Ruling of the Tribunal on an application (the “Application”) by the 13th-17th Claimants (the “UK Claimants”) to lift the stay, imposed by the Order of 13 September 2012, as against the 2nd-6th Defendants (the “Defendants”).
The UK Claimants submitted that the stay ought to be lifted as against the Defendants because, whatever the outcome of the First Defendant’s appeal to the Supreme Court, the Tribunal has jurisdiction over the UK Claimants’ claims against the Defendants pursuant to Article 5(3) of Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Brussels Regulation”). This was on the basis that Defendants had caused the UK Claimants harm in the United Kingdom and as such, the UK Claimants did not need the First Defendant as an ‘anchor’ defendant to bring their claim against the Defendants before the Tribunal. The Tribunal considered, contrary to the Defendants’ arguments, that the UK Claimants had a good arguable case that some damage was actually suffered in the UK and, therefore, held that there was jurisdiction under Article 5(3) (the Defendants’ jurisdictional objections to the claims of the claimants other than the UK Claimants remain outstanding).
The Tribunal rejected the Defendants’ contention that ordering the Defendants to defend the UK Claimants’ claims would amount to a submission by the Defendants to the Tribunal’s jurisdiction over the entire proceedings, and not just the claims of the UK Claimants, pursuant to Article 24 of the Brussels Regulation. The Tribunal held that Case 150/80, Elefanten Schuh GmbH v Jacqmain [1981] ECR 1671 and Harada Limited v Turner [2003] EWCA Civ 1695 made it clear that, provided any challenge to jurisdiction is made either before (as was the case here) or at the same time as the arguments on the merits, a defendant can enter an appearance to contest the merits without submitting to the jurisdiction it challenges.
The question then was one of case management. The Tribunal considered that the UK Claimants are entitled, like any other claimant, to have their case heard and determined justly and expeditiously, as required by rule 44 of the Tribunal Rules. A partial lifting of the stay as requested by the UK Claimants would allow, at least some, progress to be made in relation to those claims and that is a real benefit that would accrue from the partial lifting of the stay. The Tribunal did not accept that lifting the stay would give rise to unacceptable adverse case management issues, although it acknowledged that there would be matters, most notably the disclosure process, that would require active case management.
The Tribunal, therefore, granted the Application and will hear the parties on the appropriate directions for the conduct of the UK Claimants’ claims against the Defendants going forward. The Tribunal also abridged the period for seeking permission to appeal the Ruling to two weeks.
