The Court of Appeal has rejected a jurisdiction challenge and upheld the grant of summary judgment in proceedings claiming damages for the commencement of Italian proceedings in breach of exclusive English jurisdiction clauses: Barclays Bank Plc v Ente Nazionale di Previdenza ed Assistenza Dei Medici e Degli Odontoiatri [2016] EWCA 1261.

A contracting party does not always respect the jurisdiction clause in its contract, where it thinks there may be an advantage in bringing proceedings in another jurisdiction. It is well established that, where that other jurisdiction is another EU Member State, the English court cannot issue an anti-suit injunction to prevent the counterparty continuing with those proceedings. However, as this decision illustrates, the wronged party may bring proceedings in the chosen court seeking damages for the breach of the jurisdiction clause, and the chosen court may grant judgment on a summary basis.

The decision is also of interest in demonstrating that, where proceedings are amended to introduce a new claim which is the same as a claim already brought in another EU Member State, the question of which court is first seised will be determined by reference to when the relevant claim is brought, not the proceedings as a whole. So in this case, although the Italian proceedings were first in time, the English court was first seised of a claim that had been added to the Italian proceedings by amendment.

This decision may not, however, be the last word on all of these issues. These are controversial questions on which opinions differ and further guidance from the Supreme Court, and possibly the CJEU, is likely.

Background

In 2007 Barclays and the defendant, an Italian pension fund, entered into a number of investment agreements which contained English jurisdiction clauses. In June 2014, the defendant began tort proceedings in Milan alleging it was misled by Barclays staff and that they were acting in contravention of certain Italian financial regulations. In September 2014, Barclays began proceedings in the English Commercial Court seeking damages for breach of the jurisdiction clauses.

As both sets of proceedings were commenced before 10 January 2015, the Brussels I Regulation, rather than the recast Brussels Regulation, applied. Therefore, the question of which court had priority depended on which court was first seised. (Under the recast Brussels Regulation, priority is given to the court chosen in an exclusive jurisdiction clause, regardless of which court is first seised.)

The defendant applied under CPR Part 11 for a declaration that the English court should not exercise its jurisdiction to hear the action and for an order staying the proceedings pursuant to Article 27 or Article 28 of the Brussels I Regulation. Article 27 requires any court other than the court first seised to stay its proceedings until the other court determines whether it has jurisdiction. It applies where the parties and cause of action are the same. Article 28 gives a discretion to any court other than the court first seised to stay its proceedings. It applies where the proceedings are related.

Barclays resisted the jurisdiction challenge and issued its own application seeking summary judgment.

At first instance, the judge (Blair J) held the proceedings were related within Article 28, rather than the same within Article 27, and declined to stay the English proceedings. He also granted summary judgment to Barclays on its claim for a declaration that the Italian proceedings were brought in breach of the jurisdiction agreements.

The defendant appealed the decision. It also expanded its case in the Italian proceedings, alleging that the jurisdiction agreements were invalid and of no effect, and sought to adduce this as evidence in the appeal. It argued that under Italian procedural law, the amendments took effect as from the date of the original claim, and therefore the Italian court was first seised of that claim.

Decision

The Court of Appeal dismissed the appeal (Moore-Bick LJ giving the leading judgment, with which Tomlinson LJ and Arnold J agreed).

When court seised where claim amended

The first issue before the Court of Appeal was whether, at the time the proceedings in London were commenced, the court in Milan was seised, or must be deemed to have been seised, of the new claims.

The case law on when a court is seised of proceedings on amendment (and whether the position differs between Article 27 and Article 28) is not entirely clear. The Court of Appeal decided, after a brief review of the main authorities, that for the purposes of Article 27, the court is not seised of a relevant claim until the cause of action has been raised in the proceedings, so at the date of amendment if that is when it is first introduced in the proceedings. The amendments made to the Italian proceedings after the English judgment were therefore of no relevance in the appeal.

Same cause of action

The next and main issue was whether the London and Milan proceedings concerned the same cause of action within Article 27. The Court of Appeal agreed with the first instance judge that they did not. The proceedings in Milan were directed to the substance of the agreements rather than the jurisdiction clauses, which under usual principles were separable from the agreements in which they were contained. The aim of the Milan proceedings was to recover damages for pre-contractual and extra-contractual liability, or restitution of sums paid, whereas the aim of the London proceedings was to recover damages for breach of the jurisdiction agreements.

Whilst it was common ground that the proceedings were related, the Court of Appeal again agreed that the discretion to stay should not be exercised. The factors militating against a stay were: (1) the existence of the jurisdiction clauses, which had been agreed before the dispute arose: (2) the speed at which the English courts could dispose of the issue; and (3) the way in which the Milan proceedings had been deliberately structured.

Summary judgment

The defendant resisted summary judgment on the grounds that it would pre-empt and therefore interfere with the jurisdiction of the court in Milan to determine the meaning and effect of the jurisdiction clauses. It would therefore infringe the EU principle of mutual trust between the courts of Member States, exemplified in decisions of the CJEU holding that the courts cannot by injunction restrain a party to proceedings in another member state from pursuing them (eg Turner v Grovit [2005] 1 AC 101, West Tankers Inc v Allianz S.p.A [2009] 1 AC 1138).

The Court of Appeal rejected this suggested analogy between ordering summary judgment and granting an anti-suit injunction. The argument had been put forward and rejected by the Supreme Court in The 'Alexandros T' [2014] 2 Lloyd's Rep 544. The court was therefore bound to take the same view and hold that the judge was not precluded from granting summary judgment by considerations of that kind.

This may not, however, be the final word on this point. The defendant sought to rely on exchanges between the Bench and counsel in an appeal currently pending before the Supreme Court AMT Futures Ltd v Marzillier, Dr. Meier & Dr. Gunter Rechtanwaltsgesellschaft m.b.H. [2015] EWCA Civ 143. In that case the Supreme Court indicated that it was minded to refer to the CJEU the question of whether the courts of one Member State should refuse to entertain a claim for damages for bringing proceedings in the courts of another Member State in breach of an exclusive jurisdiction clause. It was not permitted to do so, as the court said it would be wrong in principle for it to have regard to statements of judicial opinion by other judges in the course of argument in other proceedings, but clearly it will be interesting to see what happens in the AMT Futures case where judgment is awaited.