Unknown case

For Article 27 of the Brussels I Regulation, the court compares the claims in the two proceedings, not later defences. Proceedings do not involve the same cause of action where the contractual breaches, facts and legal rules relied upon differ, even if they concern the same agreement. Article 28 requires both a sufficiently close connection and a value judgment that hearing the actions together is expedient to avoid irreconcilable judgments. Where the actions cannot be tried together, the risk of inconsistency is slight, and a stay would cause substantial or indefinite delay, a stay is inappropriate. The duty of sincere cooperation may require the parties to provide a foreign court with the domestic judgment.

Imagina, a Spanish company, sued TVV in Spain for unpaid fees under an agreement granting broadcasting rights. The agreement gave the Spanish courts exclusive jurisdiction over Imagina’s claims as plaintiff, while requiring TVV to bring its own claims in England unless Imagina consented to Spain.

After Imagina granted a replacement sub-licence, TVV terminated the agreement and commenced English proceedings for a declaration that the termination was valid and for damages. Imagina applied to stay the English proceedings under Articles 27 and 28 of the Brussels I Regulation and section 49(3) of the Senior Courts Act 1981. The central issues were whether the proceedings involved the same cause of action or were related, and whether a stay was justified by any risk of irreconcilable judgments.

1. Application dismissed. The English proceedings were not stayed under Article 27(1), Article 28(1) or section 49(3) of the Senior Courts Act 1981.
2. Article 27(1) did not apply. Following The Tatry [1994] ECR I-5460 and Kolden Holdings v Rodette Commerce Ltd [2008] EWCA Civ 10, the comparison is between the claims made in the two proceedings, rather than the defences raised later. The Spanish proceedings concerned TVV’s failure to pay fees. The English proceedings concerned Imagina’s alleged repudiatory breach and TVV’s termination. Their facts, legal rules and objects differed.
3. Article 28(1) did not justify a stay. As explained in Research in Motion UK Ltd v Visto Corp [2008] EWCA Civ 153, the court must assess the degree of connection and then whether it is expedient to hear the actions together to avoid irreconcilable judgments. The proceedings were not related under Article 28(3), because Imagina would not consent to the Antena 3 issue being determined in Spain and the actions therefore could not be heard together.
4. The risk of irreconcilable judgments was very slight. The Spanish court had refused to admit the Antena 3 issue and the June 2012 invoice. A decision on the January 2012 invoice would not conflict with an English decision that the agreement was validly terminated on 9 March 2012. Any remaining risk had been created by Imagina’s refusal to agree to determination of all issues in Spain, and did not justify delaying proceedings whose central issue could only be decided in England. The likely need for a retrial in Spain made an indefinite stay particularly inappropriate.
5. The same conclusion followed under section 49(3). The parties were directed to provide the Spanish court with a copy of the judgment, reflecting the duty of sincere cooperation between Member State courts.