Maxter Catheters SAS & Anor v Medicina Ltd

Where related proceedings are pending in different Member States, the court must identify the proceedings that are substantively related at the hearing date and then determine which court was first seised. A provisional or emergency proceeding does not ordinarily make its court first seised of the substantive dispute where it is separate from, and cannot lead to, a final determination on the merits. The inquiry under Article 30 of the Judgments Regulation requires a broad, common-sense and purposive approach directed to avoiding irreconcilable judgments. A claim amended to add remedies or causes of action arising from the same facts is not necessarily a new claim for these purposes. Proceedings are not an abuse merely because one legitimate purpose of bringing them is to secure the benefit of the lis pendens rules.

The claimants, two French companies, brought proceedings in the English Commercial Court against the defendant, an English company, arising from the termination of a long-standing business relationship concerning medical devices. The claim sought declarations concerning the governing law, jurisdiction and the claimants’ entitlement to cease supplying products, and was later amended to add damages, passing off and conversion.

Related proceedings had been brought in France by the defendant’s subsidiary. Those proceedings included an earlier emergency action and a later substantive action on the merits. The defendant applied for a stay under Article 30 of Regulation (EU) No 1215/2012, a stay or strike-out on other grounds, and opposed amendment. The central issues were whether the French court was first seised, whether the English proceedings were abusive or had no real prospect of success, and whether amendment should be permitted.

1. Stay for abuse of process. The claimants had a legitimate interest in obtaining declarations concerning the parties’ contractual relationship and the applicable law. The fact that securing the benefit of the lis pendens rules was also a purpose of commencing proceedings did not make them abusive. Applying JSC BTA Bank v Ablyazov [2011] 1 WLR 2996, proceedings were not an abuse where they had both a legitimate purpose and a collateral purpose, even if the latter was predominant. The stay was refused.
2. Article 30. The court had to ask first whether the actions were related at the time of the stay application and, if so, which court was first seised. The inquiry required a broad, common-sense and purposive approach, directed to minimising concurrent proceedings and avoiding irreconcilable judgments. The English proceedings and the French action au fond were related, but the earlier French action en référé was separate, provisional and incapable of determining the substantive dispute. It therefore did not make the French court first seised. The English court was first seised and had no jurisdiction to stay its proceedings under Article 30. This conclusion was supported by Starlight Shipping v Allianz Marine & Aviation [2014] Bus LR 873, FKI Engineering Limited v Striborg Limited [2011] 1 WLR 3264, Rank Film v Lanterna [1992] I L Pr 58, Boss Group v Boss France [1997] 1 WLR 351 and Purrucker v Perez [2010] ECR I-11163.
3. Amendment and new claim. The proposed amendment retained the declaratory claim and added remedies and causes of action arising from the same facts and matters. It did not constitute a new claim. Applying the approach in Lloyds Bank PLC v Rogers (No.2) [1999] 38 EG 83, the amendment did not alter the date on which the English court was seised. Permission to amend was granted.
4. Prospects of success and case management. The contractual term, the parties’ subsequent dealings and the evidence concerning breach meant that the claims could not be said to have no real prospect of success. A case-management stay or refusal of amendment to avoid duplication was unavailable for the same reasons arising from Article 30. The defendant’s applications for a stay and strike-out were dismissed, and the claimants were given permission to amend.