In Catalyst Investment Group Ltd & Ors v Max Lewinsohn & Ors  EWHC 1964 (Ch) the High Court held that where the English courts have jurisdiction to hear a claim under Article 2 of EC Regulation 44/2001 (the Jurisdiction Regulation) it was not open to that court to stay the action before it on the grounds that there were existing proceedings on foot in a non-EU jurisdiction which had a closer connection to the case than England.
The English action concerned a dispute between Mr Lewinsohn and the other defendants and Catalyst in relation to the issue of loan notes by a Utah company called Eneco and the security which was provided by Eneco for that issue. Mr Lewinsohn was one of the note holders and Catalyst was engaged to assist Eneco in raising funds via the loan notes. In October 2008, Mr Lewinsohn issued proceedings in Utah against Catalyst and others. Subsequently Catalyst issued declaratory proceedings in England, seeking, among other things, declarations that it had no liability to Mr Lewinsohn. The present case concerned a number of applications to stay the English proceedings by Mr Lewinsohn on the grounds of forum non conveniens, with particular emphasis on the fact that there existed corresponding proceedings on the same issues in Utah.
In refusing to stay the English proceedings, Mr Justice Barling held that the ECJ's decision in Owusu v Jackson (C-281/02) (2005) QB 801 ECJ applied even in circumstances where there was a prior action underway in a non-EU state. The effect of this was that where a court was properly seised of an action under Article 2 of the Jurisdiction Regulation (in this case on the grounds that the defendants were domiciled in the UK) and where none of the exceptions to the general rule in Article 2 existed, that court could not decline jurisdiction on the grounds of forum non conveniens in favour of the courts of a non-EU country. Article 27 of the Jurisdiction Regulation, which requires that any Member State court other than the Member State court first seised of an action ought to decline jurisdiction to hear a dispute, did not apply in circumstances where the first seised court was located in a non-EU state. Accordingly, the applications to stay the English proceedings were dismissed.
This decision makes it clear that where an English court has jurisdiction by virtue of the Jurisdiction Regulation, any arguments in favour of staying that action on the grounds of forum non conveniens will not be relevant, even where there is an existing action in a non-EU state.