EUPillar Advent Capital plc v GN Ellinas Imports-Exports Ltd [2005] EWHC 1242 (Comm)

Summary

A vessel sank within 12 hours of leaving Cyprus. Its insurers denied liability. In May 2002, the assured brought proceedings against the insurers in Cyprus. The legal proceedings in Cyprus were initiated in breach of a choice-of-court agreement. As a result, on 12 Sept 2003, the insurers sought an anti-suit injunction which was duly granted by the English court. Cyprus joined the EU on 1st May 2004. On 22nd July 2004, the insurers commenced proceedings in England, seeking a non-liability declaration. On 15 Oct 2004, the assured challenged the jurisdiction of the English court, making an application to set aside service in a declaration action. On 14 Jan 2005, the assured made another application, seeking to set aside the anti-suit injunction which had been granted by the English court before Cyprus joined the Union. The application for the stay of the English declaratory proceedings was granted. Since the insurers’ claim for non-liability was initiated after 1 May 2004, Art 66 of Brussels was applied and the English court stayed its proceedings under Article 27 of Brussels I. The English court held that the anti-suit injunction (given in proceedings upon which Brussels I did not operate) was permanent, and there was no ground for it to be set aside. Mr Justice Colman held: “110 I therefore have no doubt that the public policy of this court must be consistent with the achievement of justice to both parties and with its obligations as a court of a Member State bound by the Judgments Regulation. Only by taking account of the judgment of the Cyprus Court on the entry of an appearance can those purposes be achieved. 111 I conclude therefore that since, subject to the Cyprus Court of Appeal reaching a conclusion contrary to that of Judge Michaelidis, it has been established that for the purposes of the application of Art.66, this court must yield jurisdiction to the court first seised, namely the Nicosia Court., this court must decline jurisdiction in respect of the insurers' declaration action. 112 The assured's application for a declaration in the declaration action and for those proceedings to be stayed or struck out therefore succeeds. […] 116 Against this background the commencement by the insurers after accession of the declaration action is entirely irrelevant. The fact that the English Courts are obliged not to exercise jurisdiction in those proceedings by reason of the effect of Art.66 does not mean that the English courts are precluded from hearing the assured's claim if the assured were now to invoke English jurisdiction as they are perfectly entitled and, indeed, obliged to do, if they wish to prosecute their claim. 117 Accordingly, I have no doubt that the incidence of accession has not been a change of circumstances such as would justify revocation of the injunction by this court. 118 It follows that the assured's application for the revocation of the injunction must be refused.” [110-2 and 116-8]