Banca Intesa Sanpaolo SPA & Anor v Commune Di Venezia

A statement of case may be struck out for abuse where it introduces a new claim outside the ambit of the claim form. A new claim ordinarily requires a material change in the essential factual basis of the cause of action. Additional factual detail and references to related proceedings do not create a new claim where the relief and essential basis remain unchanged. A case-management stay is exceptional where the English court has jurisdiction, particularly where the parties have selected exclusive English jurisdiction. The risk of inconsistent judgments is insufficient, especially where a stay would circumvent the Brussels Regulation.

The claimant banks sought declaratory relief concerning interest-rate swaps entered into with the defendant, an Italian municipal authority. The defendant had separately commenced Italian proceedings alleging breaches of advisory obligations under earlier agreements and Italian law. After submitting to the English jurisdiction, the defendant applied to strike out references to those agreements and proceedings in the Particulars of Claim under CPR 3.4(2)(b), or alternatively to stay the English proceedings under section 49(3) of the Senior Courts Act 1981 and CPR 3.1(2)(f).

The issues were whether the disputed paragraphs introduced a new claim outside the Claim Form, constituted an abuse of process, or justified a stay pending determination of the Italian jurisdiction challenge.

1. The strike-out application was dismissed. Abuse of process under CPR 3.4(2)(b) requires misuse of the court’s process, including conduct that is manifestly unfair or significantly impedes the just disposal of proceedings. The word “obstruct” denotes impediment to a high extent.
2. A pleading may be struck out where it raises a new claim outside the Claim Form. For limitation purposes, this includes adding or substituting a new cause of action. Applying Jalla v Royal Dutch Shell PLC [2020] EWHC 459 (TCC), a new cause of action requires a material change in the essential features of the factual basis of the old cause of action.
3. The disputed paragraphs did not introduce a distinct cause of action. The declarations sought were the same as those in the Claim Form. References to the Mandate Agreement, the ISA and the Italian proceedings supplied further context but did not alter the essential factual basis, which remained the entry into and terms of the swap documentation.
4. The Claim Form was, in any event, wide enough to encompass claims connected with the transactions, including the Italian claims, particularly through declaration (k). The court expressed no view on the merits or on whether the declarations would ultimately be granted. It also found no sharp practice, irrelevance, manifest unfairness or substantial obstruction.
5. The stay application was also refused. Where jurisdiction exists under Article 26 of Regulation (EU) 1215/2012, and at least some claims fall within Article 25, exceptionally strong grounds are required for a case-management stay. The exclusive English jurisdiction clauses weighed against a stay. Articles 29 and 30 did not apply, and a stay would circumvent the Regulation. The Italian jurisdiction was itself being challenged, and delay would not promote expeditious disposal.
6. Costs were ordered on the standard basis. The application was not sufficiently outside the norm to justify indemnity costs.