WMS Gaming Inc v B Plus Giocolegale Ltd

Under the Brussels Regulation, the mandatory lis pendens rule requires close attention to the identity of the parties, cause and object of the proceedings. Separate parent and subsidiary companies are not ordinarily the same parties merely because their interests overlap or personnel are shared. The related-actions discretion requires a sufficiently close connection and a real risk of irreconcilable judgments. A superficial factual overlap is insufficient. In exercising that discretion, the court considers the degree of relatedness and risk, the procedural stage reached in each jurisdiction, and the proximity of each court to the subject matter. A late application for a stay requires a good reason.

WMS Gaming Inc brought English proceedings seeking declarations concerning the termination of a supply contract and the ending of negotiations for a possible Italian supply arrangement. B Plus had commenced Italian proceedings in Rome against an affiliated company, WMS Gaming International S.L., alleging contractual liability and liability under article 1337 of the Italian Civil Code.

B Plus applied under articles 27 and 28 of the Brussels Regulation for the English court to decline jurisdiction or stay the English claims. The central issues were whether the proceedings involved the same cause of action and parties, whether they were related actions, and whether a stay application concerning the supply-contract claim was made in time.

Applications refused. The English proceedings were not required to be stayed under article 27 and the court declined to exercise its discretion under article 28.

1. The contractual claim had been waived in the Italian proceedings. It was no longer before the Rome court, notwithstanding conflicting evidence about Italian procedural law.
2. A claim-by-claim approach under articles 27 and 28 was doubtful. The Regulations referred to proceedings, and fragmentation was a disadvantage. The point was left undecided because it could not assist B Plus on the facts.
3. The English negotiation claim and the Italian article 1337 claim did not involve the same cause or object. Their factual basis overlapped, but the applicable legal rules differed. Their objects also differed: one sought to establish WMS Inc’s non-liability, while the other sought compensation from WMS Spain.
4. WMS Inc and WMS Spain were not the same parties for article 27. They were separate legal entities with distinct roles and interests. Their interests were neither indissociable nor indivisible, and a judgment against one would not have res judicata effect against the other. The court approached Berkeley Administration Inc v McClelland cautiously and confined its significance to its facts.
5. The English and Italian proceedings were not related actions under article 28. There was some connection, but little risk of inconsistent judgments. Even concurrent findings of liability would not be irreconcilable if the companies were jointly and severally liable.
6. The application to stay the supply-contract claim was made about 11 weeks late. No good reason for extending time had been shown. The proposed stay also rested on the speculative possibility of a future consolidation in Italy.
7. Applying the factors identified in Owens Bank Ltd v Bracco, the absence of any serious risk of irreconcilable outcomes, the earlier likely English trial, and the mixed forum considerations strongly favoured allowing the English action to proceed.

The case was directed towards a two-to-three week trial in the Michaelmas term of 2012.

Not stated in the judgment.