SDL International Ltd v Centre de Co-operation Internationale en Recherche Agronomique pour le Developpement [ChD]
| Jurisdiction | England & Wales |
| Judge | NAL Davis,Lord Bingham of Cornhill LCJ,Otton,Robert Walker L JJ |
| Judgment Date | 21 July 2000 |
| Court | Chancery Division |
| Date | 21 July 2000 |
Chancery Division.
NAL Davis QC (sitting as a deputy High Court judge). Lord Bingham of Cornhill LCJ, Otton and Robert Walker L JJ.
Jonathan Turner (instructed by Taylors) for the claimant.
Zoe O'Sullivan (instructed by K Legal (KPMG)) for the defendant.
The following cases were referred to in the judgment:
Biguzzi v Rank Leisure plcWLR [1999] 1 WLR 1926.
Dresser UK Ltd v Falcongate Freight Management LtdELR [1992] QB 502.
Foseco International Ltd's Patent, Re [1976] 2 FSR 244.
Kloeckner & Co AG v Gatoil Overseas IncUNK [1990] 1 Ll Rep 177.
Molins plc v GD SpA [2000] CLC 1027.
Neste Chemicals SA v DK Line SA (“The Sargasso”) [1994] CLC 358.
Zelger v SalinitriECAS (Case 129/83) [1984] ECR 2397.
Conflict of laws — Stay of proceedings — Related actions — Proceedings in English and French courts by same parties involving same cause of action — Whether English of French court first seised — Whether English court seised on issue or service of proceedings — Civil Jurisdiction and Judgments Act 1982, Sch. 1 (Brussels Convention), art. 21.
This was an appeal by the claimant from the decision of a master ordering a stay of the proceedings commenced by the claimant, an English company (“SDL”), against the defendant French corporation (“CIRAD”), on the basis that the French court was the court first seised of proceedings between the same parties involving the same cause of action under art. 21 of the Brussels Convention.
By a written licensing agreement of 1996 SDL agreed to manufacture and supply to CIRAD certain thermo-detector equipment. The agreement was governed by French law and conferred jurisdiction on the courts of Paris and/or London. Disputes arose and CIRAD in 1999 commenced proceedings in Paris complaining of breaches of the licensing agreement and seeking sums said to be due under it. After service on it of the French proceedings SDL issued proceedings in England claiming various heads of relief in respect of the licensing agreement. Before the English proceedings were served on CIRAD in France the French proceedings were entered on the roll at the French court and the French court thereby became seised of the proceedings under French domestic rules. Therefore the French court was seised of the proceedings after issue of the English proceedings but before they were served. On that basis, applying Dresser UK Ltd v Falcongate Freight Management LtdELR [1992] QB 502 and Neste Chemicals SA v DK Line SA (“The Sargasso”) [1994] CLC 358, the master stayed the proceedings under art. 21 of the Brussels Convention. The claimant appealed arguing that those authorities had been superseded by the introduction of the Civil Procedure Rules, and that by virtue of CPR, r. 7.5 an English court was seised of proceedings for the purposes of art. 21 on issue of the claim form.
Held dismissing the appeal:
The law in this context had not been changed by the introduction of the Civil Procedure Rules. The underlying reasoning of the Court of Appeal in the pre-CPR authorities continued to hold good. Under English law, for the purposes of art. 21 of the Brussels Convention, proceedings were not definitively pending, and the English court was not first seised for the purposes of the article, until service of the claim form on the defendant. (Dresser UK Ltd v Falcongate Freight Management LtdELR[1992] QB 502andNeste Chemicals SA v DK Line SA (“The Sargasso”)[1994] CLC 358applied.)
NAL Davis QC:
1. This is an appeal from a decision of Master Price, given on 14 April 2000, whereby he ordered a stay of the proceedings commenced by the claimant, an English company called SDL International Ltd (“SDL”) against the defendant, a French corporation called Centre de Cooperation Internationale en Recherche Agronomique Pour le Developpement (“CIRAD”). The issue raised by this appeal, which is described by counsel for SDL as being of some importance, arises under art. 21 of the Brussels Convention on civil jurisdiction and judgments. Shortly put, the issue is this: is the English court first seised within the meaning of art. 21 of the convention when a claim form is issued, as SDL contends, or is the English court first seised within the meaning of art. 21 of the Convention when the claim form is served, as CIRAD contends?
2. The matter arises in this way. SDL is a company which manufactures and supplies equipment for testing textile materials. CIRAD is a corporation formed or sponsored by the French Government to carry out and co-ordinate agricultural research. By a written licensing agreement made on 15 October 1996 it was provided that SDL would manufacture and supply to CIRAD certain thermo-detector equipment, and would develop and subsequently manufacture and supply a final pre-production prototype of such further equipment. This agreement is said to have been subsequently varied by a supplemental agreement, made partly in writing and partly orally.
The written licensing agreement of 15 October 1996 contained a number of detailed provisions. Clause 14 contained a jurisdiction clause, which reads as follows:
“Jurisdiction
(a) This agreement shall be governed by and construed in accordance with the laws of the State of France. This agreement shall be deemed to have been entered into at Montpelier, France, regardless of the places of signing by the parties hereto or the order of their signing.
(b) In case of any dispute the courts of Paris and/or London have sole jurisdiction.”
3. Disputes subsequently arose. On 22 October 1999 CIRAD commenced proceedings in the Tribunal de Commerce of Paris against SDL. These proceedings, which were fully particularised, were served on SDL in England on 26 November 1999. By these proceedings CIRAD claims sums of money alleged to be payable under the licensing agreement, damages alleged to be due by reason of alleged breaches of the licensing agreement, and certain other relief.
4. On 7 December 1999, that is after service on it of the French proceedings, SDL issued a claim form in the High Court of Justice, Chancery Division (Patents Court) in London, claiming various heads of relief in respect of the licensing agreement of 15 October 1996, as said to have been varied, including claims for declaratory relief, claims for repayment of sums allegedly due, damages for alleged breach of the agreement, and certain other relief. These proceedings were served on CIRAD in France on 14 January 2000.
Particulars of claim thereafter were served on 28 January 2000.
5. In the meantime, the French proceedings commenced by CIRAD were entered on the roll at the French court on 7 January 2000. It was common ground before me that, under French domestic rules, the French court is first seised of a legal action when it is entered on the roll at the court. Accordingly, the French court was seised of the French proceedings some seven days before the English proceedings were served, although about a month after the claim form in the English proceedings had been issued in London.
6. It was also common ground before me that the proceedings in the French action brought by CIRAD involved not only the same parties but also the same cause of action as the proceedings in the English action commenced by SDL. I should emphasise that I am not called upon at this stage to comment on the correctness or otherwise of the competing allegations made in these sets of proceedings.
7. Articles 21, 22 and 23 of the Brussels Convention read as follows:
“Article 21
Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion decline jurisdiction in favour of that court.
A court which would be required to decline jurisdiction may stay its proceedings if the jurisdiction of the other court is contested.
Article 22
Where related actions are brought in the courts of different Contracting States, any court other than the court first seised may, while the actions are pending at first instance, stay its proceedings.
A court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the law of that court permits the consolidation of related actions and the court first seised has jurisdiction over both actions.
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.
Article 23
Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court.”IRAD, basing itself on the provisions of art. 21, sought a stay of the English proceedings on the footing that, for the purposes of art. 21, the French court was first seised. The master acceded to that application and ordered a stay. The Brussels Convention does of course have force of law in the UK by reason of s. 2(1) of the Civil Jurisdiction and Judgments Act 1982. Section 3 of that Act also requires the English court to interpret the provisions of the convention in accordance with principles laid down by any relevant decision of the European court. The English court is also required in performance of its task, to consider the report of, amongst others, Mr Jenard and Professor Schlosser.
8. The European Court has in fact pronounced on the meaning and effect of art. 21 in its decision in the case of Seigfried Zelger v Sebastiano Salinitri[1984] ECR 2397. I was referred to the report of the Commission which preceded the judgment of...
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