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

For the purposes of Article 27 of the Judgments Regulation, proceedings must have the same factual and legal basis and seek the same relief. Common issues are insufficient. The comparison is made between the claims, not the defences. A claim introduced by amendment is brought, for this purpose, only when the amendment is made. A jurisdiction clause is separable from the underlying contract, so invalidity of the underlying agreement does not ordinarily invalidate the jurisdiction agreement. Under Article 28, the decision whether to stay related proceedings is discretionary. Agreed jurisdiction clauses, the speed of the English court and the way the foreign proceedings were structured were proper considerations. Summary judgment enforcing a jurisdiction clause does not, without more, offend mutual trust between Member State courts.

ENPAM entered into financial agreements with Barclays containing English jurisdiction clauses. It later commenced proceedings in Milan alleging breaches of Italian law and seeking damages and declarations that the agreements were void. Barclays brought proceedings in London for breach of the jurisdiction agreements.

Blair J dismissed ENPAM’s application under CPR Part 11, refused a stay under Articles 27 and 28 of the Judgments Regulation, and granted Barclays summary judgment: [2015] EWHC 2857. During the appeal, ENPAM filed a further document in Milan purporting to challenge the jurisdiction clauses. The central questions were whether the Milan and London proceedings involved the same cause of action or object, whether a stay was required or appropriate, and whether summary judgment was inconsistent with mutual trust between Member State courts.

1. Disposition. The appeal was dismissed. The refusal to stay the English proceedings and the summary judgment for Barclays were upheld.
2. Time of seisin. The question under Article 27 of the Judgments Regulation was to be assessed when the London proceedings were commenced. Following Gantner Electronic G.m.b.H. v Basch Exploitatie Maatschappij BV [2003] E.C.R. I-4207 and FKI Engineering Ltd v Stribog Ltd [2011] 1 W.L.R. 3264, a cause of action introduced by amendment is brought, and the court is seised of it, only when the amendment is made. Even assuming that the Milan document related back under Italian law, it was filed too late to affect the Article 27 issue.
3. Same cause and object. Article 27 requires identity of factual and legal basis and identity of the end sought. The Milan claims concerned Barclays’ pre-contractual conduct and Italian law, whereas the London claim concerned breach of the jurisdiction agreements. The relief was also different. The fact that the validity of a jurisdiction clause might arise in both proceedings did not establish identity. The separability of the jurisdiction agreements meant that alleged invalidity of the substantive agreements did not undermine the jurisdiction clauses.
4. Related proceedings. The proceedings were related, but Article 28 conferred a discretion rather than requiring a stay. The judge was entitled to consider the agreed jurisdiction clauses, the speed with which the English court could resolve the dispute, and the deliberate way in which the Milan proceedings had been structured. The later Milan document did not outweigh those factors.
5. Summary judgment. The Court of Appeal followed The ‘Alexandros T’ [2014] 2 Lloyd’s Rep 544 and held that summary judgment enforcing a jurisdiction clause was not analogous to an anti-suit injunction and did not infringe mutual trust. The court had to decide for itself, on the evidence and existing authority, whether ENPAM had a real prospect of defending the claim. Judicial exchanges in the separate AMT Futures proceedings were not a proper basis for that assessment.

1. Court of Appeal (Civil Division) dismissed ENPAM’s appeal and upheld the refusal of a stay and the summary judgment.
2. High Court of Justice, Queen’s Bench Division, Commercial Court Blair J dismissed ENPAM’s CPR Part 11 application, refused a stay under Articles 27 and 28 of the Judgments Regulation, and granted Barclays summary judgment: [2015] EWHC 2857.