EUPillar British Sugar Plc v Fratelli Babbini di Lionello Babbini & Co SAS and Others [2004] EWHC 2560 (TCC)

Summary

The claim in the main action settled. (In the main action, the claimant, British Sugar Plc, brought a claim against an Italian Company, Babbini, and some other defendants (including Signior Babini). The main action was for the damages resulting from a failure of a pulp press which was delivered to the claimant.) The cause of the failure of the Press was a gearbox which was delivered to Babbini from BF Engineering(‘BF’). A claim against BF was brought under Article 6(2). BF challenged the jurisdiction of the English court, invoking a choice-of-court agreement between BF and Babbini. The English court upheld the jurisdictional challenge, holding that there was a valid agreement within the meaning of Article 23. It went on to state there was no discretion for the English court to exercise under Art 6(2) because the main action, which had settled, was no longer pending before the English court. H.H. Judge Richard Seymour Q.C. held: “51 For the reasons which I have given the application of BF succeeds and I grant the relief sought. I do that without regret. It seems to me that it would be a serious indictment of English and European Union law if a dispute between ltalian parties arising under a contract made and performed in Italy, expressed in the Italian language and governed by Italian law were to be compelled to be litigated in England simply as a result of the historical accident that the goods the subject of the contract were subsequently incorporated, in the press, which was sold to an English company and then failed. Now that the main action has been finally resolved there is nothing remotely English about the dispute between Babbini and BF. Every conceivable aspect of the dispute is Italian. Perhaps the ultimate irony is that the forum clause was not put forward initially by the party now seeking to rely upon it, BF, but by the party seeking to resist its application, Babbini.” [51]