DR VÉRONIQUE MARIE ELISABETH SIMON v MS ANNE “ANOUK” TACHÉ & Ors

Where proceedings begun in an EU member state before the end of the Brexit transition period later become related to UK proceedings, Article 67 of the Withdrawal Agreement can preserve the operation of Articles 29 and 30 of Brussels Recast. A court is generally seised under Article 32 when the claim form is issued, rather than when permission to serve out is obtained. The same cause of action is assessed autonomously and broadly by comparing the essential facts, legal rules and relief sought. A request for a declaration that liability has not been proved may be substantively equivalent to a negative declaration of no liability. Article 29 then requires a stay where the foreign court was first seised. Independently, England must be clearly or distinctly the appropriate forum before service out is permitted.

The claimant alleged that Belgian art advisers had breached contractual, tortious and fiduciary duties in advising on artwork purchases and in receiving commissions. She obtained permission to serve proceedings in Belgium. The defendants challenged jurisdiction, relying on Articles 29 and 30 of Brussels Recast and on the common-law requirements for service out. They also opposed an amendment adding a dishonest assistance claim.

The defendants had earlier commenced Belgian proceedings concerning alleged harassment and defamation. Their amended submissions sought a ruling that the claimant had not proved fault, while the English proceedings sought relief concerning the same alleged breaches. The issues were whether the proceedings were related or involved the same cause of action, which court was first seised, and whether England was the appropriate forum.

1. Articles 29 and 30. Article 67 of the Withdrawal Agreement preserved Brussels Recast for proceedings instituted before 31 December 2020 and for later proceedings or actions related to them. The relationship between proceedings could arise after that date.
2. Seisin and same cause. The English court became seised on 10 May 2021, when the Claim Form was issued. The earlier service-out application was only a preliminary permissive step and was not one procedural unit with the later claim. The Belgian court became seised of the relevant cause of action on 3 May 2021, when the defendants sought a ruling that the claimant had not proved fault. Applying the autonomous and broad Article 29 test, that relief had the same essential object and cause as the English claims, despite different domestic causes of action and its procedural form.
3. Consequence. Article 29 required the English proceedings to be stayed while the Belgian court’s jurisdiction was established and required this court to decline jurisdiction if that jurisdiction was established. Alternatively, if Article 29 did not apply, the proceedings were sufficiently related under Article 30 and a stay would have been granted in the court’s discretion, given the risk of inconsistent judgments, the Belgian connections and the possibility of consolidation there.
4. Service out. The claimant established a good arguable case only under the property gateway and the constructive-trust gateway’s assets limb, together with the related-claim gateway for the proposed amendment. She failed on the contract, breach-in-jurisdiction, tort, and enactment gateways. There was nevertheless a serious issue to be tried against the individual defendants.
5. Forum conveniens. Belgium was overwhelmingly the more appropriate forum. The parties, defendants, governing law, communications, payments and services were closely connected with Belgium; related proceedings were pending there; and the claims could be consolidated there. The fact that artwork was later located in England carried little weight. Permission for service out should therefore be set aside. The Amendment Application was not determined because it was unnecessary.