In Kolden Holdings Limited v Rodette Commerce Ltd and another – Butterworths 21.1.08 the question was whether the English court was first seised of an action where English proceedings were brought in the name of one company, proceedings were brought against an associated company in Cyprus and then (following an assignment of the rights in the agreements that were the subject of the dispute to the associated company) the English court gave permission for that associated company to be substituted as claimant in the English proceedings.
Issues arose as to: (i) the critical date for determining when proceedings between the same parties were brought in the courts of different member states and whether art 27 applied where the assignee had become a party to the first set of proceedings only after the second proceedings had been commenced; and (ii) when, if at all, an assignee was to be regarded as the same party as an assignor.
The Court of Appeal held that the critical question was whether, at the time the Cyprus proceedings had begun, there had been in existence two sets of proceedings involving the same cause of action between 'the same parties' within the meaning of art 27. The fact that as a matter of English law the assignee only became a party to the English action when it was substituted was irrelevant. The relevant question was whether the assignee and the original claimants were to be regarded as the 'same party' for the purposes of art 27. If they were, then the English court was and remained first seised of proceedings between the original claims.
The judgment sets out the principles to be applied when the Court considers whether parties in two separate actions are the same parties under art 27. It was held that the term between 'the same parties' had an independent or autonomous meaning and was a matter of substance; whether parties were ‘identical’ might depend on whether there was such a degree of identity between the interests of the entities that a judgment given against one of them would have the force of res judicata as against the other; and it would also depend on whether the interests of the entities were identical and indissociable, it being for the national court to ascertain whether that was in fact the case. In this case the rights of the assignor and assignee were indissociable in the sense of indivisible and they could therefore be regarded as the same party. The English court was therefore first seised.