"The object of Mr. Kalfelis's action is to obtain an order that the defendants, as jointly and severally liable for the debt, should pay him DM 463 019.08 together with interest. His claim is based on contractual liability for breach of the obligation to provide information, on tort, pursuant to Paragraph 823 (2) of the Bürgerliches Gesetzbuch (Civil Code) in conjunction with Paragraph 263 of the Strafgesetzbuch (Criminal Code) and Paragraph 826 of the Bürgerliches Gesetzbuch, since the defendants caused him to suffer loss as a result of their conduct contra bonos mores. He also alleges unjust enrichment, on the ground that futures stock-exchange contracts, such as futures transactions in silver bullion, are not binding on the parties by virtue of mandatory provisions of German law and therefore reclaims the sums which he paid over."

      Moreover in Kalfelis v. Schröder the court observed at pp. 5585, 5586 that Articles 5 and 6 should be interpreted restrictively and that a plaintiff is always entitled to bring his action in its entirety before the courts of the domicile of the defendant:

 "With respect to the second part of the question, it must be observed, as already indicated above, that the 'special jurisdictions' enumerated in Articles 5 and 6 of the Convention constitute derogations from the principle that jurisdiction is vested in the courts of the State where the defendant is domiciled and as such must be interpreted restrictively. It must therefore be recognized that a court which has jurisdiction under Article 5(3) over an action in so far as it is based on tort or delict does not have jurisdiction over that action in so far as it is not so based. Whilst it is true that disadvantages arise from different aspects of the same dispute being adjudicated upon by different courts, it must be pointed out, on the one hand, that a plaintiff is always entitled to bring his action in its entirety before the courts for the domicile of the defendant and, on the other, that Article 22 of the Convention allows the first court seised, in certain circumstances, to hear the case in its entirety provided that there is a connection between the actions brought before the different courts."

      In Somafer v. Saar-Ferngas [1978] E.C.R. 2183, in referring to the words of Article 5(5) of the Brussels Convention the European Court also stated that in interpreting Article 5 a wide and multifarious interpretation of the exceptions to the general rule of jurisdiction contained in Article 2 must be avoided, and the Court said at page 2191:

 "Their function in the context of the Convention must be decided in relation to the general rule conferring jurisdiction contained in Article 2(1) of the Convention which states 'Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State.' Although Article 5 makes provision in a number of cases for a special jurisdiction, which the plaintiff may choose, this is because of the existence, in certain clearly-defined situations, of a particularly close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings. Multiplication of the bases of jurisdiction in one and the same case is not likely to encourage legal certainty and the effectiveness of legal protection throughout the territory of the Community and therefore it is in accord with the objective of the Convention to avoid a wide and multifarious interpretation of the exceptions to the general rule of jurisdiction contained in Article 2. This is all the more so since in national laws or in bilateral conventions the similar exception is frequently due, as the United Kingdom rightly points out in its written observations, to the notion that a national State serves the interests of its nationals by offering them an opportunity to escape the jurisdiction of a foreign court and this consideration is out of place in the Community context, since the justification for the exceptions contained in Article 5 to the general rule of jurisdiction in Article 2 is solely in the interests of due administration of justice."

      The second limb of Article 5(1) is worded "in the courts for the place of performance of the obligation in question." I consider that these words help to define the meaning of the words "in matters relating to a contract". The European Court has held that "the obligation in question" is a contractual obligation; it is an obligation arising under the contract which the plaintiff is seeking to enforce. Accordingly the wording of the second limb as interpreted by the European Court leads to the conclusion that it is only where a party is seeking to enforce the performance of an obligation contained in a contract (or of an obligation arising from a relationship closely akin to a contract such as membership of an association: see Peters v. ZNAV [1983] E.C.R. 987 referred to later in this judgment) that the action can be brought in the place of performance of that obligation, rather than in the domicile of the defendant. In de Bloos v. Bouyer [1976] E.C.R. 1497 the European court stated at pp. 1508, 1509:

 "As stated in its preamble, the Convention is intended to determine the international jurisdiction of the courts of the contracting States, to facilitate the recognition and to introduce an expeditious procedure for securing the enforcement of judgments.

 "These objectives imply the need to avoid, so far as possible, creating a situation in which a number of courts have jurisdiction in respect of one and the same contract.

"Because of this, Article 5(1) of the Convention cannot be interpreted as referring to any obligation whatsoever arising under the contract in question.


  "On the contrary, the word 'obligation' in the article refers to the contractual obligation forming the basis of the legal proceedings.


 "This interpretation is, moreover, clearly confirmed by the Italian and German versions of the article.


 "It follows that for the purposes of determining the place of performance within the meaning of Article 5, quoted above, the obligation to be taken into account is that which corresponds to the contractual right on which the plaintiff's action is based.


 "In a case where the plaintiff asserts the right to be paid damages or seeks a dissolution of the contract on the ground of the wrongful conduct of the other party, the obligation referred to in Article 5(1) is still that which arises under the contract and the non-performance of which is relied upon to support such claims.


 "For these reasons, the answer to the first question must be that, in disputes in which the grantee of an exclusive sales concession charges the grantor with having infringed the exclusive concession, the word 'obligation' contained in Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters refers to the obligation forming the basis of the legal proceedings, namely the contractual obligation of the grantor which corresponds to the contractual right relied upon by the grantee in support of the application."

      In Handte v. Traitements Mécano-Chimiques des Surfaces [1992] E.C.R. I-3967 the Court stated at pages 3994, 3995:

 "The rules on special and exclusive jurisdiction and those relating to prorogation of jurisdiction thus derogate from the general principle, set out in the first paragraph of Article 2 of the Convention, that the courts of the Contracting State in which the defendant is domiciled are to have jurisdiction. That jurisdictional rule is a general principle because it makes it easier, in principle, for a defendant to defend himself. Consequently, the jurisdictional rules which derogate from that general principle must not lead to an interpretation going beyond the situations envisaged by the Convention.

 "It follows that the phrase 'matters relating to a contract', as used in Article 5(1) of the Convention, is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another.


 "Where a sub-buyer of goods purchased from an intermediate seller brings an action against the manufacturer for damages on the ground that the goods are not in conformity, it must be observed that there is no contractual relationship between the sub-buyer and the manufacturer because the latter has not undertaken any contractual obligation towards the former."

      In Custom Made Commercial v. Stawa Metallbau [1994] E.C.R. I-2913 the Court stated at page 2957:

 "It follows that under Article 5(1), in matters relating to a contract, a defendant may be sued in the courts for the place of performance of the obligation in question, even where the court thus designated is not that which has the closest connection with the dispute.

 "It is accordingly necessary to identify the 'obligation' referred to in Article 5(1) of the Convention and to determine its 'place of performance'.


 "The Court has ruled that the obligation cannot be interpreted as referring to any obligation whatsoever arising under the contract in question, but is rather that which corresponds to the contractual right on which the plaintiff's action is based (see Case 14/76 de Bloos v. Bouyer [1976] ECR 1497, paragraphs 10 and 13).


 "Having allowed an exception in the case of contracts of employment presenting certain special features (see, in particular, Case 133/81 Ivenel v. Schwab [1982] ECR 1891), in paragraph 20 of its judgment in Shenavai, cited above, the Court confirmed that the obligation referred to in Article 5(1) is the contractual obligation which forms the actual basis of the legal proceedings."

      A further consideration referred to by the European Court is that the reason why under Article 5(1) a court for the place of performance of the contractual obligation is given jurisdiction is that the bringing of an action in such a court will enable the action to be brought in an efficacious way and the place of performance of the contractual obligation will be the place where the case can conveniently be heard. In Bier v. Mines de Potasse d'Alsace [1976] E.C.R. 1735 the court stated at pages 1745, 1746 that the scheme of conferment of jurisdiction contained in Title II of the Convention:

 "is based on a general rule, laid down by Article 2, that the courts of the State in which the defendant is domiciled shall have jurisdiction.

 "However, Article 5 makes provision in a number of cases for a special jurisdiction, which the plaintiff may opt to choose.


 "This freedom of choice was introduced having regard to the existence, in certain clearly defined situations, of a particularly close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings."

      However in the present case this consideration is not applicable and the "particularly close connecting factor" between the dispute and the English court does not exist, because the action is brought, not to enforce a contract to be performed in England, but to recover monies which are repayable to the plaintiff because the contract never existed and because the plaintiff cannot seek to enforce it. In this case where Kleinwort Benson is suing Glasgow, domiciled in Scotland, for the repayment of monies unjustly retained by Glasgow, there is no "particularly close connecting factor" between the dispute and the court in England, which justifies departure from the general principle the defendant should be sued in the place of its domicile.

      The judgments relied on by Mr. Pollock do not, in my opinion, lead to the conclusion that the present action brought by Kleinwort Benson comes within the scope of Article 5(1). Mr. Pollock cited the judgment of the European Court in Peters v. ZNAV [1983] E.C.R. 987 at pages 1002 and 1003:

 "In that context, the designation by Article 5(1) of the Convention of the courts for the place of performance of the obligation in question expresses the concern that, because of the close links created by a contract between the parties thereto, it should be possible for all the difficulties which may arise on the occasion of the performance of a contractual obligation to be brought before the same court: that for the place of performance of the obligation.

 "In that regard it appears that membership of an association creates between the members close links of the same kind as those which are created between the parties to a contract and that consequently the obligations to which the national court refers may be regarded as contractual for the purpose of the application of Article 5(1) of the Convention. . . .


 "It should be noted that multiplication of the bases of jurisdiction in one and the same type of case is not likely to encourage legal certainty and effective legal protection throughout the territory of the Community. The provisions of the Convention should therefore be interpreted in such a way that the court seised is not required to declare that it has jurisdiction to adjudicate upon certain applications but has no jurisdiction to hear certain other applications, even though they are closely related. Moreover, respect for the purposes and spirit of the Convention requires an interpretation of Article 5 which enables the national court to rule on its own jurisdiction without being compelled to consider the substance of the case."

      This judgment shows that the words of Article 5(1) can include a consensual relationship between an association and its members which, as Hirst J. observed at first instance, "was manifestly very closely akin to an actual contract," but I do not consider that a claim based on unjust enrichment can be regarded as contractual in the same way as the close links and obligations created by membership of an association were regarded as being contractual in that case.

      Mr. Pollock also relied on the judgment of Mr. Moore-Bick Q.C. in DR Insurance Co. v. Central National Insurance Co. [1996] 1 Lloyd's Rep. 74 where the learned Deputy Judge was considering the words of Order 11 Rule 1(1)(d) of the Rules of the Supreme Court in relation to a claim brought to "enforce, rescind, dissolve, annul or otherwise affect a contract . . .". Mr. Moore-Bick stated at pages 79, 80: