within Article 6(2).

43. I agree with the learned Deputy Judge that the purpose behind the special jurisdiction conferred by Article 6(2) is to secure the rational and efficient disposal of trials and in particular to avoid the risk of irreconcilable judgments. That is abundantly clear from the preamble to the Regulation and from the decisions in Kalfelis, Hagen, and GIE Reunion. In my judgment Phillips J says nothing in Kinnear which would or could dilute that underlying rational.
44. I also agree with the Deputy Judge that domestic third party proceedings which merely happen to satisfy the national procedural rules will not necessarily be regarded as "any other third party proceedings" within Article 6(2). That article is intended to have the same meaning in effect in each contracting state.
45. In my judgment it is beyond dispute that a connection must exist between the proceedings commenced by the Claimant and the proceedings commenced by the Defendant against a Part 20 Defendant before the Part 20 proceedings can be considered to fall within Article 6(2). It is not possible to define the nature of that connection notwithstanding the understandable desire that Article 6(2) is understood and applied by all contracting states in the same way. It seems clear, however, that the connecting factor must be a close one - see paragraph 11 in Hagen - and there must be good reason to conclude that the efficacious conduct of proceedings is best promoted by both the claim between Claimant and Defendant and claim between Defendant and Part 20 Defendant being considered by one Court.
46. In my judgment there is no close connection between the two sets of claim in the instant case. In the claim brought by the Claimants they relied exclusively on causes of action and remedies solely based in English law existing for the protection of English consumers. The claim brought by the Defendants inevitably will require an investigation of what happened in Cyprus and, probably, the consequences for those parties in Cypriot law. Further there is no basis to conclude that the administration of justice will be achieved more efficiently if the Part 20 Claim is determined by the Birmingham County Court. I accept the submissions made by Ms Pollard in paragraph 13 of her Skeleton Argument which justifies those conclusions. In short the claim between the Claimant and Defendant is no longer active and is unlikely ever to be revived. There is no realistic possibility that the claim between the Defendant and Part 20 Defendant will be tried with the Claimants' claim. There is no risk of irreconcilable judgments. There has never been and never will be any prospect of the Part 20 Defendant being a party in the determination of the proceedings brought by the Claimants against the Defendant.
47. As I have already indicated the Part 20 Claimant did not take this point in its current form before HH Judge Kirkham. Inevitably, therefore, HH Judge Kirkham did not address the point in her judgment. However, and to repeat, Mr Chapman did not seek to persuade me that it was not open to the Part 20 Claimant to reformulate its argument in this appeal in the way that I have set out above.
48. I have reached the conclusion that the Part 20 Defendant's challenge to the jurisdiction of this Court should have succeeded. In short, that is because I accede to the submission that the Part 20 Claim instituted in this Court was not "third party proceedings" within Article 6(2) as that Article has been and should be interpreted. It follows that I consider that this appeal should be allowed.
49. As I indicated at the end of the oral hearing I propose to hand down this judgment in the absence of the parties. I will do so at 10.00 am on Friday 3^rd August 2007 at the Royal Courts of Justice.
50. At the end of the oral hearing in Birmingham the suggestion was made that any appeal against my decision would not be a second appeal. I do not think that can be correct upon reflection. The first instance decision in relation to jurisdiction was made by HH Judge Kirkham. Her decision has been the subject of an appeal to me. That is the first appeal. Any appeal from me, inevitably, would be a second appeal.
51. If that analysis is accepted the Defendant should seek permission to appeal against my decision (if so advised) not from me but from the Court of Appeal.
52. I direct that the time for seeking permission to appeal in this case shall be extended to 4.00 pm 10^th September 2007. If the Defendant wishes to pursue an appeal and if, for some reason which I overlooked, it is the view of the Defendant that it should seek permission to appeal from me it should make the application in writing by that date. If the Defendant accepts that the application should be made to Court of Appeal it must do so by the date specified. Any application for an extension of time should be made to that Court.
53. So far as the issue of costs is concerned I intend to resolve the same having received written representations from the parties. At the handing down I will direct that the parties provide written representations upon the issue of costs by 4.00pm 10^th September 2007 after which date I will determine the issue upon the basis of the written representations.