EUPillar Jacobs & Turner Ltd v Celsius Sarl, Court of Session (Outer House) [2007] CSOH 76 (Lord Reed)

Summary

In this action, Jacobs & Turner Ltd sought a judgment declaring that Celsius sarl had materially breached certain of their contractual obligations and ordering them to perform their contractual obligations by providing the pursuers with specific categories of information and documents is sought by the pursuers. Jacobs & Turner Ltd House, a clothing manufacturer based in Scotland, entered into a distributorship agreement with Celsius sarl, a company based in France, to sell their goods in France and Andorra. The French agents had raised proceedings in France seeking an order for the termination of the contract alleging inter alia breach by the manufacturers of an exclusivity clause together with compensation and the manufacturers in turn raised proceedings in Scotland against the agents. The defenders maintained that the Scottish court should decline jurisdiction and dismiss the action, or in any event, sist the proceedings in accordance with Arts 27 or 28 of Brussels I. It was not in dispute that the Scottish and French proceedings were between the same parties, that the French court was the court first seised and that the French court would have jurisdiction to deal with the matters raised in the Scottish proceedings (para 68). Therefore, the court dealt with whether the Scottish and French proceedings had the same cause and whether they involved the same subject matter in terms of the English text of Art 27 of Brussels I. In reaching a decision, the court analysed the relevant case-law of the CJEU along with the opinions delivered by AGs as well as that of House of Lords, considered texts of Brussels I in English and in other languages, took account of Recitals and paid attention to the explanatory reports of the Brussels Convention in relation to the corresponding provisions therein (paras 36-51). The court found that the proceedings had the same cause since they were based on the same contractual relationship (para 68). Next, the court dealt with whether the actions had the same subject matter which is understood as not requiring an exact or formal identity between the two actions in the jurisprudence of the CJEU, but rather to the two proceedings could give rise to mutually exclusive legal consequences (para 68). The court considered at para 69 that while this action also sought the enforcement of contractual obligations, an action had already been brought in the French court for the termination of the same contract and for compensation consequent upon its termination. Thus, there was a risk that, an order by a Scottish court for specific performance would be irreconcilable with the outcome of the French action (para 71). The court concluded that if both sets of proceedings involving the same parties started in France and Scotland continued, they could give rise to mutually exclusive legal consequences (paras 73-75) and therefore declined jurisdiction under Art 27 of Brussels I in favour of the French courts and dismissed the action (para 80). This is a practical interpretation of the notion of the same cause of action by considering the aims of Brussels I and the case-law of the CJEU. The court considered Art 28 of Brussels I very briefly by stating that the application of Article 28 only arises if the court’s conclusion was wrong that Art 27 was applicable (para 76) and underlining that there could be no doubt that if the actions were not within Article 27, they would be related actions for the purposes of Art 28 of Brussels I (para 77). The court stated that in that case the court would exercise its discretion under Art 28(2) to decline its jurisdiction in order for the Scottish proceedings to be consolidated with pending French proceedings which would serve the purpose of a single litigation binding on both parties, reducing the overall length and complexity of the litigation and eliminating the risk of inconsistency (para 78).