In Royal Sun Alliance Insurance Plc and others v Rolls Royce [2010] EWHC 1869, the High Court considered, but declined to clarify, the controversial decision by the ECJ in Owusu v Jackson [2005] QB 801 relating to the interpretation of Article 2 of the of the Brussels Convention (now superseded by Article 2 of the Brussels Regulation).

Article 2 states that “persons domiciled in a Member State shall, whatever their nationality, be sued in the court of that Member State”. This rule can only be displaced if one of the exceptions set out in the Regulation applies, for example a jurisdiction clause.

In Owusu, the ECJ ruled that a court on which jurisdiction is conferred by Article 2 cannot decline jurisdiction on the ground that the court of a non-member state would be a more appropriate forum. This was the case even if the jurisdiction of no other member state was in issue, or the proceedings involved no factors connecting the situation with another member state. The ECJ reasoned that Article 2 was of a mandatory nature. However, the ECJ in Owusu declined to answer whether this applied to other circumstances, including where identical or related proceedings were pending before the courts of a non-member state court. This has become known as “the Owusu point”.

In the present case, Rolls Royce sought to stay proceedings brought against it by Royal Sun Alliance, either generally or pending determination by the US courts of their jurisdiction in proceedings brought by Rolls Royce against Royal Sun Alliance in Florida. Royal Sun Alliance argued that the English court had no discretion to decide that the defendant could be sued in a country other than where it was domiciled on the ground of parallel proceedings in a nonmember state, and therefore could not order a stay of proceedings. Rolls Royce, on the other hand, argued that the Brussels Regulation did not apply where the alternative proceedings had been commenced in a non-member state. It submitted that Article 27 (i.e. that the court first seised shall be the first court to deal with the case) could be applied by analogy, and the Florida courts were the first seised.

The judge ruled that Rolls Royce had not shown that Florida was the appropriate forum for the trial of the claim. Its application for a stay was therefore refused, and the court was not required to decide the Owusu point.

This case illustrates the oddity of the ECJ’s approach in Owusu, in that it declined to address the wider implications of this decision. While it is disappointing that the High Court has not ruled on whether or not the decision of the ECJ in Owusu can be applied to wider circumstances, the judgment in the present case contains a useful summary of the authorities on the point and identifies the issues that need to be resolved by the courts post-Owusu.