Supreme Court holds English court has jurisdiction over tort claim where conspiracy hatched in England

The Supreme Court has held that the place of the event giving rise to damage in a claim alleging the tort of conspiracy to injure by unlawful means is where the conspiratorial agreement was made. As that was England, the English courts had jurisdiction: JSC BTA Bank v Khrapunov [2018] UKSC 19.

More generally, the decision confirms that when looking for the place of the event giving rise to damage, the court should focus on the events which set the tort in motion.

The decision is also of interest for its consideration of what amounts to unlawful means for the purposes of the tort of conspiracy to injure by unlawful means. That part of the decision will be considered in a separate blog post to be published shortly.

The Supreme Court's decision upholds the Court of Appeal's decision on both issues. For our earlier posts on the Court of Appeal's decision see here and here.

Background

The Supreme Court's decision is part of the long-running saga of litigation between the Bank and its former chairman, Mr Ablyazov, and his associates. The Bank has judgments against Mr Ablyazov in excess of US$4.6 billion in relation to alleged misconduct whilst he was the chairman and controlling shareholder. Very little has been recovered.

These proceedings concern a claim by the Bank against Mr Ablyazov's son in law, Mr Khrapunov, for the tort of conspiracy to injure the Bank by unlawful means. It is alleged that Mr Khrapunov conspired with Mr Ablyazov to hide Mr Ablyazov's assets from the Bank or dissipate them in breach of an English worldwide freezing order and receivership order. The unlawful means relied on are serial breaches of the freezing and receivership order.

Mr Ablyazov lived in England between 2008 and February 2012 when he fled the jurisdiction to avoid being committed to prison for contempt of court. His current whereabouts are unknown. Mr Khrapunov is domiciled in Switzerland. Whether the court had jurisdiction against Mr Khrapunov therefore depended upon the terms of the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 339/3 of 21.12.07).

The Court of Appeal held that breaches of a court order qualified as unlawful means for the purposes of the tort of conspiracy by unlawful means. It also held, overturning the judge at first instance, that the place of the event giving rise to damage for the purposes of jurisdiction over a tort claim was where the conspiracy was hatched, ie England, not where the conspiracy was implemented. The English court therefore had jurisdiction on this basis.

Permission to appeal to the Supreme Court was granted in respect of these findings.

Decision

The Supreme Court dismissed the appeal, Lords Sumption and Lloyd-Jones giving the decision of the court, with which Lords Mance, Hodge and Briggs agreed.

The court began by setting out the principles so far as jurisdiction in tort claims is concerned:

• Article 5 of the Lugano Convention permits a person domiciled in a member state, such as Switzerland, to be sued in another member state, such as England, in matters relating to tort in the courts for the place where the harmful event occurred.
• This is substantially identical to the tort jurisdiction ground in the recast Brussels Regulation (and the Brussels I Regulation and Brussels Convention which preceded the recast Regulation).
• This jurisdiction ground has been interpreted as giving a claimant the option of suing either in the courts for the place where the damage occurred, or in the courts for the place of the event giving rise to the damage.
• The place of the event giving rise to damage is subject to an autonomous interpretation to ensure its effectiveness and uniform application in all EU and Lugano member states.
• The component elements of the cause of action under national law are relevant, however, in defining the legally relevant conduct and therefore the acts which fall to be located. So, taking an example given in the hearing, if a firearm is manufactured in State A and fired in State B, the place of the event giving rise to damage is likely to differ depending on whether the basis of the complaint is negligent manufacture or negligent handling by the gunman.

The Supreme Court then went on to consider the decisions of the CJEU, noting that they emphasised the notion of the originating event when considering where the harmful event occurred. So in Shevill v Presse Alliance SA (Case C-68/93) [1995] 2 AC 18, a case involving libel by a newspaper article distributed in several contracting states, the place of the harmful event was where the publisher was based as that was where the libel was issued and put into circulation. In Hejduk v EnergieAngentur NRW GmbH (Case C-441/13) [2015] Bus LR 560, a case involving alleged infringement of copyright by placing photographs on a website, it was where defendant had its seat, as that is where it took and carried out the decision to place the photographs on the website. In Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV (Case C-352/13) [2015] QB 906, it was the place of formation of the cartel and not where it was implemented.

So far as English decisions were concerned, Rix J had accurately stated the law in Domicrest Ltd v Swiss Bank Corpn [1999] QB 548, where he held that in a case of negligent mis-statement the place of the event giving rise to damage was where the statement originated, rather than where it was received and relied on. The court noted that his reasoning and conclusions had been expressly approved by the Court of Appeal and applied in a series of first instance decisions.

Overall, the emphasis was on the harmful event which sets the tort in motion and in this case that was the making of the conspiratorial agreement in England.