Lis Pendens in UK Law

We do not have decide whether that was correct, though we note that, if he his right, there is this oddity: that there is a clear lis pendens rule, with associated court first seized rule, for parallel cases within the EU but none for parallel cases where one is running within an EU Member State and one without. What Barling J did not decide was that Art. 2 conferred extra-EU subject matter jurisdiction generally.

The most obvious exception is where an actual exercise of jurisdiction (as by the granting of a Mareva injunction or the making of an Anton Piller order or the arrest of a vessel) precedes service: plainly the court is seised of proceedings when it makes an interlocutory order of that kind.

The connection between the principle of forum non conveniens and the principle of lis alibi pendens is undeniable, and was recognised by Hobhouse J in S & W Berisford Plc v New Hampshire Co, [1990] 2 All ER 321 at p.331j and Potter J at Arkwright Mutual Insurance Co v Bryanston Insurance Co Ltd, [1990] 2 All ER 335 at p.347 (as well as Barling J in the Catalyst case).

"It may properly be inferred from Article 21, read as a whole, that a court's obligation to decline jurisdiction in favour of another court only comes into existence if it is established that proceedings have been definitively brought before a court in another State involving the same cause of action and between the same parties.

Although the burden is on a claimant to show, when seeking leave to serve out of the jurisdiction, that England is the appropriate forum where the case can most suitably be tried for the interests of all the parties and the ends of justice, the fact of continuing proceedings in England against other defendants on the same or closely allied issues virtually concludes the question, since all courts recognise the undesirability of duplication of proceedings and the lis alibi pendens cases make this clear.

What does arise is this: has the court any jurisdiction under the section to vacate the registration? Mr. Justice Plowman thought that he had not; and I think he was perfectly right. It seems to me that the section does not provide for doing anything of the kind in these sort of circumstances.

From the discussion which followed, a general principle may be derived, which is that, if a clearly more appropriate forum overseas has been identified, generally speaking the plaintiff will have to take that forum as he finds it, even if it is in certain respects less advantageous to him than the English forum. This may display many features which distinguish it from ours, and which English lawyers might think render it less advantageous to the plaintiff.