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Adams Win in the Court of Appeal

The litigation department at Adams Solicitors is very proud to announce successfully defending a client in the Court of Appeal; Alfa Laval & Ors. v. Separator Spares & Ors. [2012] EWCA Civ 1569.

Adams was instructed in late 2011 to defend an application to add our three Polish clients as Defendants to a pre-existing ‘anchor claim’ in the English High Court. An unfavourable first instance decision was successfully appealed by our clients in November 2012. Working together with experts in Poland as well as our in-house Polish lawyer, this result is a triumph for Adams’ litigation department and our Polish Client Services.

The Court of Appeal’s decision will have ramifications for any EU national attempting to sue any other EU national outside of his/her domicile jurisdiction. The cases of Swithenbank Foods Ltd v Bowers [2002] 2 All ER (comm.) 974 (HHJ McGonigal) and Glaxosmithkline v Rouard (C-462/06) [2008] ICR 1375 were both considered by the Court of Appeal in this case. In Swithenbank, HHJ McGonigal explained “legal relevance” as “The contract of employment is relevant, and there is a matter relating to an individual contract of employment only if the employee is seeking to rely on that contract of employment in order to bring his claim against the employer”.

In the immediate case, the Court of Appeal held that it was impossible to apply this test as it failed to prevent an EU national being sued in a foreign jurisdiction where an agile pleader was able to formulate the pleadings in Tort rather than contract. Consequently, the Court of Appeal held that where a relationship of employer and employee exists between the parties and the basis of a claim relates to that contract of employment (even where it is not pleaded in this manner) the claimant cannot apply the special jurisdictional exceptions within Article 6 of the Judgments Regulation 44/2001 and therefore, the defendant must be sued in his/her domicile as per Articles 2 and 18.

Moreover, CEF v Munday [2012] FSR 35 and Sibir Energy Ltd v Tchigirinski & ors [2012] EWHC 1844 should no longer be considered authoritative to the extent that they followed the decision at first instance in this case.
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