Recent guidance on “good arguable case” test in jurisdiction challenges

In Generali Italia SPA & Ors v Pelagic Fisheries Corporation & Anor [2020] EWHC 1228 (Comm), Foxton J considered proceedings brought by insurers for declarations that they were not liable to their insureds under certain policies of insurance. The insureds challenged the English court’s jurisdiction on the basis that they had already brought their own parallel proceedings against several of the insurers in Italy.

The insurers countered that the relevant insurance policies were subject to exclusive English jurisdiction clauses. The insureds disagreed; they said that the insurance policies contained clauses giving jurisdiction to the courts of either England or Italy. They argued on that basis that the English court should stay its proceedings in order to allow the Italian proceedings to progress.

Foxton J’s judgment contains useful guidance on how the courts will now apply the “good arguable case” test in jurisdiction challenges following Brownlie v Four Seasons Holdings Inc [2017] UKSC 80. It also has an interesting analysis of the circumstances in which the Brussels I (Recast) “Italian Torpedo” provisions will apply.

“Good arguable case”: some useful guidance

At [9]–[11], Foxton J gave a summary of the “good arguable case” test for jurisdiction challenges as refined by the Supreme Court and the Court of Appeal in recent decisions:

“I was referred to the helpful recent guidance given by the Court of Appeal on the application of the “good arguable case” test in the jurisdictional context in Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV and others [2019] EWCA Civ 10. Green LJ reviewed the recent authorities which had considered the question, including the decisions of the Supreme Court in Brownlie v Four Seasons Holdings Inc [2017] UKSC 80 and Goldman Sachs International v Novo Banco SA [2018] UKSC 34. He noted (at [70]-[71]) that it is clear in the light of Goldman Sachs that there is a three-limb test:

i) The claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway.

ii) If there is an issue of fact about the gateway, or some other reason for doubting it applies, the court must take a view on the material available, if it can reliably do so.

iii) The nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.

Green LJ also gave guidance as to the practical application of that three-limb test:

i) The “plausible evidential basis” in limb (i) is a reference to “an evidential basis showing that the claimant has the better argument” ([73]), but that is something other than the balance of probabilities ([75]).

ii) Limb (ii) is an instruction to the court “to seek to overcome evidential difficulties and arrive at a conclusion if it reliably can”, using “judicial common sense and pragmatism” ([78]).

iii) Limb (iii) addresses the position where the court is unable to form a conclusion on the evidence before it, and is therefore unable to determine who has the better of the argument ([79]).

iv) For the purposes of establishing jurisdiction under Article 25 of Brussels I Recast, it is necessary for the court to consider whether it has been “clearly and precisely demonstrated” that “the clause conferring jurisdiction … was in fact the subject of consensus between the parties”. In an Article 25 case, the “clear and precise” test provides “at least an indication of the quality of the evidence required” to establish a good arguable case ([83]).

On this last issue I was also referred to the judgment of Mr Justice Jacobs in Etihad Airways PJSC v Flöther [2019] EWHC 3107 (Comm), [55], where he noted that the “clear and precise” test does not impose some heightened burden on a claimant seeking to establish jurisdiction by reference to a choice-of-court agreement beyond that arising under the “good arguable” case test set out in the English authorities.”

The Italian Torpedo provisions of Brussels I (Recast)

The general rule governing lis pendens is that any court subsequently seised is required to stay its proceedings to await a decision on jurisdiction by the court first seised. However, Brussels I (Recast) introduced an important qualification to that rule: where the proceedings fall within the scope of an exclusive choice of court agreement, the chosen court has priority if it there is a prima facie case that it has jurisdiction by virtue of arts. 29(1) and 31(2): Ablynx NV and another v VHsquared Ltd [2019] EWCA Civ 2192 at [73]. We noted in a previous blog that this qualification does not apply to proceedings governed by the Lugano Convention.

However, the special rule only applies where the jurisdiction clause is said to be exclusive. The insureds’ argument in the case being considered by Foxton J was that the jurisdiction clauses were non-exclusive: they said that the courts of either England or Italy could be validly seised. Foxton J concluded that this meant that art. 31(2) provided no basis for the English court to stay its proceedings in favour of the Italian proceedings. He went on to find that there was a good arguable case that the insurance policies contained exclusive English jurisdiction clauses; on that basis, the insureds’ request for a stay of the English proceedings was rejected.

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