EUPillar Kolden Holdings Ltd v Rodette Commerce Ltd and another [2008] EWCA Civ 10

Summary

This was a commercial dispute in respect of agreements for transfer of shares in a Russian company. On 13 July 2006, the claimants (Amherst, Hensher and Conway) brought in England a claim against the defendants (Rodette and Taplow). In November 2006, the three companies assigned their rights in the transaction to Kolden. On 14th February 2007, the defendants started an action in Cyprus seeking a declaration that they were not liable to Kolden, Amherst, Hensher and Conway. On 16th February 2007, Kolden was given permission to be substituted for Amherst, Hensher and Conway in the English proceedings. The defendants challenged the jurisdiction of the English court, submitting that the Cyprus courts were first seised (for the purposes of Arts 27 and 28 of Brussels I) with their claim against Kolden. On 4th July 2007, the High Court dismissed the defendant’s challenge, holding that the English court had jurisdiction because it was and remained the first seised court. An appeal was made before the Court of Appeal. The appeal was dismissed. Lord Justice Collins stated: “44 I agree with the judge's conclusion that the critical question is whether, at the time the Cyprus proceedings were begun on February 14, 2007, there were then in existence two sets of proceedings involving the same cause of action and between “the same parties” within the meaning of Art.27 of the Regulation. If on February 14, 2007 there were two sets of proceedings involving the same cause of action and the same parties, then the subsequent substitution of Kolden for the original claimants would not matter. 45 The fact that as a matter of English law Kolden only became party to the English Action when it was substituted is irrelevant. The relevant question is whether Kolden and the original claimants are to be regarded as the "same party" for the purposes of Article 27. If they are, then the English court was and remains first seised of the proceedings between the original claimants (and later, by substitution, Kolden) and the appellants. […] 96 I would therefore dismiss the appeal, and express the hope that the parties (having wasted some £400,000 on this sterile exercise) will now turn their attention to dealing with the substance of their dispute.” [2008] EWCA Civ 10 [96].