Wednesday 6th October 2021
This is an appeal by the Claimant against the order made by Kerr J dated 8/1/21 in the Technology and Construction Court declaring that the courts of Hamburg, Germany, have exclusive jurisdiction over the Claimant’s claim;
This is a product liability claim. C’s case is that certain resistors supplied by D were defective. C contends that the resistors were supplied to it under contracts incorporating its own terms and conditions, which provide for English jurisdiction.
D denies that, saying that its terms and conditions, which provide for Hamburg jurisdiction, apply.
Both parties agreed below that if neither of them could demonstrate that Art 25 of Reg EU 1215/2012 (the Recast Regulation) (on prorogation of jurisdiction) applied in their favour, the English courts would have jurisdiction under Art 7 of the Recast Regulation. D submitted that if Art 7 applied the court should nonetheless stay the proceedings under Art 34 as there are related proceedings taking place in Michigan, USA.
The judge held that :
-D’s terms and conditions applied and the proceedings had to be brought in Hamburg if they were to be brought anywhere;
-had Art 7 applied, the case for an Art 34 stay was not made out.
C submits that the judge was correct on the second point but wrong on the first.
Lower Court Judgment: