In the matter of “The Alexandros T”

For the mandatory lis pendens rule in Article 27, proceedings have the same cause of action only where the claims, assessed without regard to defences, have both the same legal and factual basis and the same object. Contractual claims to enforce releases, indemnities or exclusive jurisdiction clauses are not ordinarily mirror images of foreign tort claims.

Under Article 28, a stayed action may remain pending and the court first seised. A discretionary stay may properly be refused where the contractual issues are governed by English law, fall within an exclusive English jurisdiction agreement, and can most appropriately be resolved by the English court.

Following the loss of the vessel, its owners and managers settled English insurance proceedings with the insurers. The settlement agreements contained releases, indemnities and jurisdiction provisions, and the proceedings were stayed by Tomlin orders.

Several years later, the assureds and associated claimants brought Greek proceedings alleging tortious wrongs arising from the insurers’ handling of the insurance claim. The insurers sought declarations, damages and indemnities in England. Burton J refused a stay under Article 28 of Council Regulation (EC) No 44/2001 and granted summary judgment. The Court of Appeal, [2012] EWCA Civ 1714, held that Article 27 required a stay.

The central issues were whether the English and Greek claims involved the same cause of action, whether England remained first seised, and whether a discretionary stay should be granted under Article 28.

1. Appeals allowed in substantial part; cross-appeal dismissed. Lord Clarke, with whom Lord Sumption and Lord Hughes agreed, held that the insurers’ claims for damages for breach of jurisdiction clauses, contractual indemnities, and damages for breach of the settlement agreements did not have the same cause or object as the Greek tort claims. The claims were not mirror images. The court had to compare the claims made in each jurisdiction, not the settlement agreements as possible defences in Greece.
2. Article 27 required both la même cause and le même objet. Identity of cause depended on the facts and legal rule relied on. Identity of object depended on the end sought. The Greek claims asserted tortious liability, whereas the English enforcement claims asserted contractual rights. The latter could succeed even if the Greek claims succeeded.
3. The court left open a narrower issue concerning claims for declarations that the Greek claims had been settled or compromised. Lord Mance considered those claims to be mirror images of the Greek tort claims. Lord Clarke and Lord Neuberger considered that, if the insurers did not abandon those declarations within 14 days, limited questions should be referred to the CJEU because the point was not acte clair. If abandoned, Article 27 did not require a stay of any claim.
4. For Article 28, the English action remained pending despite the Tomlin stays. A stay was not a dismissal or discontinuance, and the English court remained first seised of the action. In any event, the court would refuse a stay in its discretion. The contractual issues were governed by English law, arguably subject to exclusive English jurisdiction, and the English proceedings were more advanced. Those factors outweighed the connection with the Greek proceedings.
5. The Court of Appeal should also have treated the respondents’ late reliance on Article 27 as procedurally barred or refused permission to raise it. They had deliberately disavowed Article 27 before the judge. National procedural time limits were compatible with EU law provided they respected equivalence and effectiveness.

• United Kingdom Supreme Court: Allowed the insurers’ appeals in substantial part and dismissed the respondents’ Article 28 cross-appeal. A reference to the CJEU was directed only if specified release-declaration claims were maintained.
• Court of Appeal: In [2012] EWCA Civ 1714, held that Article 27 of Council Regulation (EC) No 44/2001 required a stay. It did not finally determine Article 28 or the summary judgment issues.
• Commercial Court: Burton J refused a stay under Article 28 and granted summary judgment to the insurers to enforce the settlement arrangements.