Lis pendens under Brussels I (Recast): two recent cases

In this blog post, Lizzie Boulden considers two recent cases applying the lis pendens provisions of Brussels I (Recast). They are: The Federal Republic of Nigeria v Royal Dutch Shell Plc and Ors [2020] EWHC 1315 (Comm) and Awendale Resources Incorporated v Pyxis Capital Management Ltd [2020] EWHC 1286 (Ch).

It will be recalled that, under art. 29 of Brussels I (Recast), the court must of its own motion stay its proceedings where proceedings “involving the same cause of action and between the same parties are brought in the courts of different Member States.” The key points arising from the two new cases are as follow:

  • The starting point in considering lis pendens under art. 29 remains the comprehensive guidance of Lord Clarke in The ‘Alexandros T’ [2013] UKSC 70. This important guidance is set out in full below.
  • The fact that the parallel proceedings involve slightly different constellations of parties does not affect the analysis of whether there exists a lis pendens in respect of any two of those parties.
  • Two technically separate legal entities will, in certain circumstances, be considered “the same parties” for the purposes of the lis pendens rules.
  • If the parties are the same, the question then becomes whether the basic facts and basic claimed rights in the two sets of proceedings are the same when “due allowance” is given for any minor differences between proceedings brought in different national courts.
  • Although art. 29 requires the court to stay the proceedings “of its own motion”, it can apparently decline to do so where a defendant has failed to make a timely request for a stay under CPR r. 11(4) (although Lord Clarke did not think that this approach was “acte claire” in The ‘Alexandros T’ [2013] UKSC 70).
  • A defendant’s request for an extension of the time limit under CPR r. 11(4) will be dealt with under the court’s general powers of case management and not as an application for relief from sanctions (but contrast the approach in Lackey v Mallorca Mega Resorts and Anor [2019] EWHC 1028 (QB), which we blogged about here).
  • In considering such an application, the risk of irreconcilable judgments in different EU Member States seised with proceedings falling under art. 29 will be a strong reason for granting an extension of time for compliance with CPR r. 11(4).
    Continue reading “Lis pendens under Brussels I (Recast): two recent cases”

UK post-Brexit Lugano accession thrown into doubt

This blog is by Spencer Turner of 12 King’s Bench Walk.

The UK Government has outlined its intention to accede to the Lugano Convention post-Brexit. Accession to the Convention would preserve the essentials of the current regime, in that it would provide for a reciprocal arrangement under which English and other European courts would apply a common set of jurisdictional rules. Some of the benefits of Brussels I (Recast) would be lost (we may see the return of the ‘Italian torpedo’ because the Lugano Convention does not accord primacy to exclusive jurisdiction agreements, for example) but accession to the Lugano Convention would provide a degree of legal certainty, predictability of outcome, and definite relief for practitioners and parties.

Earlier in January 2020, Norway, Iceland and Switzerland sounded their support for the UK’s plan to join the Lugano Convention and, on 8 April 2020, the UK submitted its formal application to accede to the Convention. The obvious potential speed bump for the UK is that in order to accede to the Convention there will have to be unanimous consent of all the other contracting parties. Easier said than done. Continue reading “UK post-Brexit Lugano accession thrown into doubt”

Italian torpedo still applies to Lugano proceedings

The UK recently formally requested accession to the Lugano Convention. This is likely to represent the touchstone for English jurisdiction in the near future. How timely, then, is the judgment of Waksman J last week in Mastermelt Ltd v Siegfried Evionnaz SA [2020] EWHC 927 (QB), which neatly highlights one of the persisting deficiencies of that scheme? Continue reading “Italian torpedo still applies to Lugano proceedings”

Supreme Court rules on “weaker party” in cross-border insurance claims

Although the Supreme Court’s rulings on vicarious liability and surrogacy costs may have stolen the limelight yesterday, eagle-eyed readers will have spotted the important jurisdiction decision in Aspen Underwriting Ltd & Ors v Credit Europe Bank NV [2020] UKSC 11. The Supreme Court, in overruling the Court of Appeal, made important comments on identification of the “weaker party” for the purposes of the insurance provisions of the Brussels Regulations. Continue reading “Supreme Court rules on “weaker party” in cross-border insurance claims”

Jurisdiction – what next?

The “Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community” has been given effect in the UK by the European Union (Withdrawal Agreement) Act 2020. The Withdrawal Agreement is being voted on by the European Parliament today. It must also be approved by the Council of the EU.

Assuming it is approved, jurisdiction will be covered by art. 67(1) of the Withdrawal Agreement. Broadly speaking, this provides for:

  1. The continued application of Brussels I (Recast) to legal proceedings in the UK and in Member States involving the UK “instituted before the end of the transition period”.
  2. The continued application of Brussels I (Recast) to legal proceedings which, although not instituted before the end of the transition period, “are related to such proceedings” pursuant to the lis pendens provisions in arts. 29–31 of Brussels I (Recast).

Article 126 of the Withdrawal Agreement provides that the transition period will run until 31 December 2020 (subject to the possibility of extension of the transition period under art. 132).

Article 67(2)(a) covers the recognition and enforcement of judgments. This provides that “[i]n the United Kingdom, as well as in the Member States in situations involving the United Kingdom” Brussels I (Recast) will continue to apply to judgments “given in legal proceedings instituted before the end of the transition period”.

The UK has also received statements of support from Norway, Iceland, and Switzerland for the UK’s intent to accede in its own right to the Lugano Convention 2007 with effect from the end of the transition period (31 December 2020). We previously wrote about the difficulties that could arise if any of the signatories objected to the UK’s accession to the treaty. The Lugano Convention will continue to apply during the transition period.

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

Expert foreign law evidence in jurisdiction disputes: ask for permission first

In Gulf International Bank BSC v Aldwood [2019] EWHC 1666 (QB), John Kimbell QC (sitting as a High Court Judge) gave some brief practical guidance on the proper approach to expert foreign law evidence in jurisdictional disputes. This arose in the context of a multi-million pound claim based on a personal guarantee signed by the Defendant. Continue reading “Expert foreign law evidence in jurisdiction disputes: ask for permission first”