Perform Content Services Ltd v Ness Global Services Ltd

Sir Julian Flaux: Introduction

1. This appeal, with permission granted by Males LJ, raises a novel point as to the application of art. 33 of the Brussels Recast Regulation 1215/2012 (which applies to the proceedings, as they were commenced before 1 January 2021) in circumstances where the defendant is domiciled in England and the parties agreed to the non-exclusive jurisdiction of the courts of England and Wales. The defendant, as it was entitled to do without breaching that agreement, commenced proceedings on the same cause of action before the Superior Court of New Jersey in the United States, which was the court first seised.

2. The claimant then commenced proceedings in the London Circuit Commercial Court. The defendant issued an application under CPR Part 11 to stay those proceedings or for the English court to decline jurisdiction pending the final determination of the New Jersey proceedings. That application was heard by Stephen Houseman QC sitting as a deputy High Court judge and, by his order dated 21 December 2020, he dismissed the application. That is the order under appeal.

3. The factual background is relatively uncontentious and can be shortly stated. The claimant (‘Ness’) and the defendant (‘Perform’) are both companies incorporated and thus domiciled in England. Ness is a provider of software development services and designs and builds offshore development and support centres. It is a subsidiary of Ness Inc, a company incorporated in Delaware. Perform provides products and services in relation to sports data and analytics. In July 2019 it was acquired by the US based STATS Group.

4. On 28 February 2019, Perform, Ness and Ness Inc entered into a Development Center Agreement (‘DCA’) pursuant to which Ness agreed to operate an offshore extended development centre (‘EDC’) in Kosice, Slovakia and provide software development engineers and personnel to work at the EDC. Perform agreed to pay Ness for the services and personnel provided. Pursuant to clause 19 of the DCA, Ness Inc guaranteed the liabilities of Ness under the DCA.

5. Clause 20(f) of the DCA was the jurisdiction and governing law clause:

‘Governing Law and Jurisdiction.

The Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the Courts of England and Wales as regards any claim, dispute or matter arising under or in connection with this Agreement.’

6. A dispute between the parties arose in late 2019, following an inspection by the Group CTO of Stats Perform (the renamed STATS Group after the acquisition of Perform) of the EDC in mid-December 2019 and subsequent ‘commit data’ analysis by Stats Perform engineers based in the United States as to various performance criteria within the scope of the DCA. Perform stopped paying invoices submitted by Ness. On 15 January 2020, Perform sent a formal notice requiring various alleged breaches of the DCA to be remedied pursuant to clause 15. Ness retaliated by sending a Notice of Dispute to Perform on 21 February 2020 in respect of unpaid invoices totaling €1,023,227.70 and threatening legal proceedings in accordance with clause 20(f).

7. Perform then commenced the proceedings before the Superior Court of New Jersey (‘the NJ proceedings’), filing a complaint on 4 March 2020 against both Ness and Ness Inc, seeking damages (including punitive damages) and declaratory relief. The damages sought were for breach of the DCA, common law fraud and negligent misrepresentation. The non-contractual claims are advanced on the basis of New Jersey law rather than English law. The declaratory relief sought is that Perform is entitled to terminate the DCA for ‘cause’ pursuant to clause 15(c). Ness Inc was sued as guarantor.

8. On 9 April 2020, Ness commenced the present proceedings against Perform seeking declaratory relief and payment of its outstanding invoices. Ness Inc is not a party to these proceedings.

9. On 1 May 2020 Ness filed a motion challenging the jurisdiction in the NJ proceedings, which was dismissed by the Superior Court on 2 November 2020. Ness submitted a motion on 12 November 2020 asking the Superior Court to reconsider its decision. The result of that motion was not known at the time that the judge handed down his judgment in the present proceedings, but it was dismissed on 1 March 2021, prior to the hearing of this appeal.

10. The Brussels Recast Regulation 1215/2012 (‘the Regulation’) superseded and restated Council Regulation 44/2001 (‘Brussels I’) which had itself superseded and replaced the 1968 Brussels Convention. The provisions of Brussels I regulating lis pendens between member states (art. 21 and 22) were reproduced with some revisions as art. 29 and 30, with the addition of two new articles, 31 and 32, within Section 9 of the Regulation. Two new provisions were also included in Section 9 regulating lis pendens involving non-Member states, art. 33 and 34. These introduced some flexibility in the approach of a second seised court in response to the decision of the European Court...