Katsouris Brothers Ltd v Haitoglou Bros SA

The Brussels jurisdiction regime requires courts to minimise concurrent proceedings and applies autonomous concepts of seisin, cause of action and the object of proceedings. A negative declaratory action may involve the same cause and object as a later contribution claim where, viewed objectively, it seeks a declaration excluding liability for that contribution. Where another Member State court was first seised of proceedings involving the same parties and cause, the English proceedings must be stayed. An extension of time for serving particulars is discretionary. Deliberate and prolonged non-compliance, delay, procedural warehousing, prejudice to the defendant and disruption of foreign proceedings may justify refusal of relief and striking out the action.

The dispute arose from the supply of tahini by Haitoglou Bros SA, a Greek company, to Katsouris Brothers Ltd in Greece. The tahini was subsequently supplied in England and allegedly used in contaminated houmous. Katsouris Brothers brought an English action alleging tortious liability and contribution under the Civil Liability Contribution Act 1978, but did not serve particulars of claim within the required time.

Haitoglou later commenced negative declaratory proceedings in Greece. Katsouris Brothers also sought permission to bring contribution proceedings against Haitoglou as a third party in related English proceedings brought by Katsouris Fresh Foods Ltd and Bakkavor Foods Ltd. The court determined whether the English court had jurisdiction, whether the original English action should be revived, and whether the Greek proceedings were first seised of the same dispute.

1. The application to extend time for service of the particulars of claim in the Queen’s Bench action was dismissed. Katsouris Brothers’ failure to serve particulars was deliberate and prolonged. Its conduct, including stating that the action had been allowed to lapse, failing to act promptly and seeking to revive the proceedings when the Greek trial was imminent, weighed strongly against relief.

2. Although the action had not been formally discontinued, dismissed, stayed or struck out, the court refused to exercise the assumed power under CPR Part 3.10 to extend time. The relevant considerations under CPR Part 3.9 included the interests of the administration of justice, delay, intentional non-compliance, the absence of a good explanation, repeated procedural failures, prejudice to Haitoglou and the likely disruption of the Greek proceedings. The Queen’s Bench action was accordingly struck out.

3. The court assumed, without deciding, that jurisdiction might otherwise arise under Article 5(3) of the Judgments Regulation and that the Part 20 claim fell within Article 6(2). Those assumptions were not the basis of the decision.

4. For Article 27, the concepts of cause and object are autonomous. The court must look broadly at the judgment sought and identify objectively the essential issue, rather than rely on the form of the pleadings or English domestic meanings. The Greek proceedings sought, in substance, a declaration that Haitoglou had no liability arising from the tahini deliveries, including liability for any indemnity or contribution connected with claims by the downstream purchasers.

5. The Greek proceedings and the Part 20 claim therefore involved the same parties and the same cause of action for Article 27 purposes. The Greek court was first seised. The Part 20 proceedings were stayed until the jurisdiction of the Greek court was established.