Does art. 4(1) of Brussels I (Recast) confer a right enforceable by an anti-suit injunction?

In this blog post, Elizabeth Boulden of 12 King’s Bench Walk looks at the recent case of Gray v Hurley [2019] EWCA Civ 2222. This explores the interesting question of whether art. 4(1) of Brussels I (Recast) gives rise to an enforceable right which obliges a court to grant an anti-suit injunction to prevent a party from litigating against an EU-domiciled person in a non-EU Member State.

In summary, Ms Gray appealed against the refusal of an anti-suit injunction to prevent Mr Hurley from bringing proceedings against her in New Zealand. Ms Gray argued that, pursuant to art. 4(1), she had an enforceable right to be sued in the UK, this being the place of her domicile. The court ultimately decided to refer the matter to the CJEU for a preliminary ruling because the meaning and applicability of art. 4(1) were not acte clair.

Background

This is not a personal injury or insurance matter, but rather a case arising out of the separation of parties after a relationship had ended. Ms Gray and Mr Hurley had been in a romantic relationship between March 2013 and January 2019, having met in London in 2009 when Mr Hurley worked there as a physical therapist. She had previously separated from her husband in 2013 and divorced in 2015, and, following heavily contested financial proceedings, had emerged with half of the matrimonial assets (a value of around US$120 million).

Whilst a couple, Ms Gray and Mr Hurley had a lavish international lifestyle which was funded entirely by Ms Gray. Ms Gray’s money was used to purchase, inter alia, certain assets (“the named assets”), which included properties, cars and business investments. The named assets were put in Mr Hurley’s name, their joint names or in corporate names. However, in February 2019, Ms Gray’s solicitors started to pursue her rights to the named assets, following her ending the relationship in January 2019.

Mr Hurley then began proceedings in New Zealand under the Property (Relationships) Act 1976, claiming for the named assets as well as other items purchased during the relationship.

History of the Litigation

Ms Gray started High Court proceedings on 26 March 2019 for a declaration that she was entitled absolutely to the named assets, or that the named items were held on resulting trust, or for restitution of the named items by reason of undue influence. Service was deemed to have occurred on 28 March 2019, following Ms Gray obtaining an order for alternative service via WhatsApp and other means. Subsequently, there was a “welter of applications” [paragraph 16] by both parties, including Ms Gray’s application for an anti-suit injunction to restrain Mr Hurley from pursuing the New Zealand proceedings.

She relied on art. 4(1) of the Brussels Recast Regulation, which states that “[s]ubject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”

The case went before Lavender J twice, with judgments given on 25 June 2019 ([2019] EWHC 1636 (QB)) and 23 July 2019 ([2019] EWHC 1972 (QB)). Lavender J accepted Ms Gray’s argument that the applicable law was English law and he determined that Ms Gray was domiciled in England. Despite the Mr Hurley’s contentions that he was and always had been domiciled in New Zealand, in the first judgment Lavender J considered that there was a good arguable case for Mr Hurley being domiciled in England up until January 2019.

In the second judgment, Lavender J dismissed Ms Gray’s application for an anti-suit injunction. He was guided by the principles laid out by Toulson LJ at paragraph 50 of Deutsche Bank AG v Highland Crusader Offshore Partners LP [2010] 1 WLR 1023. He dismissed Ms Gray’s arguments that he was bound by precedent, and that a ‘breach’ of art. 4(1) was at least a significant factor in the exercise of his discretion. Lavender J noted that England was the appropriate forum for trying Ms Gray’s claims although Mr Hurley’s claim in New Zealand could not be determined in England. He did not accept that there was no material connection between the parties and New Zealand, and he did not consider that it would be unconscionable or illegitimate to pursue the New Zealand claims. He recognised the role of comity and that it was still open to a New Zealand court to decline to entertain Mr Hurley’s application, either on the basis that he was not domiciled in New Zealand or for some other reason. The judge also noted that an anti-suit injunction would not mean that Mr Hurley would need to bring his claim elsewhere, but rather that Mr Hurley would be prevented from bringing his claim at all.

Issues on Appeal

Lavender J granted permission to appeal on two grounds:

  • Whether Lavender J was wrong that art. 4(1) did not require the grant of an anti-suit injunction – i.e. as a matter of law, did art. 4(1) oblige the court to grant an anti-suit injunction to prevent the Mr Hurley from litigating against Ms Gray in a third (non-EU) State?
  • Whether Lavender J was wrong that art. 4(1) was not a significant factor in the exercise of discretion as to whether to grant an anti-suit injunction.

Decision

In the judgment delivered by Peter Jackson LJ, the Court of Appeal rejected Ms Gray’s argument that it was bound to grant the anti-suit injunction by its previous decisions in Samengo-Turner v J & H Marsh McLennan (Services) Ltd [2007] EWCA Civ 723 and Petter v EMC Europe Ltd [2015] EWCA Civ 828.

Those cases considered what is now art. 22(1) of Brussels I (Recast). That provision specifically addresses individual contracts of employment, stating that “[a]n employer may bring proceedings only in the courts of the Member State in which the employee is domiciled.” The Court of Appeal did not accept that the reasoning in those cases extended beyond art. 22(1) to cases which fell under art. 4(1). The proposed broader interpretation of Samengo-Turner and Petter was not accepted for various reasons, including:

  • The courts in Samengo-Turner and Petter were never required to turn their minds to the question of whether or not art. 4(1) imposes an exclusive jurisdiction, or whether the findings on art. 22(1) extended beyond employment cases – the general jurisdictional regime of Article 4 was not considered in these cases and the point contended for was not argued in these cases.
  • The wording of art. 22 makes clear that there is exclusive jurisdiction in employment situations, whereas the wording of art. 4(1) was not similarly clear.
  • Samengo-Turner and Petter did not look at the question of why arts. 22(1) and 4(1) ought to offer the same protection, when Recital 18 of the Brussels Recast Regulation states that there should be “rules of jurisdiction more favourable to [an employee’s] interests than the general rules”, and when art. 22(1) contains the word “only” whilst art. 4(1) does not.
  • The decisions in Samengo-Turner and Petter were firmly situated in the law relating to employment contracts. Employment contracts, dealt with in Section 5 of the Brussels Recast Regulation, have specific characteristics justifying specific treatment in this Section. There would be different considerations for the much wider range of civil and commercial matters covered by Section 1 of the Regulation, where art. 4 is located.
  • Samengo-Turner and Petter were cases involving a choice of jurisdiction in which to litigate the same cause of action, and neither these cases, nor Brussels I (Recast), addressed a situation where the cause of action in the third State litigation could not be pursued in the Member State of the defendant’s domicile. It was unclear whether the Regulation, as a whole, contemplated that situation.

The court therefore did not accept that art. 4(1) necessarily gave Ms Gray an exclusive right to be sued in England. While the court considered that this was a possible interpretation, it was not one which they would wish to adopt unless they were required to do so, because it would lead to extreme results not contemplated by an application of domestic law.

The judgment noted in this respect the principle that, where there is a choice of two jurisdictions for a remedy, English courts will not grant an anti-suit injunction unless the foreign court proceedings are vexatious or oppressive (Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC)). Further, as per British Airways Board v Laker Airways Ltd [1985] AC 58, for “single forum cases” in which the respondent to an anti-suit injunction application would be precluded from bringing proceedings elsewhere if the injunction was granted, an anti-suit injunction could only be ordered if bringing the foreign proceedings was, in the circumstances, so unconscionable as to be regarded as the infringement of an equitable right.

The court held that accessible and harmonious justice, as per the aim of the Regulation, was not promoted by prioritising certainty in a case where there was, in reality, no choice of jurisdiction. The court opined at paragraph 52 of the judgment that such a “severe inroad into the important principle of comity” which had “the effect of neutralising the statutory provisions of a foreign state” would be expected to be explicitly addressed in Brussels I (Recast).

However, the court was of the view that the meaning of Article 4(1) was not acte clair, and therefore referred the matter to the CJEU for a preliminary ruling on the following issues:

  1. Does art. 4(1) confer a directly enforceable right upon a person domiciled in a Member State?
  2. If it does: (a) Where such a right is breached by the bringing of proceedings against that person in a third State, is there an obligation upon the Member State to provide a remedy, including by the grant of an anti-suit injunction? (b) Does any such obligation extend to a case where a cause of action available in the courts of a third State is not available under the law applicable in the courts of the Member State?

Comment

This case is interesting both for the questions of principle concerning the proper functioning of and relationship between the various provisions of Brussels I (Recast) and for the considerable practical importance of the question of whether an EU-domiciled individual is entitled in effect to compel any litigation against them to be brought in the place of their domicile where the alternative is litigation in a non-EU Member State. The potential implications of the CJEU’s determination of this issue extend far beyond the matrimonial assets dispute that this case concerned.

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