EUPillar Underwriting Members of Lloyd’s Syndicate 980 & Ors v Sinco SA [2008] EWHC 1842 (Comm)

Summary

The defendant, a Greek company, had authority to bind Greek motor insurances on behalf of the claimants, Members of three Lloyd’s syndicates for various years. In Jan 2007, the claimants initiated proceedings in England, but the claim form was not served till 29th June 2007. The claims were: 1) Fraudulent back dated policy cancelations; 2) Misrepresentation claim (the claims were presented by the defendant as significantly lower); 3) A claim that the defendants failed to account to it for the premium. 4) A claim for damages for breach of jurisdiction agreement (the latter claim was added in June 2007). It should be noted that there was an English choice-of-court between the parties. On 11 April 2007, before being served with the English proceedings, the Greek company initiated proceedings in Greece. The Greek claims were: 1) Claim for clientele compensation under a Greek statute; 2) A claim for tortious damages due to unlawful termination of the agreement; 3) Claim for compensation. The Greek company challenged the jurisdiction of the English courts. A stay of the English proceedings was requested on the ground of Article 27. The English court rejected the application by noting that the claims were different, and thus the requirements of Article 27 were not satisfied. It was held that: 50 If the proper approach is (as Andrew Smith J stated in Evialis's case) to look at the proceedings as a whole, and to ask what is the central or essential issue in the Greek proceedings and these proceedings, on Sinco's own arguments, the substantive claims advanced and the issues are different. The Greek proceedings involve claims arising outside contract and founded on tort or statute. The English claims, including the jurisdiction clause claim, are founded on alleged breaches of the contracts contained in the binders. In this respect, this case is to be distinguished from Evialis v SIAT and Bank of Tokyo- Mitsubishi Ltd v Baskan Gida Sanayi Ve Pazaralam AS , in which the English claims that were stayed were mirror images of the claims in the Italian courts. “51 It is, moreover, significant that the English proceedings were instituted in January. Although Sinco had not been served with them at the time the Greek proceedings were instituted, the main part of this action is clearly also the first in time. The question is whether the claim for breach of contract in the jurisdiction clause claim should be separated from the claims of other breaches of the same contracts. […] 54 […] That scheme, he stated, appears to anticipate that a dispute as to the jurisdiction of the court to entertain a substantive dispute will arise either by way of challenge to jurisdiction in the court first seised or by reason of the commencement of proceedings involving the same substantive dispute before a second court. Notwithstanding what the Court of Appeal said about the cause and object, it also doubted that jurisdictional disputes were “causes of action”. […] 67 […] the cause of the jurisdiction clause claim differs from that of the remainder of the claims in the English proceedings because the facts relied on differ. The facts giving rise to the jurisdiction clause claim – the institution of the Greek proceedings – had not taken place when the claims were issued in January.” [50-51, 54 and 67].