Summary
The dispute between the parties arose out of a sale of goods agreement which was concluded on CIF terms. The buyer, Evialis, was domiciled in France; the seller, was a company incorporated in Italy. The goods had to be delivered in Rouen, France. The CIF contract, incorporated a clause stating that the “The insurance to be effected with first class underwriters and/or companies who are domiciled or carrying on business in the United Kingdom or, who, for the purpose of any legal proceedings, accept a British domicile and provide an address for service of process in London […].” [6]
The goods were found to be damaged upon delivery in France. There had been proceedings in France against the owners of the vessel. The French court had awarded damage to the buyers.
In England, the claimant brought a claim against the Italian insurers, seeking indemnity. The English proceedings were for a relatively small amount (about €45000) to cover the costs incurred in the French proceedings. The basis for the English court’s jurisdiction was a choice-of-court agreement which was inferred from a “service clause” contained in the Certificate of Insurance.
The defendants challenged the jurisdiction of the English court. They further sought a stay of the English proceedings on the ground of Article 27, noting that they had already initiated proceedings in Italy, seeking a non-liability declaration. More controversially, in this case, the claimant made an application for an anti-suit injunction with a view to restraining the defendants from continuing with the proceedings in Italy.
The court stated that the English court had jurisdiction under Art 23 of Brussels I. However, on the basis of Articles 27 and 28, the judge made an order for a stay of the English proceedings. No anti-suit injunction was granted.
“89 […] I do accept the insurers’ submission, that if the proper approach is to look at the English proceeding as a whole, to ask what is the central or essential issue and to consider whether that is the same as that in the Italian proceedings, the issue in both proceedings is the insurers’ liability in respect of the cargo damage.”
“98 […] I have concluded that [the service clause] does not apply to proceedings by the insurers for non- liability declarations, and that it does not provide for the exclusive jurisdiction of the English court. The appropriate forum for the insurers’ proceedings for non-liability declarations was, when they brought the proceedings, either Italy, if article 16 of the General Conditions is effective and applicable to provide for Italian jurisdiction, or France under article 12 of the Brussels Regulation.
102 […] The right that the parties agreed to confer upon Evialis was always subject to the possibility that the insurers would bring proceedings against them for non-liability declarations in another jurisdiction. The most that Evialis could properly have expected is that if the insurers did bring proceedings in another Member State, the machinery of the Brussels Regulation, and in particular articles 27 and 28, would be available to ensure that the proceedings were not brought illegitimately. The starting point of the Regulation is that the court first seised should decide whether it has jurisdiction over the dispute, and if so should proceed to adjudicate it. I decline to infer that the parties intended to go further and contemplated that the English courts should intervene outside the regime of the Regulation.” [89, 98 and 102]