Barclays Bank Plc v Ente Nazionale Di Previdenza Ed Assistenza Dei Medici E Degli Odontoiatri

For the purposes of Council Regulation (EC) No. 44/2001, proceedings concerning breach of an exclusive jurisdiction agreement do not generally have the same cause or object as substantive tortious proceedings brought in another Member State. A jurisdiction agreement is separable from the underlying contract. An attack on the validity of the substantive contract does not, without a specific challenge to the jurisdiction agreement, engage the same-cause analysis.

Related actions may still be stayed under Article 28, but an agreed exclusive English jurisdiction clause is a powerful factor against a stay. A court may hear a summary judgment application with a jurisdiction challenge only in rare cases, where the defendant has had a real opportunity to address the merits and proceeding is fair and efficient.

ENPAM commenced proceedings in Milan against Barclays and others concerning losses allegedly arising from a 2007 asset exchange involving credit-linked notes. It alleged tortious and pre-contractual liability and, alternatively, sought nullity, cancellation or termination of the transaction documents and restitution. Barclays then brought English proceedings seeking declarations and relief for breach of exclusive English jurisdiction clauses and relied on contractual indemnities.

ENPAM applied for a stay or dismissal of the English proceedings under Articles 27 and 28 of Council Regulation (EC) No. 44/2001, contending that the proceedings were the same or related. Barclays sought summary judgment. The central issues were whether Article 27 applied, whether a stay was appropriate under Article 28, whether the summary judgment application should be heard at the same time, and whether ENPAM had an arguable defence.

1. Article 27. The Milan and English proceedings involved the same parties but not the same cause or object. ENPAM’s main claim was for tortious damages, whereas Barclays’ claim concerned breach of contractual jurisdiction agreements. The secondary claims sought nullity, cancellation or termination of substantive agreements and restitution, which were also different in legal basis and relief.
2. A jurisdiction clause is a separate agreement from the contract in which it appears. An attack on the validity of the substantive agreements therefore did not amount to an attack on the separate jurisdiction agreements. The Milan statement of claim did not independently challenge those jurisdiction agreements, and the English proceedings were not mirror images of the Milan proceedings. Article 27 therefore did not require a stay.
3. Article 28. The proceedings were related, but the common issues were not substantial after the Letter Agreement indemnity claim was abandoned. The agreed exclusive English jurisdiction clause, the speed with which the English issues could be resolved, and the structure of ENPAM’s Italian claims weighed against a stay. The stay application was refused.
4. Summary judgment. Although the established rule is that a summary judgment application should be heard with a jurisdiction challenge only in rare cases, this was such a case. ENPAM had served its evidence and submissions, suffered no procedural prejudice, and both parties were fully prepared. The court therefore heard the applications together.
5. The Milan proceedings fell within the broad language of the Letter Agreement and PCA jurisdiction clauses. The PCA clause required ENPAM to submit disputes relating to the PCA to the English courts, notwithstanding its provision allowing Barclays to sue elsewhere. Barclays had not waived that entitlement by participating in Italian mediation, because it had reserved its position and participation did not amount to submission to Italian jurisdiction. The Rome Convention did not govern jurisdiction agreements.
6. ENPAM had no arguable defence based on anti-suit injunction principles, mutual trust, waiver or the governing law of the jurisdiction clauses. Barclays was entitled to summary judgment on liability and the relevant declarations, except that no summary declaration was granted on the PCA indemnity because its scope remained unclear. Consequential directions were to be addressed separately.