EUPillar Smith’s Vitamins, Herbs Limited v Ceprodi Compagnie Europeenne De Produits Dietetiques SA [2010] EWHC 1025 (QB)

Summary

The claimant was a company domiciled in England. The defendant was a French company. The dispute arose out of a distributorship agreement. The defendant was acting as exclusive distributor of the claimant’s products in France. The contract, which was governed by the English law, specified that English and French courts had jurisdiction. There were parallel proceedings. The French court was seised on the 25th March 2008. However, the French proceedings, which were concerned with a return of an ascertained consignment of goods, appeared to be dormant. The English court was seised on 23rd September 2008; the proceedings were served in October 2008. The claimant in the English proceedings sought damage for loss of profit which had resulted from various breaches of the distribution agreement. The defendant challenged the jurisdiction of the English court, requesting a stay of the English proceedings. On 23rd April 2009, it was held by Master Leslie that the proceedings did not involve the same cause of action. However, the Master of the High Court went on to hold that the actions were related within the meaning of Article 28 of Brussels I. Master Leslie ordered for the English proceedings to be stayed with a view to avoiding the risk of irreconcilable judgments. On 12th January 2010, a permission for the claimant to appeal Master Leslie’s order was granted. On 22nd March 2010, the English High Court allowed the appeal, setting aside Master Leslie’s order. Mr Justice Eady held: “13 […] It is submitted by Mr. Withington that the subject matter of the French proceedings is a short readily isolable issue over the return of a specific consignment of goods or, in the alternative, repayment of the amount which the defendant says it has paid in respect of them. He described it I think as a “short delivery up point” which does not give rise to the same issues which the master canvassed. 14 It is the defendant's own case, as emerges from the French claim, that there is no risk of an irreconcilable judgment. First, it is expressly asserted that any arguments that the appellant may wish to raise in the French proceedings can have no bearing on its entitlement on the short delivery up point. Secondly, that the goods which form the subject matter of the French proceedings do not play any role in the English claim instituted by the claimant. […] 16 It is also submitted on the claimant's behalf that the master's reasoning appears to be based on potential arguments which were or might be open to either of the parties to raise in the proceedings. It is submitted that that is too speculative an approach to take and the court should focus in determining the article 28.3 point upon actual issues rather than speculative or potential issues. 17 The claimant, I am informed, has never stated that it would wish to argue that the non-delivery of the specific assignment of goods was based upon a failure by the defendant to make minimum orders; nor has the claimant stated that it would wish to raise the alleged or any breaches of the agreement by way of counterclaim or set-off within the French proceedings. It is not known whether it would be permitted to do so, but it does not intend to do so. Its position, says Mr. Withington, has been consistent in this respect throughout, namely that it wished to have the issues determined by the English court. An offer of an undertaking has been made to the English court to the effect that it would not raise its claims in the French court so as to give rise to the risk which the master apprehended. I accept that undertaking. 18 The point is made by Mr. Gallagher, on behalf of the defendant, that it would not be enforceable in France. Whether that is so or not, it plainly would be enforceable as an undertaking to the court in England by process of contempt if it became necessary to do so.” [16-18].