EUPillar McGraw-Hill International (UK) Limited v Deutsche Apotheker – und Arztebank EG & others [2014] EWHC 2436 (Comm)

Summary

The claimant, S&P, was an English company. The first-fourth defendants, SRR, were non-UK based investors. The English proceedings were initiated on 23rd March 2013. There were parallel proceedings in Amsterdam. In England, the claimant was seeking a non-liability declaration in the proceedings against defendants 1-4. The claim against the fifth defendant, ABN Amro, was somewhat conditional. If S&P were held liable to defendants 1-4, then ABN Amro were liable in respect of the same damage S&P were liable. ABN Amro challenged the jurisdiction of the English court. It was held that the English court did not have jurisdiction under Article 6(2) of Brussels. It did not have jurisdiction under Article 5(3) either. Nonetheless, jurisdiction was established under Article 5(5) of Brussels I. Therefore, the English High Court dismissed the defendants’ challenge to the jurisdiction. Mr Justice Cooke held: “11 It is self-evident that it would be best for the issues of liability to SRR on the part of ABN Amro and S&P to be determined by the same court at the same time and for any claims between S&P and ABN Amro arising out of the subject matter of that dispute to be resolved at the same time in a single or combined action. Any other course would result not just in duplication of work in two jurisdictions but the possibility of one or both courts in the individual jurisdictions being deprived of the full picture when making its decision as a result of limited documentation or evidence from an absent participant in the primary events said to give rise to liability on one or both of S&P and ABN Amro. There is the possibility of inconsistent judgments which could create difficulty of enforcement under Article 34 of the Regulation. Duplicative or overlapping proceedings are obviously undesirable and it is the policy of the law to avoid this if it is possible to do so. […] “It was the London branch which engaged S&P to rate the CPDOs and it was through its London branch that it principally dealt with and communicated with S&P in London in relation to S&P's rating of the CPDOs. Six individuals are named, all of whom were based in London except Mr Drexler who was based in New York. ABN Amro's dealings with S&P in relation to the rating of the CPDOs included the supply of information, including information on the nature and operation of CPDOs and their terms. S&P used this information as part of the materials it relied upon in carrying out its own analysis of the credit rating to be assigned to the CPDOs. ABN Amro's London branch was made aware of the modelling assumptions and parameters utilised by S&P in determining its credit ratings and the vast majority of the rating work was carried out by personnel based in England. The decision in respect of the credit rating to be assigned to the CPDOs was made by S&P's credit committees predominantly based in London. The decision to issue the credit ratings took place in London. […] ABN Amro […], principally through its London branch was closely involved with all aspects of the CPDOs including devising them, obtaining ratings for them and marketing them. 69 In these circumstances, I have no doubt that, so far as ABN Amro is concerned, the nexus between its London branch and the dispute is such as to render it natural to describe the dispute as one which has arisen out of the activities of the branch. It could not be said to have arisen out of the activities of ABN Amro in The Netherlands, nor anywhere else in the world. London was the centre and focus of all its relevant actions, though it was domiciled elsewhere, though Mr Drexler was based in New York, and the marketing took place in the three European countries to which I have already referred. S&P have therefore established jurisdiction under Article 5.5.” [11, 68 and 69]