More complex cases of identity of objet and identity of cause

The case law provides several further examples which illustrate the identities of cause and objet in advance of looking at more challenging cases below. In Gantner Electronic GmbH v Basch Exploitatie Maatschappij BE, to which reference has already been made, it was held that a claim for damages for breach of contract did not involve the same cause of action as a claim for payment for goods supplied prior to the repudiation. In Marsk Olie & Gas A/S v Firma M de Haan en M de Boer, it was held that proceedings to limit liability for use of a ship did not have the same cause of action as a claim for damages for damaging a pipeline: a conclusion which had already been reached in England. Similarly, a claim for substantive relief in relation to property whose ownership was in dispute did not share identity with a claim for interpleader relief: the court suggested that the test to be applied is one which requires a judge to identify ‘the essential issue’ which arises in the two claims. In Eli Lilly & Co v Novo Nordisk AIS,³» it appears to have been held that an action to obtain relief on the basis of a contract did not share identity with a claim to rectify that contract: if this is correct, it will presumably depend on a close analysis of the extent to which, or grounds upon which, rectification is sought. In Mecklermedia Corp v DC Congress

GmbH,® it was held that an action for passing off was not identical with a claim based on infringement of trademark. On the other hand, in Awendale Resources Inc v Pyxis Capital Management Ltd" there was found to be identity of objet and cause even though the proceedings in one jurisdiction were brought in the form of a derivative action.

If a party puts forward a number of grounds in support of his claim, some of which are alternative to others, the application of Article 27 will be more complex. Suppose the buyer in Gubisch had argued that he was entitled to rescind the contract, but advanced as an alternative claim, if that were unsuccessful, a claim for damages for late delivery. The first claim would have the same objet and the same cause as that brought by the seller for the unpaid price; the second would not. It would appear follow that the court, if seised second, would have no jurisdiction to determine the claim for rescission, but would have jurisdiction to hear the claim for damages for late delivery.^[1]

Authority for the proposition that the court seised second is required to examine its jurisdiction or lack of jurisdiction over the claims individually, and to apply Article 27 separately, is probably to be found in The Tatry, by analogy to the way it applies to sets of proceedings involving different parties. To the extent that the application of Article 27 does not result in there being only one set of proceedings, there would be a very strong case for the court seised second (that is, second in terms of time, rather than second in relation to a particular claim) in respect of any claim over which it does have jurisdiction, to consider ordering relief under Article 28. That relief, as we shall see, might allow it to dismiss the proceedings before it for consolidation with those in the first-seised court, always assuming that the first-seised court would have jurisdiction over them, or stay its proceedings to wait for the outcome of the proceedings in the court first seised.

It may also be more difficult to apply Article 27 in a case where there are issues common to the two claims but the orders sought by way of relief are significantly different. Take, for example, Continental Bank NA v Aeakos Compania Naviera SAN In that case, proceedings were commenced first in Greece for damages for wrongful exercise of legal rights under a contract, and at a later date, in England for an antisuit injunction to restrain the Greek proceedings. No doubt it was controversial whether the Greek courts properly had jurisdiction to entertain the claim brought before them; but it was also argued that the English court, as the court seised second, had no jurisdiction at all over the claim brought before it (an issue which was logically anterior to any question whether it was entitled to grant an injunction^[2] if it did have jurisdiction), by reason of what is now Article 27.The Court of Appeal rejected the argument that what is now Article 27 deprived it of jurisdiction; it was right to do so. The proceedings in England and in Greece clearly overlapped on the question whether the underlying contract between the parties gave exclusive jurisdiction to the English courts. But they could not be said to have the same end in view. In Greece the proceedings claimed damages for the abusive or immoral exercise of legal rights. In England the claim was for an injunction which did not pretend to examine, still less to adjudicate upon, the merits of the substantive claim at all. To put the same point another way, the Greek proceedings sought relief in relation to the substantive contract, while the English proceedings sought to enforce the (distinct, separate, severable) agreement on the resolution of disputes. The two sets of proceedings were not aimed at obtaining judgments in which the one would annul the claim in the other; and as a result there was no identity of objet and cause.' Analysed in these terms, the explanation given in The Tatry lends support to the approach taken by the Court of Appeal. Even so, there may be other, more formidable, obstacles to what the English court was being asked to do. Article 27 was, really, a marginal issue.

It follows from this that if proceedings are brought in England for damages for breach of a jurisdiction agreement, and before the courts of another Lugano State in respect of a cause of action to which the jurisdiction agreement applied, the proceedings do not have the same cause, because the contractual terms relied on as the basis for the two proceedings are distinct; and do not have the same objet, because the relief sought is quite different.

This approach is supported by The Alexandres T, where it was held that proceedings for contractual relief arising from breach by one of the parties to a settlement agreement which contained a jurisdiction agreement, did not have the same cause of action as proceedings for damages for defamation and for loss resulting from late payment of sums due under the settlement agreement. There was no doubt that the allegations and cross-allegations arose from a maritime accident and the resolution of disputes arising from it, but the causes of action were not the same. The fact that the causes of action were in the one court contractual and in the other founded on what appeared to be torts was not, perhaps, decisive. But the rights relied on to found the contractual claims were separate and altogether distinct from the rights relied on to found the claims in the other court. It is therefore necessary to examine the respective causes of action carefully, paying particular attention to the legal basis on which the

B JURISDICTION ACCORDING TO LUGANO/BRUSSELS claims for relief are based, as distinct from ‘standing back’ and considering whether overall results sought by the parties in the two proceedings are contradictory only in a more general or economic sense.^[3]

• [1] [1998] Ch 40. 2 [2020] EWHC 1286 (Ch). 3 But as to that, it may be appropriate for it to grant relief under Art. 28: see below. 4 Judgment, at [29] et seq. See also Lloyd's Syndicate 980 v Sinco SA [2008] EWHC 1842 (Comm), [2008] 2 CLC 187; Federal Republic of Nigeria v Royal Dutch Shell Pic [2020] EWHC 1315 (Comm). 5 See below, para. 18.19. 6 Though that certainly does not mean impossible: Federal Republic of Nigeria v Royal Dutch Shell Pic [2020] EWHC 1315 (Comm). 7 See also Research in Motion ( UK) Ltd v Visto Corp [2008] EWCA Civ 153, [2008] 2 All ER (Comm) 560; Federal Republic of Nigeria v Royal Dutch Shell Pic [2020] EWHC 1315 (Comm). See also Koninklijke Philips NV v Tinno Mobile Technology Corp [2020] EWHC 2553 (Ch) (patent and ERAND proceedings, which illustrates how complex the analysis may be). 8 [1994] 1 WLR 588. 9 Reminiscent of an old equitable suit to restrain the unconscientious exercise of common law rights, or of the civilian quasi-delict of abuse of rights.
• [2] In the light of C-159/02 Turner v Grovit [2004] ECR 1-3565 it plainly did not. 2 Or, in fact, that until the Greek court had ruled on its jurisdiction, it was required to stay its proceedings; if the Greek court ruled that it did have jurisdiction, then to dismiss them. 3 But see the more relaxed interpretation of these requirements in J P Morgan Europe Ltd v Primacom AG [2005] EWHC 508 (Comm), [2005] 2 Lloyd’s Rep 665. See also Alfred C Toepfer International GmbH v Molino Boschi Sari [1996] 1 Lloyd’s Rep 510, where an anti-suit injunction was held not to have the same end in view as the substantive proceedings which it was designed to stop; and similar analysis was applied to the declaratory proceedings designed to establish that P was obliged to arbitrate and was not entitled to litigate the claim: these had different ends in view as well. 4 The Alexandras 7" [2013] UKSC 70, [2014] 1 Lloyd’s Rep 223, [36]—[38], and cases there cited. The decision was applied in the resumed proceedings: Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] EWCA Civ 1010, [2014] 2 Lloyd’s Rep 554; see also Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] EWHC 3068 (Comm), [2014] 2 Lloyd’s Rep 579. Applied in Barclays Bank Pic v Ente Nazionale di Previdenza ed Assistenza dei Medici e degli Odontoiatri [2016] EWCA Civ 1261, [2017] 2 All ER (Comm) 432. 5 [2013] UKSC 70, [2014] 1 Lloyd's Rep 223.
• [3] See The Alexandras T [2013] UK.SC 70, [2014] 1 Lloyd’s Rep 223, [49]-[54]; Starlight Shipping Co v Alliait: Marine & Aviation Versicherungs JG [2014] EWCA Civ 1010, [2014] 2 Lloyd's Rep 554. The courts declined to refer a question to the European Court on this issue as the answer was clear. 2 AGFv Chiyoda [1992] 1 Lloyd's Rep 325, 340-341. 3 See The Tatry at [29] et seq.; see also Grupo Torras SA v Sheikh Fahad Mohammed al-Sabah [1996] 1 Lloyd's Rep 7. 4 In accordance with Art. 67 of the Convention, the court may assume jurisdiction in accordance with the 1952 Arrest Convention, without regard to the jurisdictional rules of the Lugano Convention. This applies to jurisdiction taken when the ship has been arrested, but not to jurisdiction taken when it might have been, but has not been, arrested: see The Deichland[1990] 1 QB 361. 5 [1990] 1 QB 361.