Molnlycke Health Care v BSN Medical Ltd

Article 27 of the Brussels Regulation requires the foreign proceedings to concern the same issue as the English proceedings before a stay can be justified. Where the English court is first seised of the relevant infringement issue, the possibility that the foreign court may later consider it does not justify an adjournment or stay under Article 28. The practical convenience of litigating in one jurisdiction, rather than two, is a matter for the parties and does not itself warrant judicial intervention.

Molnlycke brought an English patent infringement action concerning whether samples of BSN’s products fell within the claims of a British patent. BSN relied on prior Swedish proceedings and sought a stay under Article 27 of the Brussels Regulation. Mr Justice Floyd refused the stay in the Patents Court. On appeal, Molnlycke also relied on Article 28 and sought an adjournment while the Swedish court might decide whether to take jurisdiction. The central issue was whether the Swedish proceedings concerned the same infringement issue and whether either provision justified delaying the English action.

Lord Justice Jacob gave the judgment of the court. The appeal was dismissed and the English action could proceed.

1. When the appeal first came before the court, it was unclear whether the Swedish court was seised of the issue raised in England: whether the samples of BSN’s products fell within the claims of the Molnlycke patent. The court contacted the Swedish judge as part of judicial cooperation. She confirmed that, as matters stood, that issue was not in issue in Sweden. It might become an issue later, but only after the English court had been seised of it. The English court was therefore first seised. Article 27 was conceded not to apply.

2. Article 28 had not been relied on before Floyd J. The court rejected the proposed adjournment while awaiting a possible decision by the Swedish court to take jurisdiction. That would put the sequence of events the wrong way round, since the English court was already seised of the relevant issue. There was no basis for an application under Article 28.

3. The suggested risk of irreconcilable decisions did not alter the conclusion. The court was not convinced that the Swedish court had already ruled on whether the British patent covered the samples. Since the English court was first seised, the English action could continue. Whether it was sensible for the parties to proceed in two jurisdictions was a matter for them, rather than for the courts.

1. Chancery Division, Patents Court: Mr Justice Floyd refused to stay the English patent action on the basis of prior Swedish proceedings and Article 27 of the Brussels Regulation. The judgment citation was not stated.

2. Court of Appeal (Civil Division): the appeal was dismissed and the English action was allowed to proceed: [2010] EWCA Civ 988.