Gray v Hurley

Article 4(1) of the Judgments Regulation may confer rights on persons domiciled in a Member State, but it was not clear that those rights require a mandatory anti-suit injunction against proceedings in a third State. The employment-specific decisions in Samengo-Turner v J & H Marsh McLennan (Services) Ltd [2007] EWCA Civ 723 and Petter v EMC Europe Ltd [2015] EWCA Civ 828 did not establish a general rule for Article 4(1). Their ratio was confined to the stronger, exclusive jurisdiction wording of Article 22(1) and the protective employment regime. The Court of Appeal therefore stayed the appeal and referred questions to the Court of Justice under article 267 TFEU.

Ms Gray, domiciled in England, brought English proceedings concerning assets acquired during her relationship with Mr Hurley. Mr Hurley commenced proceedings in New Zealand under the Property (Relationships) Act 1976. Lavender J dismissed the anti-suit application, holding that Article 4(1) neither required an injunction nor constituted a significant discretionary factor: [2019] EWHC 1972 (QB).

The appeal raised whether Article 4(1) compelled an anti-suit injunction and whether earlier Court of Appeal decisions concerning employment contracts bound the court. The central issue was whether Article 4(1) conferred an enforceable right to be sued only in the domicile state and, if so, what remedy was required where the third-State cause of action was unavailable in England.

The Court of Appeal stayed the appeal and referred questions concerning Article 4(1) to the Court of Justice for a preliminary ruling. It did not finally determine whether Article 4(1) conferred a directly enforceable right or required an anti-suit injunction.

1. Binding precedent. The ratio of Samengo-Turner v J & H Marsh McLennan (Services) Ltd [2007] EWCA Civ 723, as followed in Petter v EMC Europe Ltd [2015] EWCA Civ 828, was confined to Article 22(1). That provision gives an employee domiciled in a Member State a right to be sued only in the courts of the employee’s domicile. Where an employer litigates in a third State, an anti-suit injunction should ordinarily protect that right.
2. The Court rejected the broader interpretation of those authorities. They concerned the specific employment regime in Section 5, not the general jurisdictional rule in Article 4. Article 22(1) uses the word only, whereas Article 4(1) does not. The earlier decisions also concerned the same cause of action being litigated in different jurisdictions. They did not address a case where the third-State cause of action could not be pursued in the defendant’s domicile state.
3. Article 4(1). The appellant’s interpretation was possible, but could produce extreme results, including mandatory restraint of proceedings where the Member State’s courts could not entertain the relevant cause of action. Articles 33 and 34 of the Judgments Regulation assumed a genuine choice of forum. A procedural obligation with the profound effect of neutralising foreign statutory provisions would be expected to appear expressly in the Regulation, particularly given the importance of comity.
4. Domestic principles. Anti-suit relief is discretionary and must be granted cautiously because it interferes with the process of the foreign court. Where a remedy exists in both jurisdictions, foreign proceedings ordinarily must be vexatious or oppressive. In a single-forum case, relief is available only where the foreign proceedings are so unconscionable that pursuing them infringes an equitable right: British Airways Board v Laker Airways Ltd [1985] AC 58; Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC).
5. Reference. The meaning and effect of Article 4(1) was not acte clair. The Court accordingly referred whether the provision conferred a directly enforceable right, whether a breach by third-State proceedings required a remedy including an anti-suit injunction, and whether that obligation extended where the relevant cause of action was unavailable under the law of the Member State. The appeal proceedings were stayed, subject to directions concerning interim measures.

1. Court of Appeal (Civil Division): The appeal was stayed and questions concerning Article 4(1) were referred to the Court of Justice for a preliminary ruling.
2. High Court (Queen’s Bench Division): Lavender J dismissed the anti-suit injunction application in the judgment appealed from, [2019] EWHC 1972 (QB).