Lopesan Touristik SA v Apollo European Principal Finance Fund III (Dollar A) L.P. & Ors

When deciding whether to expedite a commercial trial, the court should assess objectively whether there is urgency, the state of the court list, the procedural history including delay, and any irremediable prejudice to the respondent. A provisional view of the merits may be appropriate when assessing procedural urgency.

Under Article 30(1) of the Brussels Recast, actions may be related even where exclusive jurisdiction clauses or jurisdictional limits prevent them from being heard and determined together. That practical impossibility is nevertheless a powerful reason against a stay. Proceedings brought in a contractually chosen exclusive forum should ordinarily be allowed to proceed there unless the case for a stay is very strong.

The claimant sought to enforce, as a third-party beneficiary, an Equity Commitment Letter under which the defendants had undertaken to fund a Spanish hotel acquisition. Related proceedings concerning the sale agreement and the purchaser’s obligation to complete were already pending in Spain.

The claimant applied for an expedited English trial before 1 January 2021, when the defendants argued that their funding obligations would lapse. The defendants applied for a stay under Article 30(1) of the Brussels Recast. The court therefore had to decide whether expedition was appropriate and whether the related Spanish proceedings justified staying the English claim.

1. Expedition. The court identified four relevant considerations: objective urgency; the state of the court list and the effect on other court users; the procedural history, including delay; and irremediable prejudice to the respondent. The court may form a provisional view of the merits when deciding a procedural application.
2. The possible lapse of the funding obligation created a qualified case for urgency. However, the proposed timetable was too tight for a fair trial. The issues potentially included Spanish-law questions, alleged oral termination, representations and warranties affected by Covid-19, disclosure and notification duties, force majeure or change of circumstances, and the completion date. The claimant’s delay also weighed against expedition, although it would not necessarily be decisive if a fair trial remained possible.
3. Stay. The Spanish and English proceedings were related under Article 30(1), despite the inability to hear them together. The court followed the approach in JSC Commercial Bank Privatbank v Kolomoisky, [2019] EWCA Civ 1708, and accepted that practical inability to consolidate was a compelling reason against a stay.
4. The exclusive English jurisdiction clause in the Equity Commitment Letter was a powerful, though not insuperable, factor against staying proceedings commenced in England. The parties had deliberately divided jurisdiction between England and Spain by reference to the agreement being enforced. The Spanish proceedings were at an early stage, would take over 12 months, and their findings would not be binding in England.
5. The application for an expedited trial of the whole dispute was refused. The application for a stay under Article 30(1) was dismissed. Directions were made for service of the defence, reply and related schedules, with a case-management hearing to be listed if possible.