High court considers third party provisions of recast Brussels Regulation

03/11/16

Judgment was given today in the High Court in Roberts v SSAFA and MOD on a jurisdiction challenge brought by Allgemeines Krankenhaus Viersen Gmbh (“Viersen”) as third party on a Part 20 claim brought against them by the Ministry of Defence (“MOD”) and Soldiers Sailors Airmen and Families Association-Forces Help (“SSAFA”).

The underlying litigation was a claim for negligence against MOD and SSAFA brought in relation to the birth of Harry Roberts, in Viersen’s hospital in Germany. Harry Roberts, whose father was a UK serviceman posted to Germany,  suffered brain damage at birth and alleged it was as a result of the negligence of the midwife, who was employed by SSAFA and for whom it was alleged MOD were responsible. SSAFA/MOD, who denied liability, sought to claim contribution and an indemnity from Viersen on the grounds that the fault lay wholly or partly with obstetricians at Viersen’s hospital.

The application raised issues as to the ambit of Art 8(2) (third party proceedings) of the recast Brussels Regulation (see SOVAG v If Case C-521/14 2016 QB 780 CJEU) and the circumstances in which an alleged agreement founded on ostensible authority could constitute an “agreement in writing” for the purposes of Art 25 (1)(a) of the recast Brussels Regulation.

Viersen contended (i) that the English court had no jurisdiction under art 8(2) and (ii) that SSAFA/MOD were bound by an exclusive jurisdiction clause in favour of the German courts under a related contract.

Dingemans J held that the English court had jurisdiction over the third party dispute under Art 8(2) and found that SSAFA/MOD had the better of the argument to the effect that the jurisdiction clause was not incorporated as between Viersen and SSAFA/MOD. In the light of those findings he found it unnecessary to determine whether an agreement made as a result of reliance on the ostensible authority of an agent could in law be an “agreement in writing” within Article 25. 

The judgment appears here.