SCOR SE v Barclays Bank Plc

For the purposes of Regulation (EU) 1215/2012, related actions are assessed broadly and commonsensically. A sufficient connection may arise from overlapping factual issues and a risk of inconsistent factual findings; legal identity and mutually exclusive consequences are unnecessary. The court may treat proceedings as related even where they cannot actually be tried together, although that inability is a powerful reason against a stay. A stay is discretionary and requires a compelling reason. There is no general presumption in favour of a stay. The court must consider the degree of relatedness, the procedural stage reached and the proximity of the jurisdictions to the dispute, together with the particular circumstances. The burden of persuasion remains on the applicant.

SCOR SE brought English proceedings against Barclays concerning alleged misuse of confidential information connected with Covéa’s proposed acquisition of SCOR. Related proceedings had first been commenced in France: criminal proceedings against Mr Derez and Covéa, including an associated civil compensation claim, and commercial proceedings against them.

Barclays applied for a stay of the English action under article 30 of the Recast Regulation or the court’s inherent case-management jurisdiction. The central issues were whether the French criminal proceedings and the English proceedings were related, and, if so, whether a stay should be granted.

1. Application refused. The court held that the French criminal proceedings and the English proceedings were related on the assumed Privatbank v Kolomoisky approach, but declined to stay the English action.
2. Applying Sarrio SA v Kuwait Investment Authority and Research in Motion UK v Visto, the question whether actions are related requires a broad, commonsense assessment. The actions must be sufficiently closely connected that it would be expedient to hear them together to avoid potentially inconsistent findings. Factual overlap is sufficient; legal overlap is unnecessary. The court accepted that inconsistent factual findings can engage article 30.
3. The court did not decide whether “expedient” means desirable or whether the actions must be capable of being tried together. It applied the former approach from Privatbank v Kolomoisky, while recognising the contrary indication in Euroeco Fuels (Poland) Ltd v Sczezin and Swinoujscie Seaports. The proceedings were related because the alleged conduct of Mr Derez and the confidentiality of the information created a sufficient risk of inconsistent findings.
4. For the discretionary stage, Owens Bank v Bracco supplied three non-exhaustive considerations: the extent of relatedness and risk of irreconcilable decisions, the stage reached in each proceeding, and the proximity of the courts to the subject matter. The burden remained on Barclays. There was no broad presumption in favour of a stay. Because the proceedings could not be consolidated, that fact was a compelling reason against a stay and a strong countervailing reason was required.
5. The relatedness was limited, the French proceedings were criminal and subject to a different standard of proof, and the legal issues were distinct. Although the French proceedings were further advanced and more closely connected with France, a stay would substantially prejudice SCOR by delaying disclosure and evidence concerning the alleged misuse of confidential information. Barclays had not shown a compelling reason. The English proceedings were not an abuse of process merely because disclosure might assist SCOR in the French litigation.