Cooper Tire & Rubber Company Europe Ltd. & Ors v Shell Chemicals UK Ltd. & Ors

A jurisdiction challenge should ordinarily be determined at the earliest reasonable opportunity. The possibility that the court may need to anticipate a foreign appellate decision does not, without more, justify a lengthy adjournment, particularly where the foreign first-instance decision is available. The prospect of a stay pending European competition-law appeals is relevant but does not require postponement of the jurisdiction issue. Case management should be conducted on a real basis after jurisdiction has been decided, rather than on a shadow basis. The risk that costs will be wasted if another court ultimately assumes jurisdiction is insufficient to justify an indefinite or lengthy adjournment.

The claimants brought follow-on damages claims concerning an alleged rubber price-fixing cartel. Related proceedings were commenced in Italy by companies found by the European Commission to have participated in the cartel. The defendants challenged the jurisdiction of the English court under Articles 27 and/or 28 of the Judgments Regulation.

The jurisdiction hearing had been adjourned after the Italian judge indicated that preliminary issues would be decided promptly. The Italian proceedings were subsequently dismissed, subject to appeal. The defendants sought a further adjournment pending that appeal and related appeals against the European Commission decision. The central issue was whether the jurisdiction challenge should proceed in October 2009 or await the foreign appeals.

1. Application dismissed. The jurisdiction challenge was not adjourned. The parties were invited to agree any remaining directions for the October 2009 hearing.
2. In principle, a jurisdiction dispute should be resolved at the earliest reasonable opportunity. Early determination assists the parties in planning the management of substantial litigation and avoids leaving the proceedings in limbo.
3. The possibility that the English court would have to anticipate the Italian appellate court’s decision on Italian law and jurisdiction did not justify postponement for two and a half years or longer. The position had changed since the earlier adjournment because the Italian first-instance judgment was available.
4. The prospect that the substantive proceedings would be subject to a Masterfoods stay was relevant, but did not provide a sufficient reason to defer the jurisdiction challenge. The approach in National Grid Electricity Transmission PLC v ABB Ltd [2009] EWHC 1326 (Ch) showed that the precise application of such a stay would require case management. If further disputes arose, it was more sensible for them to be resolved after jurisdiction had been determined, enabling the court with jurisdiction to manage the case on a real rather than shadow basis.
5. Adjourning the challenge until the Italian appeal concluded might produce the same practical result as the stay sought by the defendants. It was therefore preferable in principle to hear the challenge. The possibility that substantial costs would be wasted if the Italian or European appeals succeeded did not justify a further potentially lengthy adjournment.