The claimant in England sought to recover a loan made pursuant to a facility agreement; the claimant in Greece sought a declaration that the facility agreement was invalid. The defendants sought a stay of the action brought against them here.
Held: The application succeeded in part. The proceedings involved the same cause of action.
There was an identity of ’cause of action’ – the term bearing an independent and autonomous meaning in European law divorced from any criteria of national law. In particular:
‘Fundamentally, it is the rights and obligations of the parties in relation to the same facts which, in my judgment, matters here. Each court will be concerned with the respective rights and obligations of the parties, however those are classified and determined by the national courts of each country. . . The way the claim is framed and the arguments in support of it may fall to be taken into account, but ultimately, the question must be seen broadly in terms of the judgment sought and not in terms of the issues raised on the way.’
Cooke J also rejected a proposition that the test in a lis pendens case was ‘to ask whether a decision in one set of proceedings would be a conclusive answer to the questions raised in the other’. The fact that the German court would be addressing questions of public policy which would not arise in this jurisdiction, and would therefore be approaching one aspect of the enforceability of the loan agreement in a different way, was not a relevant factor: it was in the nature of an issue raised on the way. The key point was that the enforceability of the loan agreement, and the reciprocal rights and obligations of the parties under it, was the common theme both in Germany and here. The examination must be of ‘the basic facts (whether in dispute or not) and the basic claimed rights and obligations of the parties to see if there is coincidence between them’.
Judges:
Cooke J
Citations:
[2005] EWHC 508 (Comm), [2005] 1 CLC, [2005] 2 Lloyd’s Rep 665
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Television Autonomica Valenciana, Sa v Imagina Contenidos Audiovisuales, Sl ChD 8-Feb-2013
The defendant sought a stay of these proceedings pending the outcome of related proceedings in Spain. The claimant sought a declaration that a contract was terminated and damages for such breach. The Spanish proceedings were first in time.
Cited – Starlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
Cited – Wright v Granath QBD 16-Jan-2020
Defamation across borders – Jurisdiction
The claimant began an action for defamation in an online publication. The Norwegian resident defendant had begun an action there seeking a declaration negating liability. The Court was now asked by the defendant whether under Lugano, the UK action . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Jurisdiction
Updated: 14 October 2022; Ref: scu.279048