Summary
The claimant, WMS Inc, was a company incorporated in the United States. The defendant, B Plus, was an English company. The English proceedings were initiated on 21st February 2011. The claimant sought a declaratory relief: (1) termination of contract; (2) declaration of non-liability for the ending of negotiations in March 2010.
There were parallel Italian proceedings, which were commenced on 21st April 2010. In the Italian proceedings, B Plus was suing WMS Spain. B Plus made a request for a stay of the English proceedings on the ground of Articles 27 and 28 of Brussels I. The application was dismissed. In this context, the English High Court held:
“53 Both parties referred to and adopted the approach indicated by Advocate General Lenz in Owens Bank Ltd v Bracco (C-129/92) [1994] E.C.R. I-117 [1994] I.L.Pr. 140 at [76]–[79], in which he indicated the importance of three factors: first, the extent of the relatedness and the risk of mutually irreconcilable decisions; secondly, the stage reached in each set of proceedings, and thirdly, the proximity of the courts to the subject matter of the case.
54 In my judgment the application of these (non-exclusive factors) militates strongly against allowing the present application.
55 So far as the first factor is concerned, (as already noted) there is no serious or appreciable risk of irreconcilable outcomes. The focus and objectives of the two actions are not the same: the art.1337 Claim in Italy is concerned with whether WMS Spain is liable for ending the discussions, whilst the Negotiation Claim in London (including the counterclaim which B Plus will be entitled to make against WMS Inc) is concerned with whether WMS Inc is liable for ending such discussions with B Plus. These are different questions. However, even if (which is highly unlikely) both were to be answered affirmatively, this would simply mean that WMS Spain and WMS Inc were jointly and severally liable for the same tort/delict. These would not be irreconcilable outcomes. […]
56 So far as the second factor is concerned (the stage at which both actions have reached), the strong likelihood is that the trial here would determine all the relevant issues between the two real parties to the dispute (WMS Inc and B Plus) well before any first instance determination of the Italian Proceedings. […].
57 So far as the third factor is concerned (the proximity of the courts to the subject-matter of the case), Mr Houseman accepted that some, but not all, of the underlying factual circumstances of the Negotiation Claim took place in Italy. However, he submitted that this did not mean that the Italian Court was a more, still less the most, appropriate or expedient forum for determination of the issues at the heart of this case. He relied on the domicile of B Plus, the reliance on events which took place in England in January 2010 and the trial of the Supply Contract claim in the jurisdiction. There are factors which militate each way, but even if the full weight of this factor is weighed in B Plus’s favour, I do not regard it as outweighing the other considerations in favour of letting the English Action proceed to trial.
58 I therefore refuse to exercise the Court’s discretion either to decline jurisdiction in respect of the Negotiation Claim, or to stay that claim pending the outcome of the Italian Proceedings.
[…]
60 In Kolden Holdings [2008] I.L.Pr. 20 at [96] Lawrence Collins L.J. expressed the hope that the parties, having spent a large amount of money on what he regarded as a sterile exercise, would now turn their attention to dealing with the substance of their dispute. I repeat the expression of that hope in the present case.” [53-55 and 60].