Gray v Hurley

The Judgments Regulation Regulation (EU) No 1215/2012 is not acte clair on whether Article 4(1) confers a directly enforceable right to be sued only in the courts of a Member State or whether that right, if it exists, requires a national court to grant an anti-suit injunction to restrain proceedings in a third State; where doubt exists the national court should seek a preliminary ruling from the Court of Justice rather than assume a mandatory rule of injunctive relief.

The appellant, domiciled in England, sought an anti-suit injunction to restrain proceedings commenced by the respondent in New Zealand; the judge in the High Court ([2019] EWHC 1972 (QB)) refused the injunction. The principal issues were whether Article 4(1) of the Judgments Regulation confers a directly enforceable exclusive right to be sued only in the courts of a Member State and, if so, whether a breach by proceedings in a third State obliges the Member State court to provide relief including an anti-suit injunction. The Court of Appeal found the questions not acte clair and stayed the appeal, referring specific questions to the Court of Justice under Article 267 TFEU and determining that earlier Court of Appeal authority on Article 22(1) in employment cases did not bind the outcome on Article 4(1).

1. Disposition: The Court stayed the appeal and referred questions to the Court of Justice under Article 267 TFEU for a preliminary ruling on the legal effect of Article 4(1) of the Judgments Regulation; the court did not decide the substantive merits pending that reference.
2. Ratio and reasoning:
   1. The court analysed whether Article 4(1) confers a directly enforceable right to be sued only in the courts of the Member State of domicile and whether, if such a right exists, there is an obligation to provide an effective remedy including by an anti-suit injunction where proceedings occur in a third State. The court considered principles of direct effect, effectiveness and the need for an effective judicial remedy, but concluded the meaning was not acte clair.
   2. The court held that prior Court of Appeal authorities dealing with Article 22(1) (employment-specific provision) — notably Samengo-Turner v J & H Marsh McLennan (Services) Ltd and Petter v EMC Europe Ltd — established ratios limited to employment cases and did not determine the scope or remedial consequences of Article 4(1). Those authorities were therefore not binding for the wider question posed by Article 4(1).
   3. The court emphasised the difference in wording and policy between Article 22 and Article 4, and the special protection for employees reflected in Recital 18 and Section 5 of the Regulation. It noted that extending the remedial approach used in Article 22 cases to the whole of Article 4(1) would produce extreme and intrusive consequences, affecting comity and the jurisdictional autonomy of third States, and that such consequences would be expected to appear clearly in the instrument if intended.
   4. The court reviewed domestic anti-suit principles, including the high threshold for granting injunctions in 'single forum' cases and the requirement that restraint in effect extinguish foreign proceedings should be ordered only where unconscionable conduct or a compelling equitable basis exists.
3. Procedure: Because the meaning and consequences of Article 4(1) are not acte clair, the court referred the following questions to the Court of Justice: (1) whether Article 4(1) confers a directly enforceable right upon a person domiciled in a Member State; (2)(a) if so, whether a breach by proceedings in a third State obliges the Member State to provide a remedy including by anti-suit injunction; (2)(b) whether that obligation extends where the cause of action in the third State is not available under the law of the Member State.
4. Prior authorities: The court held that the High Court judge was correct to refuse to treat Samengo-Turner and Petter as binding for Article 4(1) issues and explained why the ratios of those cases are limited to Article 22 employment situations.
5. Order: Appeal stayed; preliminary reference to the Court of Justice; directions for interim measures and continuing interlocutory protections were made (details of which were given in the judgment and orders).

• Court of Appeal (Civil Division) — appeal from the High Court, Queen's Bench Division; stay granted and questions referred to the Court of Justice under Article 267 TFEU; judgment of 12 December 2019 ([2019] EWCA Civ 2222).
• High Court, Queen's Bench Division — Lavander J: refused anti-suit injunction and made interim orders; judgment [2019] EWHC 1972 (QB) (decision under appeal).