The Court of Appeal upheld the granting of summary judgment on an application by one contracting party for a declaration that the other had breached an English jurisdiction clause by bringing proceedings against it in Italy, and refused to stay the English proceedings under Regulation 44/2001 Article 27 or Article 28.
The English and Italian proceedings did not involve the same cause of action under Article 27 of the Brussels Regulation 44/2001 and a stay of the English proceedings under Article 28 was refused because the common issues were not substantial. After losing in England, the defendant served a "brief" in the Italian proceedings expanding its case on jurisdiction. The defendant sought permission to adduce the brief as fresh evidence in the English appeal. Dismissing the appeal, the Court of Appeal held that the expression "proceedings involving the same cause of action and between the same parties" in Article 27 was to be read as a whole and such proceedings did not come into existence, and the court was not seised of the relevant claim, until the cause of action had been raised in proceedings before the court, whether originally or by amendment. Regarding Article 28, the three factors militating against a stay were (a) the existence of the jurisdiction clauses; (b) the speed at which the English courts could dispose of the issue; and (c) the fact that the Italian proceedings had been deliberately structured to enable that court to assume jurisdiction. The Court of Appeal considered that the last point tended to undermine any suggestion that it should defer to the Italian court as the court first seised, as a fundamental principle independent of Article 27.
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