The same parties under Article 27: identity of parties

As long as the same persons are before the two courts as parties, the fact that there may be additional parties on one or both sides of the claim will not prevent the operation of Article 27 of the Convention: as between the same parties, but only as between the same parties, the persons condition of Article 27 will be satisfied. It therefore follows, as was made clear in The Tatry, that insofar as there is a Us between pairs of parties who are not identical, the proceedings do not fall within Article 27. The potential inconvenience of this - for example, in a cargo claim there may be a very large number of parties, not all of whom are joined in all the proceedings - is partially ameliorated by Article 28and the options it gives to the court seised second.

Some uncertainty had arisen in the English courts in connection with maritime claims, commenced by service of a claim form upon a ship. This arose from the question whether or when the action is to be regarded as one in rem, in personam, or both, and from the issue how the uniform interpretation of Article 27 applies to a form of action for which it was not evidently designed. As a matter of English law, an action in rem against a ship is constituted differently from an action in personam against the owner of a ship or other interested party. If an action is commenced in rem, and an appearance is then entered by the owner or other person interested, that person submits to the jurisdiction of the court. An action in personam is then also pending against him, presumably from the original date on which the action in rem was instituted, and the action is thenceforth a hybrid one.

If proceedings are commenced in one Lugano State against a defendant who has an interest in a ship, and thereafter process is served upon a ship in England, the questions are whether Article 27 applies, and whether the answer changes if the interested party enters an appearance. The answer is, for the purposes of the Lugano Convention at least, that the action may still be seen as being between the same parties. The Court of Appeal in The Deichland⁵* held that, where the English action was only in rem, nothing much turned upon the technical or procedural manner in which it was constituted. For the purposes of applying Article 2, it was necessary to look behind the form and to determine who ‘in effect’ was being sued. In The Deichland, this was Deich Navigation SA, even though that entity had not been served personally, and had entered an appearance only in order to dispute the jurisdiction of the court. The correctness of this approach, in the context of English Admiralty law at least, wasconfirmed in The Indian Grace (No 2).^[1] In that case, the House of Lords relied on The Tatry to reinterpret the approach of English Admiralty law that an Admiralty action in rem was a thing apart.

In The Tatry, the Court had explained that what is now Article 27 was not excluded from application where the English proceedings were in rem and in personam, and the Dutch proceedings were in personam. The procedural nature of Admiralty claims was just that: a rule of national law concerning the constitution of actions, which did not call into question the uniform jurisdictional rules in Title II to the Convention. If the parties may be seen as the same, and if the two cases may lead to irreconcilable judgments, Article 27 should apply. In the light of The Tatry and The Indian Grace (No 2J, it is unlikely that issues arising in the particular context of admiralty claims will be problematic in future.

In Mecklermedia Corp v DC Congress GmbH, a licensee had been permitted to use the licensor’s trade name. This did not mean that the licensor and licensee were the same parties for the purposes of Article 27. That was correct, because there was no reason to suppose that the interests of licensor and licensee could never be opposed to each other: licensee-licensor disputes are not infrequent. The judge did not reject the proposition that a wholly-owned subsidiary could, for these purposes, sometimes be seen as the same party as its parent. To the extent that this asks whether the interests of the two ostensibly distinct parties are inseparable or indivisible, the analysis in Mecklermedia Corp is aligned with the important decision in Drouot Assurances SA v Consolidated Metallurgical Industries. The context in which the Court in Drouot had to interpret ‘the same parties’ was a claim by the insurer of a ship’s hull against the insurer of the cargo, and a claim by the insurer of the cargo against the owner and charterer of the vessel, the causes of action being essentially the same. As it was not the task of the European Court to apply its ruling to the facts of the individual case, it was sufficient for it to rule that the parties would be the same if their interests were identical and indissociable from each other. Whether the interests of the insurer and its insured fell within that definition was for the national court to determine. One can imagine circumstances in which the insurer and the insured have interests which are opposed, particularly where the insurer may be seeking to disavow its liability to the insured under the insurance. Even so, the test is reminiscent of that found in the

B JURISDICTION ACCORDING TO LUGANO/BRUSSELS common law of estoppel by res judicata, where privity of interest is sufficient to meet the requirement that the issue be between the same parties.^[2]

The principle in Drouot was applied by the Court of Appeal in Kolden Holdings Ltd v Rodette Commerce Ltd. In that case, A brought proceedings against B in England, and then gave notice of an assignment of its interests to C. In the gap between the giving of notice and the execution of the assignment, B instituted proceedings against C in Cyprus, and then had the nerve to contend before the English court that it had no jurisdiction, or had lost jurisdiction, over the claim when (re-)constituted as one between C and B. The court rejected the contention on the facts of the case before it, accepting that the interests of A and C, in relation to B, were one and the same, indissociable from each other, and that the English court was seised of the proceedings, whether brought in the name of A or C, who were in this sense to be seen as the same single party, before the Cypriot court was seised of the proceedings brought by B. If one sees the effect of statutory assignment as the substitution of one person for another in the pre-existing contractual relationship, the conclusion drawn by the court was absolutely right.

• [1] [1998] AC 878. 2 And, in this respect, to distance English law from the admiralty law of Australia: Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45. 3 At [46] [48]. 4 On the application of these principles to civil claims advanced in the context of criminal proceedings, see Haji-Ioannou v Frangos [1992] 2 Lloyd's Rep 337. 5 [1998] Ch 40. 6 This had been proposed as a case where there would be identity in Berkeley Administration Inc v McClelland [1995] ILPr 201. But for greater caution, see WMS Gaming Inc v В Plus Giocolegale Ltd [2011] EWHC 2620, [2012] ILPr 109. 7 C-351/96, [1998] ECR 1-3075. 8 The insurer and insured did not have the same interest, and Art. 27 did not apply, in Sony Computer Entertainment Ltd v RH Freight Services Ltd [2007] EWHC 302 (Comm), [2007] 2 Lloyd’s Rep 463 (Art. 28 applied). 9 From which point of view, the interests of licensor and licensee of intellectual property rights are not identical, and they are not liable to be regarded as the same party: Molnlycke Health Care AB v BSN Medical £rrf[2009] EWHC 3370 (Pat), [2010] ILPr 171.
• [2] Cf House of Spring Gardens Ltd v Waite [1991] 1 QB 241. 2 [2008] EWCA Civ 10, [2008] Bus LR 1051. See also Re Cover Europe Ltd [2002] EWHC 861 Ch, [2002] 2 BCLC 61 (English action against liquidator under Insolvency Act 1986 to require him to admit a claim as proof of debt; Italian action by company against claimant for declaration of invalidity of debt claim is between the same parties, even though one case involved the company and the other its liquidator); see also Awendale Resources Inc v Pyxis Capital Management Ltd [2020] EWHC 1286 (Ch). 3 It was of no significance that the validity of the assignment was contested. 4 See also Awendale Resources Inc v Pyxis Capital Management /./¿/[2020] EWHC 1286 (Ch). 5 Which includes being not contested: C-l/13 Cartier parfums-lunettes SAS v Ziegler France SA EU:C:2014:109, [2014] ILPr 359. In that case no challenge to the jurisdiction had been raised by the time of the first defence, so the jurisdiction was established in the perfectly sufficient sense that it had not been challenged, or was uncontested, and now could be neither challenged nor contested. The establishing of jurisdiction needs no fanfare. 6 129/83, [1984] ECR 2397. 7 In order to avoid difficulties, it is desirable and perhaps essential that the decision of the first court to decide the point be recognised by the other court.