DIRK VINCENT VAN HECK v GIAMBRONE & PARTNERS STUDIO LEGALE ASSOCIATO

For lis alibi pendens under Article 29 of the Brussels I Recast Regulation, the critical question is whether the court first seised has finally determined its jurisdiction. The existence of an outstanding appeal does not automatically require a stay, particularly where the appeal’s procedural validity is disputed. The English court may receive expert evidence of the foreign procedural law and determine whether the foreign court’s jurisdictional decision is final. The autonomous European-law meaning of seisin does not prevent consideration of the procedural rules of the relevant Member State. The court must apply Article 29’s conditions mechanically and must not substitute the provision’s underlying rationale for those conditions or speculate about the outcome of foreign proceedings.

An Italian law firm appealed against an order of HH Judge Parfitt refusing to stay a barrister’s English claim for professional fees. The firm had previously issued proceedings in Palermo seeking a declaration of non-liability. The Palermo court declined jurisdiction, but the firm later lodged an appeal which the barrister contended was out of time.

The first-instance judge relied on expert evidence of Italian procedural law and a certificate of res judicata in concluding that the Palermo decision had become final for Article 29 purposes. The central issue on appeal was whether the pending or purported appeal prevented final determination of the jurisdictional issue and required a stay of the English proceedings.

1. Appeal dismissed. The refusal to stay the English claim was correct.
2. The critical Article 29 question was whether the proceedings in the court first seised had been finally determined in relation to jurisdiction. The question was not simply whether an appeal, or something described as an appeal, remained outstanding: Moore v Moore and [2019] EWCA Civ 477 (in Easygroup Ltd v Easy Rent a Car Ltd) did not establish that every purported appeal preserved seisin regardless of its procedural validity.
3. Lis alibi pendens has an autonomous European-law meaning, but where the Regulation does not specify when seisin ends, the court may consider the procedural rules of the relevant foreign jurisdiction. Expert evidence of Italian law was therefore admissible and relevant. The first-instance judge was entitled to determine, as a question of fact, that the applicable Italian appeal period was 30 days and that the Palermo decision became final after that period expired.
4. The certificate of res judicata was not conclusive, but it was evidence supporting the expert’s conclusions and the finding of finality. The judge had properly taken account of its limited status.
5. The avoidance of irreconcilable judgments is the rationale of Article 29, not a substitute for its conditions. The judge was not required to speculate about the likely outcome of the Palermo appeal. The decision merely refused a stay and did not create a risk of irreconcilable judgments.
6. Article 29 did not confer a discretion once its conditions were identified. Since the Palermo jurisdictional decision was final, the condition requiring a stay was not satisfied.

• High Court (Queen’s Bench Division): appeal from the order of HH Judge Parfitt dated 17 June 2020 dismissed; refusal to stay the English proceedings upheld.
• Central London Civil Justice Centre: application by the defendant for a stay under Article 29 of EU Regulation 1215/2012 refused.