Since 10th January 2015, the EU courts have had a discretion to stay their proceedings in favour of a non-EU court if the non-EU court was first seised (under the re-cast Brussels Regulation (1215/2012)). The previous position was that the English courts had no discretion to stay English proceedings if a defendant was domiciled in England even if a non-EU jurisdiction was clearly the more appropriate forum (as confirmed in the ECJ decision of Owusu v Jackson). It continues to be the case, though, that if (as was the position in this case) an English court is first seised of proceedings against a defendant domiciled in England, it cannot stay proceedings in favour of a non-Member State court.
There has been criticism of Owusu and at first instance in this case Coulson J was invited by the defendant to find that Owusu is a case on its particular facts and has no application in this case. He declined to do so and found that he was bound to follow the decision, although he agreed that there was force in the submission that the ECJ's reasoning is "suspect".
The defendant appealed from that decision and the Court of Appeal has confirmed that Owusu is correct: "I reject the suggestion that either the position is somehow unclear, or that the ECJ did not intend that jurisdiction was mandatory in the present type of case, or that there should be a reference. The wording in article 4 of the Recast Regulation is materially the same as article 2 of the Brussels Convention. In my view, [the defendant] is seeking to argue points that are no longer open to EU domiciled defendants. In the words of Professor Briggs, the position since Owusu v. Jackson is clear 'and the debate has moved on', see Briggs, Civil Jurisdiction and Judgments (6th edition) §2.304".