Masri v Consolidated Contractors International Co Sal & Ors

Article 27 of the Judgments Regulation applies only where proceedings involve the same parties, or materially identical parties, the same cause of action and the same object. Those requirements must be interpreted broadly, but the court should preserve the distinction between mandatory lis pendens and the more flexible jurisdiction under Article 28.

Under Article 28, actions are related where their factual or legal overlap creates a material risk of conflicting or irreconcilable judgments. The discretion to stay or dismiss must be exercised by reference to the extent of the overlap, the procedural stage, the connection of the proceedings with the forum and the practical expediency of consolidation. A serious failure to disclose related foreign proceedings on an ex parte application may justify a costs sanction even where the order itself is not discharged.

The claimant brought a conspiracy and unlawful-interference action in England against companies and individuals connected with the Consolidated Contractors group. A related action had previously been commenced in Greece seeking to make certain defendants personally liable for the unpaid judgment debt of two group companies. The claimant also pursued contempt proceedings in the existing English litigation.

The defendants applied under Articles 27 and 28 of the Judgments Regulation for the English proceedings to be declined, dismissed or stayed. The central issues were whether the Greek and English proceedings involved the same cause of action and object, whether they were related, and how the court should exercise its Article 28 discretion. A further issue concerned non-disclosure of the Greek proceedings when permission for service out of the jurisdiction was obtained.

1. Article 27. The Greek action was the first-seised proceeding, but Article 27 did not apply. The parties were materially identical, and the factual inquiries substantially overlapped, but the causes of action were materially different. The Greek action sought to impose personal liability for a company's debts by reason of its alleged status and operation as a de facto partnership. The English action sought damages for participation in an unlawful conspiracy and procurement of breaches of contract. The distinction was not merely between debt and damages; the legal rules founding liability were different.

2. The objects also differed. The Greek action sought to make the defendants personally liable for the company's debts. The English action sought recovery of loss caused by alleged unlawful acts. The analysis in Haji-Ioannou v Frangos and Sarrio SA v Kuwait Investment Authority supported that conclusion.

3. Article 28. The proceedings were related. There was a material risk of conflicting decisions concerning the defendants' roles, continuing control of the group, and the significance of changes in directorship and judicial administration. The existence of the earlier English action and continuing contempt proceedings was also relevant.

4. The court applied a broad, commonsense approach to relatedness. The relevant considerations included the extent of the overlap and risk of inconsistent decisions, the stage reached in each proceeding, the English connection of the English action, and the practical expediency of a stay or consolidation. The presumption was against simultaneous litigation in different Member States where related proceedings created a material risk of conflicting judgments.

5. Although consolidation in Greece was legally possible, importing the factual and legal complexity of the conspiracy action into the Greek proceedings was not expedient. The English conspiracy action was therefore stayed under Article 28. The stay was not granted on a general forum non conveniens basis and could be reconsidered if circumstances changed or consolidation became appropriate.

6. On the ex parte service application, the claimant had a duty to disclose the Greek proceedings and explain their relevance. The non-disclosure was serious and material, but the court declined to discharge the service order after the issue had been argued inter partes. The claimant was, however, deprived of the costs of making and obtaining the ex parte order and of the explanatory witness statement.

Not an appeal. The judgment determined interlocutory applications in the High Court proceedings.