Samengo-Turner v J & H Marsh & McLennan (Services) Ltd: [2007] EWCA Civ 723

CA: Tuckey, Longmore and Lloyd LJJ: 12 July 2007

The claimants, who were domiciled in the United Kingdom, were employed as re-insurance brokers by the first defendant, an English company belonging to a group of companies of which the second defendant, based in New York, was also a member and the third defendant, also based in New York, was the holding company. The claimants each gave the first defendant six months' notice to terminate their contracts of employment and disclosed that they intended to work for a competitor. A month later the second and third defendants instituted proceedings in New York, founded on the terms of an incentive award under which the claimants assumed obligations to repay the award if they engaged in detrimental activity, requiring the claimants to provide information to enable the company to determine whether they had complied with the terms of the award. The claimants applied to the High Court in England for an interim anti-suit injunction to restrain the New York proceedings, asserting that those proceedings related to individual contracts of employment and had been brought by their employer, so that Section 5 of Chapter II to Council Regulation (EC) 44/2001 required the proceedings to be brought only in the courts of their domicile. The judge found that the proceedings did not relate to "individual contracts of employment" for the purposes of article 18 of the Regulation, nor had the proceedings been brought by the claimants' "employer", so that article 20(1) did not apply, and Section 5 was not engaged. Having so found, the judge declined to grant the injunction sought.

The claimants appealed.

The Court of Appeal held:
(1) In the present case, the question under article 18 of Council Regulation (EC) 44/2001, was simply whether the claim was based on a contract of employment. Such a contract need not be in a single document or made at one time, and an agreement varying or adding to the terms of an earlier contract of employment would obviously become part of that contract even if on its own it did not contain all the terms one would expect. The bonus agreement, on which the claim in New York was based, in referring to the award as an incentive to remain with the group and as being subject to the claimants' continued employment, clearly was part of the claimants' contracts of employment for the purposes of article 18(1).
(2) While as a matter of English law the first defendant was the claimants' employer and the second and third defendants were not, the question of whether the second and third defendants should be regarded as employers for the purposes of Section 5 of Regulation 44/2001 had to be considered with the fact that their claim in New York was a claim relating to a contract of employment brought against English employees, and since they were only able to sue as if they were employers because of a wide definition given to "the company" in the bonus agreement, it was right that they should be regarded as employers for the purposes of article 20(1). Accordingly, Section 5 of the Regulation was engaged and it was open to the court, if appropriate, to grant an anti-suit injunction.
(3) The question whether to grant an injunction in the instant case arose in circumstances where the exclusive jurisdiction of the English court was mandated by statute, rather than on the basis of an exclusive jurisdiction clause or forum conveniens, but the New York court could not give effect to Regulation 44/2001 and the only way to give effect to the claimants' statutory rights was to restrain the proceedings in New York by way of an anti-suit injunction.

The appeal was allowed.

Appearances: Graham Dunning QC and Claire Blanchard (Elborne Mitchell) for the claimants; Murray Rosen QC and Andrew Lenon QC (Herbert Smith) for the defendants.