Summary
The claimant, Med, was an English company. The defendant, Traveller, was a company domiciled in Cyprus. They were parties to an agency agreements under the terms of which Traveller was obliged to make accommodation bookings on behalf of Med. An English jurisdiction clause was incorporated. Med sold its business in February 2009.
On 14th May 2009, Med commenced proceedings in England, claiming an account in respect of all sums held by the defendant, and asking for the payment of the sums which are found to be due.
Traveller made an application for a stay of the English proceedings on the ground that there were parallel proceedings in Cyprus.
Master Moncaster noted that the English court had jurisdiction. Nonetheless, on 9th February 2010, he granted the defendant’s application for a stay of English proceedings. A permission to appeal was given by the Master.
On 11th May 2010, the English High Court dismissed the appeal. Mr Justice Peter Smith held:
“5 Both Cyprus and the United Kingdom are member states for the purposes of the Judgment Regulations. It is common ground that, subject to arts 27 and 28 , both the English and Cypriot courts have jurisdiction to determine both Med’s and Traveller’s claims. The English court has jurisdiction by virtue of the jurisdiction clause and art.23 of the Judgment Regulations and the Cypriot court has jurisdiction by virtue of art.5 because Cyprus was the place for the performance of the 2007 Agreement.
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35 Even if neither party chooses to raise defensively its claim in the proceedings brought against it there nevertheless will be the need to address the fact that proceedings are taking place in parallel in different jurisdictions. Miss Edge submitted that the proceedings will be different and the evidence will be different. With respect to Miss Edge I think that submission is premature on the basis of the information currently available to me. Further if both parties choose to use their respective claims defensively both sets of proceedings will be determining both claims. That will necessarily lead to the potential for conflicts which recital (15) of the Judgment Regulations says the regulations were designed to avoid. It would lead to both courts adjudicating the identical issues.
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61 […] The purposes of the regulations are as far as possible to ensure efficient and just disposal within the Member States and an avoidance of identical actions proceeding in differing jurisdictions with the potential difficulties. To allow the appeal would create precisely the difficulties the regulations are designed to avoid. If Gantner is to be interpreted to have that effect in my view it is wrongly decided and I will decline to follow it for that reason. However I have determined in my view the Gantner case is confined solely to the unilateral form of set off identified in Austria and the Netherlands. It is not in my view intended to have any application to the forms of set off in English law identified in this judgment.
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67 The only difference which was highlighted by Miss Edge is that the English court might be slightly advantaged because the Agreement is covered by English law. However that is not in my view a significant justification for allowing the two actions to carry on. I have already observed that English law experts will still be required in Cyprus to evaluate Traveller’s claim there and that will carry on irrespective of any order I make. What will happen however is that English law will be applied according to expert evidence there to the contract and English law will be applied by English judges in relation to the accounts. It is in my view another classic example of duplication which the regulations are designed to avoid. [..]
68 Therefore if I am wrong on art.27 I would unhesitatingly exercise the discretion under art.28 to stay the English proceedings.” [5, 35, 61 and 67-68].