Jamieson v Wurttemburgische Versicherung AG & Anor

Where proceedings in different Member States raise the same cause of action, the English court must use the mechanism in Article 29(2) of the Recast Regulation to establish which court was first seised. It should not determine that issue itself where the relevant foreign orders are ambiguous and the question is before the foreign court.

Comity also prevents the English court from assuming jurisdiction on the basis that foreign proceedings constitute an abuse of EU law while the foreign courts are considering that issue. The stay therefore remains in place pending clarification by the foreign court.

The claimant was injured in Germany in a road traffic accident and brought proceedings in England against the taxi insurer and his employer’s bank. The insurer had previously issued proceedings in Germany seeking a negative declaration of non-liability. The English proceedings were stayed by consent in favour of the German proceedings.

The Munich Regional Court initially treated the German court as seised on 13 June 2018, but that decision was set aside by the Munich Higher Regional Court, which also criticised the negative declaratory action as abusive. The claimant applied to lift the English stay, arguing that the English court was first seised or should act on the alleged abuse. The central issues were how first seisin should be established and whether the English court could intervene while the German courts considered jurisdiction.

1. Application refused. The claimant’s application to lift the stay was refused. The defendants’ cross-applications did not arise.
2. The orders of the Munich Regional Court and Munich Higher Regional Court were ambiguous as to whether the German court was first seised. Article 29(2) of the Recast Regulation provides the mechanism for resolving that uncertainty. The High Court could request the German court to inform it of the date of seisin and was willing to do so, but would not decide the issue itself.
3. That conclusion followed both from the statutory mechanism and from comity. The question was before the German courts, which were better placed to resolve it. The parties had also agreed that the issues of first seisin and jurisdiction should be determined through the German proceedings.
4. The court declined to lift the stay on the alternative basis that the German negative declaration was an abuse of EU law. Although the reasoning of the Munich Higher Regional Court was powerful and attractive, the existence and consequences of any abuse remained matters for the German courts. The approach was also inconsistent with the principles stated by the CJEU in Turner v Grovit, Case C-159/02 [2005] 1 AC 101, concerning interference with the mechanisms governing lis alibi pendens.
5. Permission to rely on Professor Dannemann’s expert evidence was refused because it played no decisive part and was not reasonably required to resolve the application.
6. Following judgment, the court agreed to request the Munich Regional Court under Article 29(2) to provide the relevant date of seisin or deemed seisin.