Underwriting Members of Lloyd's Syndicate 980 v Sinco SA [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE BEATSON,Mr Justice Beatson |
| Judgment Date | 29 July 2008 |
| Neutral Citation | [2008] EWHC 1842 (Comm) |
| Docket Number | Case No: 2007 FOLIO 63 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 29 July 2008 |
[2008] EWHC 1842 (Comm)
The Honourable Mr Justice Beatson
Case No: 2007 FOLIO 63
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr S Phillips & Mr R Sarll (instructed by Holman Fenwick Willan) for the Claimants Mr A Henshaw (instructed by DLA Piper) for the Defendant
Hearing dates: 14 May 2008
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.
On 7 March 2008 the defendant (“Sinco”) applied for a stay pursuant to Council Regulation (EC) 44/2001 (“the Regulation”) of one of the claims advanced by the claimants (“the Syndicates”) in this action, pending the determination by the Greek court of its jurisdiction in proceedings commenced by Sinco on 11 April 2007. This action was issued on 15 January 2007. The Syndicates did not inform Sinco they had issued proceedings before the claim was amended on 21 June 2007. The amended claim form was served on Sinco in Greece on 29 June 2007. The Particulars of Claim were served on 21 November 2007.
This application is confined to the claim contained in paragraphs 9 and 15 of the Particulars of Claim that Sinco, in bringing the Greek proceedings, is in breach of the exclusive jurisdiction clauses in favour of the English courts contained in its contracts with the Syndicates, the “jurisdiction clause claim”. The Syndicates' claim is for damages for this alleged breach of contract. Sinco's application is made solely pursuant to Article 27 of the Regulation. No application has been made pursuant to Article 28. For this reason, it is not disputed that the Syndicates are entitled to proceed in this court with the principal claims (summarised in paragraph [8]) which they advance against Sinco in these proceedings.
The application came before me on 14 May. At that time the case was also before the court for the case management conference. The case management conference was adjourned, but has since been held on 19 June when directions for the remainder of the claimants' action were made. The trial, with a time estimate of 10–12 days, is to be heard not before 23 February 2009.
The claimants are the members of three Lloyd's Syndicates (980, 2000 and 1886) for various years of account between 1999 and 2006. Sinco is a Greek company operating as a motor insurance broker. Between 1999 and 2006 it had authority under binding authority agreements (“the Binders”) to bind Greek motor insurances on behalf of the Syndicates. The Binders contain materially identical provisions, including exclusive jurisdiction clauses in favour of England. So, section 39 of Syndicate 1886's Binder provides “the agreement is subject to English law and practice and to the exclusive jurisdiction of the English courts”.
On 17 November 2006 the Syndicates purported to terminate the 2006 Binder. As I have stated, the Syndicates instituted proceedings against Sinco in this court on 15 January 2007, but did not serve the claim form on Sinco or tell Sinco that they had issued it.
On 11 April 2007 (before being served with these proceedings) Sinco commenced proceedings against the Syndicates in Greece and served them on the Syndicates. On 21 June 2007 the Syndicates amended the claim form inter alia adding a statement that this court has jurisdiction pursuant to Regulation EC 44/2001 and served the amended claim form on Sinco on 29 June 2007.
On 20 July Sinco filed an Acknowledgement of Service stating it would contest jurisdiction. It did not do so before 27 September 2007, the time agreed with the Syndicates and pursuant to CPR 11(5) is thus to be treated as having accepted that the court has jurisdiction to try the claim as set out in the claim form.
The Syndicates bring three principal claims. The first (the fraud claim) is that Sinco fraudulently back dated policy cancellations and generated a fictional return of premium which it has retained for its own account. The second (the misrepresentation claim) is that, from 2000, Sinco represented that claims under the Binders were significantly lower than it alleges they are in the Greek proceedings. The Syndicates claim that, had the claims position not been misrepresented and they had known the true position, they would not have entered into the Binders for subsequent years. The third (the premium claim) is that Sinco has failed to account to it for premium. There was an extension of time granted for service of the Defence which was served on 10 March 200The Defence does not plead to the parts of the claim which are the subject of the present application.
The principal claims brought by Sinco in the Greek proceedings are: a claim for clientele compensation in accordance with Presidential Decree 219/1991; claims for financial and moral damages arising from the unlawful termination of the relationship between the parties; and a claim pursuant to the Greek Commercial Code for expenses incurred in accordance with the Binders. The Greek proceedings were listed for hearing on 12 March 2008. That hearing was cancelled due to a strike in the Greek courts. The case is now listed for 11 February 2009.
The Syndicates have challenged the Greek court's jurisdiction, arguing that the claims brought in Greece fall within the scope of the jurisdiction clauses in the Binders and that Sinco is therefore bound to pursue them in England. Sinco's position is that the claims in Greece, which are based in tort and statute, are not covered by the jurisdiction clauses in the Binders which only cover contractual claims. Sinco also argues that the clauses are contrary to mandatory provisions of Greek law. The Greek court will consider its jurisdiction when it considers the merits of the claim.
The evidence before me consists of statements by Mr Alexopoulos, a partner of DLA Piper LLP, Sinco's solicitors, Mr Wareham, a partner of Holman Fenwick Willan, the claimants' solicitors and Maria Katsarou, a Greek lawyer, whose statement is concerned with the Greek proceedings and the risk of irreconcilable judgments. These statements are respectively made on 7 March, 21 April and 7 May 2008.
The positions of the parties are summarised in paragraphs 6 and 7 of Mr Henshaw's skeleton argument on behalf of Sinco. Paragraph 6 states that Sinco's argument may be summarised as follows:
“6.1 The claims made in the Greek proceedings are different from the claims set out in the English claim form, and the Greek court was first seised of the claims which Sinco makes in Greece.”
“6.2 The claimants' claim for breach of the jurisdiction clauses in the Binders (“the Jurisdiction Clause Claim”) involves the same cause of action as the jurisdiction dispute before the Greek court.”
“6.3 The Jurisdiction Clause Claim should accordingly be stayed pending the Greek court's determination as to whether it has jurisdiction over the Greek claims.”
Mr Phillips, who appeared on behalf of the Syndicates, did not suggest that paragraph 7 of Mr Henshaw's skeleton argument which summarises the position of the Syndicates was inaccurate. I set it out with Mr Phillips' suggested addition to paragraph 7.3 in square brackets:
“7.1 The Jurisdiction Clause Claim is not an assertion of jurisdiction; by this claim the claimants' simply seek compensation for breach of their contractual rights.”
“7.2 The claims made in Greece, including the jurisdiction dispute, can be distinguished from the legal basis of the Jurisdiction Clause Claim, which is founded purely in contract.”
“7.3 Success by the claimants in the Jurisdiction Clause Claim would not give rise to any risk of an irreconcilable judgment even if Sinco were to succeed on all of its claims in the Greek proceedings” [because the claimants in these proceedings are not seeking to stop the Greek proceedings but to claim damages for breach of contract].
The legislative framework
Chapter II of the Regulation deals with “Jurisdiction”. Chapter III, with which I am not concerned, deals with “Recognition and Enforcement”. The material provisions of Chapter II are:-
Section 9: lis pendens – related actions
Article 27
“(1) Where proceedings involving the same cause of action and between the same parties are brought in the courts of different member states, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.”
“(2) Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.”
Article 28
“(1) Where related actions are pending the courts of different member states, any court other than the court first seised may stay its proceedings.”
“(2) Where the actions are pending at first instance, any court other than the court first seised 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.”
Article 29
“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.”
Article 30
“For the...
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