FKI Engineering Ltd & Anor v Stribog Ltd [2010] EWHC 1160 (Comm)

Case No 2010 FOLIO 61[2010] EWHC 1160 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 May 2010
Before
MR JUSTICE BURTON
Between
FKI ENGINEERING LTDClaimants2. FKI LTDClaimantSTRIBOG LTDDefendant
Mark Templeman QC and Emily Wood (instructed by Davis & Co) for ClaimantsBarry Isaacs and Stephen Robins (instructed by Pinsent Mason LLP) for DefendantHearing Hearing date: 12 May 2010
JudgmentMr Justice Burton :
[1]This has been an application by the Defendant Stribog Ltd, formerly DeWind Ltd, (“DWL”) for a stay of proceedings (an application that the Court decline jurisdiction has not been pursued before me) pursuant to Article 28, alternatively Article 27, of Council Regulation (EC) No 44/2001 (“the Judgments Regulation”): the Application Notice recites the grounds as being that “proceedings between the same parties have been brought in the Landgericht Lübeck in Germany [“the German proceedings”], which court was first seised: the [German] proceedings involve the same cause of action and/or are related proceedings within the meaning of said Articles”.[2]Those Articles (both in Section 9 of the Judgments Regulation) read as follows:
“Article 27 1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court. Article 28 1. Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings. 2. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. 3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”

Article 28

[3]Article 30 is relevant to both such Articles:
“Article 30 For the purposes of this Section [9], a court shall be deemed to be seised: 1. at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant, or 2. if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court.”

For the purposes of this Section [9], a court shall be deemed to be seised:

[4]Although Counsel for DWL, Mr Barry Isaacs and Mr Stephen Robins, in their skeleton preserved an argument by reference to Article 27, they recognise that if they could not succeed on Article 28 then they would not succeed at all, and in the event oral argument was exclusively put on the basis of Article 28, i.e. that the German proceedings and these proceedings are “so closely connected”within the meaning of Article 28.3.[5]The action that is sought to be stayed by DWL is one brought by the Claimant companies (“FKI”) against DWL in this Court, as assignees of claims under a “Business Transfer Agreement” (“BTA”) dated 1 August 2005, resulting from the failure of DWL to pay the purchase price under the BTA.[6]There has been, at any rate since last year, a substantial and international dispute, extending to the United States and Korea, between the groups of which FKI and DWL respectively form part. Suffice it to say that the background can be summarised as follows: i) On 4 July 2005 FKI, the previous owners of DeWind GmbH (“DWGmbH”) sold the shares in DWGmbH to a company now called DeWind Holdings (“DWH”). ii) On 1 August 2005, DWGmbH sold its assets to DWL by a Sales and Transfer Contract – the BTA – containing an English law and English jurisdiction clause (Mr Isaacs does not now concede that this is an exclusive jurisdiction clause, although, as appears in paragraph 10 below, his client so described it in the German proceedings). Reference is somewhat quaintly made to ‘Milton Keynes’ (where there is a District Registry of the High Court):
“7. This contract is exclusively governed by English law. Place of jurisdiction for all disputes under and in connection with this contract is Milton Keynes.” iii) On 29 August 2008 DWGmbH entered into insolvency procedures in Germany – an Administrator, Dr Pannen, was appointed on 9 October 2008 – leaving its former owners FKI as principal creditors. FKI allege that DWL and its Group (“the DW Group”) have stripped out the assets of DWGmbH, leaving only the debts. iv) By an agreement dated 31 August 2009 (“the Assignment Agreement”) FKI took an assignment from the Administrator of DWGmbH of all claims by DWGmbH against (inter alios) DWL. Even before such assignment, FKI had started to make a variety of claims against DWL and the DW Group, including claims in the United States, relating (inter alia) to its handling of DWGmbH’s assets. By a letter dated 14 August 2009 (“the 14 August letter”) attorneys, on behalf of FKI, gave notice to DaeWoo Shipbuilding and Engineering Co Ltd (“Daewoo”) of Korea, which had apparently purchased the DW business from Composite Technology Corporation (“CTC”), the ultimate owner of the DW Group, drawing such claims to Daewoo’s attention. The letter includes the following passages: “We represent [FKI] who were the previous owners of [DWGmbH] … We write primarily in connection with the insolvency proceedings over the assets of [DWGmbH] … 1. … The information available to the administrator and our clients suggests that the know-how, intellectual property, assets and employees that form the core of the [DW] business were transferred from [DWGmbH] to [DWL] and then transferred again to DeWind Inc. … Due to the position that [DWGmbH] was left [in] by its Group it was unable [to] and did not fulfil [its] obligations … It is strongly believed that the transactions mentioned above were undertaken at an undervalue. Therefore the parent company of our clients is now aggressively seeking to challenge these transactions based on the evidence obtained to date.”
The letter then sets out the various claims which it is said that the Administrator of DWGmbH had against DWL and the DW Group, both under various provisions of German insolvency law and tort law, and by reference to claims for restitution of assets and intellectual property rights. After the Assignment Agreement, an action was then commenced, in the United States District Court in California on 2 September, against various members of the DW Group by FKI as assignees of DWGmbH, for a restraining order in relation to any proceeds of the sale to Daewoo. v) DWL’s response was to bring the German proceedings on 18 September 2009 for a declaration of non-liability to FKI. I now turn to consider the German proceedings against this background.

The German Proceedings

[7]The pleadings in the German proceedings are (in the original and in translation) before me, and their context and purpose are quite plain. There is an express reference, as will be seen, to the 14 August letter, and its contents. The purpose of the German proceedings is, on their face, to obtain a declaration that the various claims listed in that letter have no foundation. There is, as will be seen, an express exclusion from the German proceedings of any consideration of what are called “any potential purchase price claims” (“etwaige Kaufpreisansprüche”) under the BTA. Thus the pleadings commence (as translated): “We hereby raise an action against [FKI] on behalf of and duly authorised by [DWL] with the application to declare that neither [FKI Company] has any claims or rights, especially no rights of avoidance, no contractual claims, claims in tort or other claims against [DWL], with the exception of any potential purchase price claims plus, as the case may be, (default)interest under the [BTA] made between [DWGmbH] as the seller and [FKI] as the purchaser.” [My underlining.] The pleading continues: “[FKI] wrongly assert – in Germany and abroad – and especially in business relationships, that they have rights against [DWL],in particular rights of avoidance and claims of [DWGmbH] assigned to them. … By asserting such alleged rights and claims [FKI] try to prevent and/or impede a transaction between CTC and … Daewoo … regarding assets and liabilities of the DeWind business unit. For this purpose [FKI’s] lawyers have asserted such rights and claims vis-à-vis Daewoo in a letter dated 14 August 2009 … With this Action [DWL] seeks a declaration that the legal relationships described in the application do not exist … Purchase price claims of [FKI] that might exist under the [BTA] are explicitly not the subject matter of this Action.” [The latter underlining is again mine.][8]The pleadings then launch, in section (ii), into an explanation as to why it is that there was nothing wrong with the handling by DWL of the affairs and assets of DWGmbH, setting out the history from DWL’s point of view from 2004 onwards. In paragraph 3, in the course of this exegesis, there is the following repetition of what has been already made clear earlier:
“As already explained, possible purchase price claims of [FKI] under the [BTA] are no subject matter of the action.”
[9]It is then recited that there is no ground for complaint about what has occurred, and in particular no right of avoidance of any of the subsequent transactions. In section (iii) at paragraph 1 there is recited:
“Under the pressure of [FKI]’s legal advisers, the insolvency administrator Dr Pannen on 31 August 2009 assigned all allegedly existing rights of avoidance and all other allegedly existing contractual and statutory claims, claims in tort and other claims of [DWGmbH] against numerous natural and legal persons, inter aliaagainst [DWL], to [FKI].”
[10]There then follows in part B of the pleading an examination of each of the various claims which had been asserted in the 14 August letter, and/or in the United States proceedings, to explain why none of those claims had any foundation. In turn, the pleading deals with the alleged “possible rights to rescission under insolvency law”, to “an avoidance action”, to “claims under corporate law” of DWGmbH, and to “actions in tort”. Such review of the claims, which are said to have no foundation, then terminates with the following coda: “For any other claims that might result from the [BTA] the parties agreed on “Milton Keynes” as being the exclusive place of jurisdiction. Any such claims are therefore not subject matter of the present action for a declaratory judgment.” [Again, my underlining.][11]The pleading then explains why DWL has “the necessary and legitimate interest to receive a negative declaratory judgment”, namely that FKI has: “… asserted claims against [DWL] in their letter of 14 August 2009 … [to] Daewoo, which they had assigned to them in the confirmation of assignment dated 31 August 2009. Furthermore [FKI] have asserted such claims in the proceedings before the United States District Court and submitted the confirmation of assignment of 31 August 2009. [DWL] does not need to bear that its reputation and standing is impaired in an unacceptable manner by allegations of [FKI] towards third parties, especially Daewoo about allegedly existing claims and rights of avoidance.[12]The final conclusion of the pleading is that DWL’s action is well founded, because of the unfounded nature of the allegations made in the 14 August letter and the Californian proceedings, and in particular: “Insofar as the allegation is raised there that [FKI] had claims against [DWL] which did not result from the [BTA], such allegation is without any factual or legal basis.” [Once again, my underlining.][13]In the following paragraph (2), the gist of DWL’s case is succinctly stated, namely that such claims against DWL so assigned to FKI, apart from claims resulting from the BTA, which are not the subject matter of the action, “do not exist”: “2. The claims asserted by [FKI] do not exist. [FKI] have no rights of avoidance nor any other claims, with the exception of potential purchase price claims under the [BTA] that do not need to be decided in these proceedings.” [Underlined by me, as before.][14]The Lübeck court on 22 September 2009 directed DWL to give clarification of its claim, and such clarification was given by a statement dated 9 October 2009 (“the October Statement”). Once again, DWL made clear that:
“Not included within the subject matter of the Action are any purchase price claims on the part of [FKI] arising from the [BTA].”
[15]The clarification continues:
“[FKI] have asserted several claims as part of a request for a preliminary injunction pending before the United States District Court … to which they are allegedly entitled based on the [Assignment Agreement]. … [The] matter primarily involves alleged claims on the part of the insolvent [DWGmbH] … against [DWL] … The insolvency administrator Dr Pannen has assigned the alleged claims of [DWGmbH] to [FKI].”

The English Proceedings

[16]Meanwhile the two FKI companies (both of them English companies), as assignees of GmbH, made claims in this country against DWL (an English company) pursuant to the BTA. FKI’s first step was to make a statutory demand under the Insolvency Act 1986 against DWL seeking the unpaid purchase price of €32,608,590. DWL’s solicitors, by letter dated 2 October 2009, responded to the statutory demand by disputing any liability under the BTA to either DWGmbH or FKI, and requested a copy of the Assignment Agreement: all that had previously been exhibited in the Californian proceedings, and referred to both in those proceedings and the German proceedings, was a “confirmation of assignment” signed by Dr Pannen on 31 August 2009, rather than the full document, albeit that DWL plainly knew, for example, of Clause 7, the English law and jurisdiction clause, because such was expressly referred to in the German proceedings by DWL, as set out in paragraph 10 above. Such copy was supplied on 5 October.[17]Further correspondence followed, and there was a substantive response by DWL’s solicitors dated 9 November 2009:
“Our client disputes that any debt is due to either of [DWGmbH] or [FKI] … For the avoidance of doubt, should either of your clients commence legal proceedings in relation to the alleged claim, our client will seek to strongly defend the claim and make a substantial counterclaim as already detailed. … We maintain that the assignment to [FKI] of any claims of [DWGmbH] against [DWL] under the [BTA] appears to be an attempt by [FKI] to seek to obtain a tactical advantage in relation to the wider dispute with [DWL’s] ultimate parent company in the United States, … CTC.”
[18]FKI commenced the English proceedings on 21 January 2010. Having set out the terms of the BTA, the Particulars of Claim assert in paragraphs 21 and 22 the failure by DWL to make payment of the various instalments of the purchase price and in the event, by virtue of such default, that the entire amount of the purchase price thereby become due and payable, and thus:
“23. By reason of the matters aforesaid, the Claimants are entitled to [payment] of the full amount of the purchase price together with VAT, alternatively damages.”
[19]Entitlement to interest is pleaded in paragraphs 24 and 25, and the prayer seeks “payment of the purchase price in the sum of … €32,888,771 … alternatively damages [and] interest”.[20]By letter dated 15 January 2010, DWL’s solicitors confirmed that they were authorised to accept service of proceedings, but continued “to the extent that your proposed proceedings raise any issues that are already subject to the proceedings that are ongoing between our respective clients in … Lübeck, we fully reserve our clients’ rights to have any such proceedings stayed.”

The February Statement

[21]On 12 February 2010 in the German proceedings, DWL served a voluntary statement, i.e. not, as with the October Statement, one resulting from any direction of the Lübeck court (“the February Statement”). It alleged for the first time that the Assignment Agreement was void, because it did not “satisfy the requirements of the German principle of specification … for assignments”.[22]It is common ground that this did not constitute an actual amendment to the pleadings, in the sense that no permission to amend (if such be required at German law) was sought. Mr Isaacs, for DWL, asserts that it was simply the spelling out of what had already been intrinsic within the German proceedings. Mr Templeman QC, who with Miss Emily Wood has appeared for FKI, submits that it was a de facto amendment. In any event it is now the existence, within the German proceedings, of an assertion by DWL that the assignment is void at German law that is relied upon by Mr Isaacs as an issue common to both proceedings (for it is obvious that, if and when a defence comes to be served in the English proceedings, DWL will deny the validity of the assignment), and hence part of the foundation for his case that related actions are pending in Germany and in this Court.

DWL’s Case

[23]Mr Isaacs recognises that it is difficult, if not impossible, for him to show that the case falls within Article 27. The claim in the German proceedings is for a declaration that DWL is not liable to FKI in respect of the claims (not including any purchase price claims under the BTA), as asserted by FKI in the 14 August letter. In the English proceedings, FKI make the purchase price claims under the BTA. What the “same cause of action” is within Article 27 is to be determined by reference to an autonomous interpretation, which “cannot be restricted so as to mean two claims which are entirely identical” (Gubisch Maschinenfabrik KG v Palumbo [1987] ECR 4861) and (see The Tatry C-406/92 [1999] QB 515 ECJ at 538 paragraph 39) “the “cause of action” comprises the facts and the rule of law relied on as the basis of the action”; but, however broadly construed, it is wholly clear that these German and English proceedings do not involve the same cause of action. As Rix J said in Glencore International AG v ShellInternational Trading & Shipping Co Ltd [1999] 2 Lloyd’s Rep 692 at 697 (by reference to Articles 21 and 22, which were the then equivalents of Articles 27 and 28):
“The triple requirement of same parties, same ‘cause’ and same ‘objet’ entails that it is only in relatively straightforward situations that art. 21 bites, and, it may be said, is intended to bite. After all, art. 22 is available, with its more flexible discretionary power to stay, in the case of “related proceedings”, which need not involve the triple requirement of art. 21. There is no need, therefore, as it seems to me, to strain to fit a case into art. 21.”
[24]As to Article 28, there was no great dispute between the parties as to the approach. Mr Templeman drew my attention to Underwriting Members of Lloyd’s Syndicate 980 v Sinco SA [2009] Lloyd’s Rep I & R 365 (“Sinco”) at paragraphs 34 and 54, where Beatson J agrees with an earlier dictum by Gatehouse J that it is not enough to render proceedings related that “one issue could arise in both actions”. The test, derived from Kalfelis v Schroeder [1988] ECR 5565 is that of the risk of irreconcilable judgments, enshrined in Article 28.3. Unlike the case where Article 27 is being considered, when “in order to determine whether two claims brought between the same parties before the courts of different Contracting States have the same subject matter, account should be taken only of the claims of the respective applicants, to the exclusion of the defence submissions raised by a defendant” (Gantner Electronic GmbH v Basch Exploitatie Maatschappij BV 2003 Case C-111/01 ECJ) it is made clear in Civil Jurisdiction and Judgments (5th Edition) by Briggs and Rees (2009) at 2.242 that “Article 28 allows a court to look at issues raised by claim [and] defence”.[25]This is clear from the decision of the Court of Appeal in Research inMotion UK Ltd v Visto Corporation [2008] EWCA Civ 153 “RIM” in which the judgment of the Court (Mummery, Jacob LJJ and Mann J) included the following passages:
“35. … The Regulation relies on mechanical tests – the mechanical test of the court first seised, and the further largely mechanical test in Article 30 as to how one ascertains which court is first seised. In determining these matters what is important is the action, not the claim. … 36. … Article 28 involves a different concept, tested by reference to the matters referred to in Article 28(3). The exercise of seeing whether actions are related may well require one to look beyond the claim documents and into the defences. In the present case it is this feature which potentially raises the topsy-turvy situation identified above. If one can look at the Defence, and if the Defence relies on post-claim matters, then there is scope for the relationship between actions to come from post-claim matters. … 38. The relevant parts of the Defence in the present case are set out above … (It must be remembered that for these purposes the Counterclaim, which is conceded to be a separate action for these purposes and to come second, is not relevant at this point in the argument) … 40. …Lewison J [below] seems (on one view) to have adopted the notion that a defence might be latent in a claim, and that in considering whether actions were “related” one should only consider “such defences as are latent in or pregnant with the claim”
. If that is what he meant to say then we do not accept that the concept of “defences latent or pregnant within a claim” makes any sense. The proper course in considering the relationship is to consider the Defence as well …”[26]Mr Isaacs submits that the allegation of invalidity of the assignment, although not made in the German proceedings when they were commenced, is embryonic or inherent in those proceedings. The difficulty Mr Isaacs has is twofold: i) First he is not able to say that the scenario falls plainly within the words of RIM. It is not the case that the German proceedings were an action in which a claimant is relying on an assignment for the purposes of his claim, when it may be anticipated, and, even if not anticipated, turns out to be the case, that a defendant alleges the assignment to be invalid. DWL, the claimant in the German proceedings, was itself asserting the existence of the assignment as part of its case: see in particular the passage cited in paragraph 9 above. It is then said that the assigned claims (other than the claims by reference to the BTA which are expressly not to be dealt with) are not well founded claims, do not exist (see paragraph 13 above). In the clarificatory October Statement, as cited in paragraph 15 above, it is recited that “the insolvency administrator Dr Pannen has assigned the alleged claims”, not “has allegedly assigned the alleged claims”. The defendant in those proceedings agrees that there was an assignment. All that such defendant would want or need to do in resisting the declaration sought by DWL in such a case would be accept or admit the existence of the assignment (FKI would certainly not be asserting its invalidity), and then set out its case as to why the claims asserted in the 14 August letter were indeed well founded. ii) This position is made even clearer by the fact that, in the German proceedings, DWL expressly, and repetitively, exempted from consideration by the German courts the purchase price claims under the BTA (see the recited, and underlined, passages in paragraphs 7, 8, 10, 12 and 13 above). Those purchase price claims, which were not to be dealt with in the German proceedings but which (see paragraph 10 above) were implicitly to be dealt with in “Milton Keynes”, were also assigned under the same Assignment Agreement; and, as DWL’s own expert Mr Schulz makes plain (at paragraph 6 of his third witness statement), as one would expect, at German law, if the Assignment Agreement were invalid, such invalidity would pertain to the entire agreement and not just to parts of it. It is thus clear that there was in the German proceedings no challenge to the Assignment Agreement, and that, indeed, by expressly excluding the purchase price claims, because they were to be litigated elsewhere, DWL was abjuring any assertion of invalidity of the assignment.[27]Thus, in order to allege such invalidity, it would be the claimant DWL and not the defendant FKI, who would be, by altering its case substantially, introducing the issue for the first time. When asked to clarify its case by the Lübeck court, it did not alter it in the October Statement (see paragraphs 14 and 15 above).[28]It is thus, in my judgment, quite clear that invalidity of assignment had not (see paragraph 22 above) already been intrinsic within the German proceedings. The alternative case that Mr Isaacs put forward is that, by excluding the purchase price claims, DWL was only excluding from the German proceedings a claim in debt for the price, and not a claim for damages for failure to pay the purchase price, so that, in some way, that part of FKI’s claim (of course contained in the alternative in the English Particulars of Claim, as set out in paragraphs 17 and 18 above), was embraced in the declaration of non-liability sought in the German proceedings. This contention seems to me to be wholly unarguable. It was built up by Mr Isaacs in his skeleton argument (though not dealt with orally) by reference to English cases illustrating the clanking of the chains of the old causes of action as to the difference between debt and damages. However: i) He had no support from his German lawyer in this regard. There was some discussion in the evidence about the type of claims that were covered in the Assignment Agreement (by reference to a learned discussion of the meaning of the word “Ersatzansprüche”), but this highlighted all the more the absence of any dealing by Mr Schulz with the meaning of the word in the German proceedings translated as “purchase price claims”, namely “Kaufpreisansprüche”, so as to suggest that such would include a claim for an unpaid purchase price, but would not include a claim for damages forfailure to pay that purchase price. ii) In any event, it is wholly clear from consideration of the German proceedings (carried out by me in paragraphs 7 to 13 above) that what is being addressed, and addressed in detail, is the unfoundedness of the claims other than those pursuant to the BTA in respect of the unpaid purchase price, the claims set out in the 14 August letter based on insolvency law, corporate law, avoidance actions and actions in tort (see paragraph 10 above): i.e. there was no question of a distinction such as Mr Isaacs now sought to make.[29]A half-hearted attempt was made by Mr Schultz in paragraph 11 of his second witness statement to explain away the express exclusion of the purchase price claims arising from the BTA from the German proceedings. He says (at paragraph 11):
“The exclusion of the alleged purchase price claims was due to the reduction of court fees, which would have amounted to € 310,386 according to German law, if the alleged purchase price claims of € 33 million were included in the motion, but only amount to € 13,368 without them.”
[30]But the reason for the exclusion of the purchase price claims was given in the German pleadings themselves, and I have recited it in paragraph 10 above. It was the existence of what is there described as the exclusive jurisdiction clause in the BTA (set out in paragraph 6(ii) above) – incidentally, it may be noted, a clause which would have governed claims in damages as well as in debt, another ground for the unsustainability of Mr Isaacs’ argument above – to which DWL referred as explaining its exclusion of the purchase price claims from the German proceedings. Even if there were any substance in Mr Schulz’s explanation, one overtly inconsistent with what is said in the German pleadings itself, it may be noted that the court fee would have similarly applied to the damages claim: and in any event the fact would remain that, for whatever reason, there was a deliberate exclusion of the claims under the BTA (now the subject matter of the English proceedings) from the German proceedings.

Court First Seised

[31]It seems to me clear that, against this background, Mr Isaacs can place no reliance whatever on RIM. The reality is plain, that it was only in the February Statement that for the first time the validity of the Assignment Agreement was put in issue: that there was a new case by the claimant. It seems also clear that the making of the voluntary February Statement on 12 February 2010, and the content of it, which was in its entirety the new case as to invalidity – a case which DWL might have made, even if it did not have a copy of the Assignment Agreement prior to 5 October 2009 (see paragraph 16 above), at any time after that date – was plainly prompted by the issue of the English proceedings: I note what in retrospect are the significant words of DWL’s solicitor’s letter of 15 January 2010, cited in paragraph 20 above. As appears in paragraph 22 above, the February Statement did not constitute an amendment of the German proceedings, but in the circumstances it was plainly the first introduction into the German proceedings of the issue of invalidity of the assignment; with its knock-on effect, not only on the claims, which were the subject matter of the declaration of non-liability, contained in the German proceedings, but also on the purchase price claims which were not so contained, and which had by then become, as was inevitable given the jurisdiction clause, the subject of the English proceedings. FKI have by now put in a defence in the German proceedings, in which their position with regard to the jurisdiction of this court, and disputing the jurisdiction of the Lübeck court, was expressly reserved.[32]It is in this context that this Court is now considering the impact of Article 28. Unlike Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32 in which (per Lord Saville at 38H) “the essential dispute between the parties is whether the actions are related, and the debate is concentrated on whether there is a risk of irreconcilable judgments resulting from the two sets of proceedings”, there is no doubt in this case that the two actions now pending are related, and the issue between the parties is that which was common ground in Sarrio, namely which of the courts is to be regarded as the court first seised. Towards the end of his submissions, Mr Isaacs sought to submit as an alternative case that, since invalidity of the assignment is on any basis, as from the February Statement, within the German proceedings, but not yet in the English proceedings (because there has not yet been a plea by DWL in its defence as to such invalidity) the German court is first seised on that basis. That argument is plainly unsustainable in the light of RIM, referred to in paragraph 25 above, from which it is clear that the inevitable assertion in the defence of invalidity can, indeed must, be taken into account in assessing the relatedness of the two actions.[33]The issue therefore is as to which of the two courts, the Lübeck court and this court, is to be regarded as the court first seised within the meaning of Article 28: the German proceedings, commenced in September 2009, into which the issue of invalidity was introduced for the first time by the February Statement, or these proceedings, commenced in January. In answering this question in relation to the impact of Article 28, both Counsel rely on recitals in the Judgments Regulation to support their rival contentions:
“11. The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction. ... 15. In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States. There must be a clear and effective mechanism for resolving cases of lis pendens and related actions and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation that time should be defined autonomously.”
[34]There are thus two important purposes, there expressed, intrinsic in the Judgments Regulation: first is the need for the rules of jurisdiction to be highly predictable and for there to be a clear and effective mechanism for resolving cases of related actions, and the second is to minimise the possibility of concurrent proceedings and to ensure the absence of irreconcilable judgments. Mr Isaacs submits that there are now two related actions pending, that the test must be assessed as of now, and that, of the two related proceedings, the German action was commenced first, so the Lübeck court was first seised. Mr Templeman submits that the course proposed by Mr Isaacs would undermine a highly predictable system, if the nature of the first proceedings was permitted to be changed after the commencement of the second proceedings, so as to render them related; so that, in a case such as this, in which the issues now the subject matter of the English proceedings were expressly excluded from the German proceedings when they were commenced, the court first seised must be that in which those excluded issues were to be litigated, even if subsequently they are introduced into the earlier proceedings. He submits that it is in effect ‘forum-shopping’, and undermining predictability, if a party can unilaterally convert an earlier unrelated action into an earlier related action.[35]Mr Templeman relies on the cases relating to amendment of pleadings, Grupo Torras SA and another v Al-Sabah and others [1996] 1 Lloyd’s Rep 7, and Sinco, to which I referred in paragraph 24 above. In Grupo Torras, which was an Article 27 (formerly Article 21) case, notwithstanding that it appears that the Spanish domestic court treated an amendment once allowed as relating back to the time of filing of the proceedings, the autonomous definition of the words first seised dictated that, where an amendment introduced new parties into a case, the court first seised was that in which the second action in point of time was commenced, in which those parties were joined ab initio, and not, despite the doctrine of relation back, the original action into which the parties were subsequently joined by amendment. In Sinco, the issue was resolved by Beatson J against the applicants by reference to Article 27, but he proceeded obiter to conclude that, if the application to stay by reference to Article 27 had not failed, he would have concluded that subsequent amendments to the English proceedings to add, after the issue of the Greek proceedings, claims not previously contained in the English proceedings would not render the English court the court first seised. Beatson J concluded (in paragraph 61) that:
“In a case where amendment can only be made with the permission of the court, it must be the position under the Regulation that the proceedings can be seen as pending in relation to the amendment only once an order allowing it has been made and the claim form reissued.”
[36]He then went on to deal with the position where permission of the court is not required for an amendment. He concluded, on the facts of that case, and after considering the impact of the need for predictability, the need for a clear and effective mechanism, the risk of conflicting decisions and the desirability of avoiding forum-shopping, that the result would be the same where no permission to amend was required.[37]Mr Isaacs points out that Beatson J was considering, since it was Article 27 in issue, a different date – where proceedings involving the same cause of action and between the same parties are brought – from that to be considered in Article 28 – where related actions are pending. The latter, he submits, must face and adopt the reality of consideration of the two actions which are pending at the date of the application before the court. In any event, he submits that the position is different here, where there has not been an amendment, and the Lübeck court has effectively treated the new issue as part of the pleadings.[38]I agree with Mr Templeman that the amendment cases are on point, and that, in effect, the introduction of this new case, involving a relatedness previously abjured, into the German proceedings, is equivalent to an amendment. It is also clear that Sinco, although no more than persuasive, and certainly so given that Beatson J’s decision on the Article 30 point was obiter, is of assistance. It is plain that Beatson J was not simply considering Article 27, but that he was addressing in terms Article 30, which must plainly have the same construction for the purposes of both Articles 27 and 28 – indeed the preamble to Article 30 makes such plain, as I have pointed up in paragraphs 2 and 3 above. In my judgment, although the court may be faced on an application under Article 28 with two related actions which are then pending in two courts, the question still is which was the court first seised.[39]In this case, if an Article 28 application had been brought by DWL after the commencement of the English proceedings on 21 January but prior to the February Statement on 12 February, it is clear that there would have been no related actions, and the Article 28 application would have failed. It is only the introduction of the February Statement, subsequent to the English proceedings, which has rendered the two actions related. In my judgment, it is inconsistent with predictability, and does not create a clear and effective mechanism, if a party can unilaterally change the nature of the earlier action: so as in this case to fulfil the requirement, or the forecast, contained in DWL’s solicitor’s letter, that they reserved their client’s rights to have any proceedings stayed “to the extent that [the English proceedings] raise any issues that are … subject to the [Lübeck] proceedings,” by then taking steps tointroduce an issue into the Lübeck proceedings which had not previously been there. In my judgment, just as under Article 27, where a first action is subsequently amended to add a party or a cause of action which has, in the meanwhile, been raised in a second action, it is the court of the second action which is first seised, so also where a first action which is not related to a second action is subsequently altered or amended so as to become so related, it is the court of the second action, unrelated at the time when it is issued, which is the court first seised for the purpose of Article 28. This, in my judgment, is all the more so on the facts of this case, where the assigned purchase price claims were so firmly excluded from the German proceedings. Mr Isaacs submitted that the existence of a discretion in the court second seised is a reason for a more flexible approach to the definition of the court first seised. I do not accept this. It seems to me that the question of which court is first seised is an independent question (applicable, as I have said in both Articles 27 and 28), and the introduction of discretion, or the fallback existence of discretion if the decision were inappropriately made, would do damage to the concept of predictability, which the Judgments Regulation requires.[40]There is thus no discretion for this court to exercise, because this court is first seised. Article 28 makes it plain that it is only the court second seised which has the discretion to stay. Absent any agreement of the parties, it must now be for the Lübeck court to consider the application for a stay. Although it will plainly not be quite so straightforward for an English court to decide the issue of German law as to whether the assignment is invalid (no witnesses of fact will be required), such can be done with the assistance of expert witnesses, and, given the presumption lying behind the Judgments Regulation that, subject to the proper and autonomous operation of the effective mechanism of lisalibi pendens,each court of the European Union is as competent as the next to decide matters of law of a Member State, the usual principles of forum non conveniens are excluded.[41]Such principles would only have arisen in this court if there had been a discretion, i.e. if this court were second seised, and even then it is plain (see the words of Ognall J in Virgin Aviation Services v CADA Aviation Services [1999] I.L.Pr 79, referring to the Jenard Report) that “where actions are related the first duty of the court is to stay its proceedings”. If I had a discretion, I would obviously be to an extent influenced by the forum non conveniens argument to which I had referred, which would enable a decision by the Lübeck court which would not require expert evidence from German lawyers, but simply the submissions of German Counsel, to decide what seems to be a straightforward question. But on the other side there would be placed, if I were to exercise a discretion, the history of the case to which I have referred, namely that, from the very beginning, DWL expressly limited the case before the Lübeck courts to a declaration of non-liability relating to the various claims asserted in the 14 August letter involving wide-ranging questions of German law, and left claims arising from the BTA to be dealt with by the English courts. If it now is the case that there is one issue of German law, relating to the validity of the assignment, to be decided as part of the package otherwise expressly left to the English court by its non-inclusion before the Lübeck court, I would not conclude that would be a reason for staying English proceedings which were always anticipated by DWL (see paragraph 10 above), and properly commenced by FKI. There would however be matters of case management which might be capable of being exercised, if I had discretion, to avoid parallel and possibly inconsistent judgments, such as the staying of the proceedings until after a decision by the German court, if I were satisfied that the German court could deal with the question of invalidity of the assignment as a preliminary issue, though no evidence as to whether that would be possible has been put before me. But in the event, I am satisfied that I do not have any such discretion because, pursuant to Articles 28 and 30 of the Judgments Regulation, this Court is the court first seised, and any such discretion falls to be exercised by the German court.[42]For these reasons the Defendant’s application for a stay of these proceedings is dismissed.

Cited in 4 later judgments