SCOR Se v Barclays Bank Plc

JurisdictionEngland & Wales
JudgeChristopher Hancock
Judgment Date30 January 2020
Neutral Citation[2020] EWHC 133 (Comm)
Date30 January 2020
Docket NumberCase No: CL-2019-000058
CourtQueen's Bench Division (Commercial Court)

[2020] EWHC 133 (Comm)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS

OF ENGLAND AND WALES

COMMERCIAL COURT (QBD)

Royal Courts of Justice,

Rolls Building

Fetter Lane, London,

EC4A 1NL

Before:

Christopher Hancock QC

(sitting as a Judge of the High Court)

Case No: CL-2019-000058

Between:
SCOR Se
Claimant
and
Barclays Bank Plc
Defendant

Sonia Tolaney Q.C. and Nehali Shah (instructed by Freshfields Bruckhaus Deringer LLP) for the Applicant

Daniel Jowell Q.C. and Fred Hobson (instructed by Enyo Law LLP) for the Respondent

Hearing dates: 21,22 October 2019

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

DEPUTY JUDGE Christopher Hancock QC

Christopher Hancock QC:

Introduction.

1

This is the Defendant's (“ Barclays'”) application for a stay pending the outcome of related proceedings in France, under Article 30 of Regulation (EU) 1215/2012 (the “ Recast Regulation”) or pursuant to the Court's inherent jurisdiction/case management powers.

The essential facts.

2

The essential facts are not in dispute. I take the account principally from the Defendant's skeleton argument.

(1) The Claimant (“ SCOR”) is a reinsurance company incorporated in France. Mr Thierry Derez was one of its directors. Mr Derez was also the chairman and CEO of Covéa SGAM and chairman of Covéa Coopérations SA (together, “ Covéa”), a mutual insurance business with its principal place of business in France.

(2) On 24 August 2018, Covéa, a shareholder of SCOR, made an unsolicited offer to acquire a controlling shareholding in SCOR (the “ Offer”). Barclays was one of Covéa's financial advisors and prospective lenders in relation to the Offer.

(3) These proceedings, and related French proceedings, all concern French law claims brought by SCOR against Mr Derez, Covéa, and Barclays in connection with the Offer. It is alleged by SCOR that Mr Derez disclosed to Covéa and to its advisors, including Barclays, confidential information, which he obtained in breach of duties he owed to SCOR, and that the information was misused in relation to the Offer. SCOR's claims are denied by the defendant.

(4) Specifically, SCOR has commenced three sets of proceedings:

a. On 29 January 2019, SCOR issued proceedings in France (the “ French Criminal Court Proceedings”) by way of a direct prosecution (Citation Directe) before the Criminal Court of Paris against (i) Mr Derez for breach of trust under Article 314–1 of the French Criminal Code and; (ii) Covéa for concealment of breach of trust under Article 321–1 of the French Criminal Code. SCOR asks the court to find the defendant guilty of those criminal offences, and also claims compensatory damages from the defendant pursuant to Article 2 of the French Criminal Code. The offence alleged against Mr Derez is punishable by up to 3 years' imprisonment and a fine of €375,000 and additional sanctions, and the offences alleged against Covéa are punishable by a fine of €1,875,000 and additional sanctions. In the French Criminal Court Proceedings, SCOR seeks compensation of €300,000 from Mr Derez and €600,000 from Covéa. Both Mr Derez and Covéa have publicly denied the allegations and indicated their intention to defend the claims.

b. Later that same day, on 29 January 2019, SCOR commenced these proceedings (the “English Proceedings”) against Barclays. SCOR's claim is that: (i) in connection with the Offer, Mr Derez allegedly disclosed to Barclays confidential information which (it is said) he used and disclosed in breach of duties of confidence and loyalty owed to SCOR; and (ii) Barclays received the confidential information in circumstances where it allegedly knew or ought reasonably to have known that it was obtained and disclosed by Mr Derez in breach of confidence and SCOR's trade secrets, and misused and disclosed the information. As originally pleaded in the Particulars of Claim served on 29 January 2019, SCOR's claims in the English Proceedings were that Barclays:

i. Participated and/or assisted in a breach by Mr Derez of his obligations of loyalty and confidentiality, pursuant to Articles 1200 and 1240 of the French Civil Code.

ii. Unlawfully acquired, used or disclosed trade secrets of SCOR in circumstances where it knew or ought to have known that it obtained the trade secrets from Mr Derez, who had himself used or disclosed them unlawfully, such that Barclays is liable pursuant to Article L 151–6 of the French Commercial Code.

iii. Concealed a breach of trust committed by Mr Derez pursuant to Article 314–1 of the French Criminal Code, which was said to give rise to a civil action under French tort law. This last claim has since been deleted by consent.

iv. On the above grounds SCOR sought an injunction, delivery up, an inquiry, declaratory relief, and damages for diversion of management time and protective steps.

v. Barclays denies any wrongdoing, including on the basis that the identified information is not confidential.

c. On 6 February 2019, SCOR issued a writ of summons initiating proceedings in the Commercial Court of Paris against Mr Derez and Covéa (the “ French Commercial Court Proceedings”). SCOR's claims against Covéa in the French Commercial Court Proceedings are, broadly speaking, for knowing receipt, the use of allegedly confidential information and allegedly unlawful use and/or disclosure of trade secrets. The claims in the French Commercial Court Proceedings are also based upon the same underlying alleged breaches of duty by Mr Derez. SCOR claims damages of €810,000 from Mr Derez and €17,200,000 from Covéa.

3

Following the hearing before me, I was told that an application to stay the French Commercial Court proceedings, which had been made by the Claimant, had been dismissed, and I was provided with a copy of that judgment and submissions were made by the parties in relation to the relevance of that decision and the fact that those proceedings would now be ongoing. I was also informed that the next stage in these proceedings would be a collegiate hearing in March 2020, at which point a date for the final hearing would be set, which is likely to be between April and June 2020 depending on how many judges are to sit on that hearing.

4

I address the specific allegations made against Mr Derez further below, in the context of my consideration of whether the proceedings are related or not.

Article 30 of the Recast Regulation

5

Article 30 of the Recast Regulation provides:

“(1) Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings.

(2) Where the action in the court first seised is pending at first instance, any other court may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.

(3) For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”.

6

The parties were agreed that, under this head, there were essentially two questions that I had to answer. The first was whether the French criminal proceedings, which were first in time, were related to the English Commercial Court action before me. The second was whether I, as the Court second seised, should stay these proceedings, it being accepted that I had the power to do so under Article 30. The parties were also agreed that, although the civil proceedings which formed part of the criminal action were an “adjunct” to the criminal part of the proceedings, they were nonetheless civil and commercial proceedings within the meaning of the Regulation.

Are the actions related?

7

This Article has been considered in a number of authorities, and I was referred to a number of cases in this regard. I consider each in turn.

8

The first in time was the decision of the ECJ in The Tatry (Case C-406/92) [1999] QB 515. In that case the ECJ said this:

“53. In order to achieve proper administration of justice, that interpretation must be broad and cover all cases where there is a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive.

54. The cargo owners and the Commission contend that the adjective “irreconcilable,” which is used both in the third paragraph of article 22 and in article 27(3) of the Convention, must be used in the same sense in both provisions, meaning that the decisions must have mutually exclusive legal consequences, as was held in Hoffmann v. Krieg (Case 145/86) [1988] E.C.R. 645, 668, para. 22. They point out that the court there held, at p. 669, para. 25, that a foreign judgment ordering a person to make maintenance payments to his spouse by virtue of his conjugal obligations to support her is irreconcilable, within the meaning of article 27(3) of the Convention, with a national judgment pronouncing the divorce of the spouses.

55. That argument cannot be accepted. The objectives of the two provisions are different. Article 27(3) of the Convention enables a court, by way of derogation from the principles and objectives of the Convention, to refuse to recognise a foreign judgment. Consequently the term “irreconcilable … judgment” there referred to must be interpreted by reference to that objective. The objective of the third paragraph of article 22 of the Convention, however, is, as the Advocate General noted in his opinion (paragraph 28), to improve co-ordination of the exercise of judicial functions within the Community and to avoid conflicting and contradictory decisions, even where the separate enforcement of each of them is...

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    ...litigated in Italy at all. 196 The tension between these two Court of Appeal authorities was referred to in SCOR SE v Barclays Bank Plc [2020] EWHC 133. The Deputy High Court Judge observed: “11. Finally, the Claimant pointed out that there had been a debate in the authorities as to what wa......
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    ...orally, Mr O'Donoghue submitted that the applicant must show a compelling reason to grant a stay, citing SCOR SE v Barclays Bank plc [2020] EWHC 133 at [32] per Mr Christopher Hancock QC. Mr Hancock did say that, but I do not think he was seeking to enunciate any principle of general applic......
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