When English court has jurisdiction and case is pending before it

This paragraph deals with hypothesis (A) set out above in paragraph 31.08.

This is the straightforward case from which all the others are departures. If the dispute arises in a civil or commercial matter, the Lugano Convention will have determined whether the English court has jurisdiction over the defendant in respect of the substantive claim. If that Convention gives the English court jurisdiction over the defendant in respect of the substantive claim, and this jurisdiction has been invoked, the English court may make any ancillary order which it sees fit to make.

Confirmation that the national court with substantive jurisdiction over a civil or commercial matter does enjoy freedom, so far as the Brussels/Lugano scheme was or is concerned, to impose orders for ancillary relief, comes from the explicit statement to this effect in the judgment of the European Court in Van Uden Maritime BV v Firma Deco-Line.^ In that case, an application for an interim payment had been made to a Dutch court, even though the parties had agreed that the merits of the substantive claim were to be resolved by arbitration. The European Court drew a fundamental distinction between the orders which could be made by a court which had jurisdiction over the merits of the dispute, and those which could be granted by a court which did not. In the former case, there was no further jurisdictional condition to be satisfied before the court could make orders of a provisional and protective kind, because it had substantive jurisdiction in any event. In the latter case, to which we will come, the jurisdictional basis for the power of the court to act was what is now Article 31 of the Lugano Convention, which is examined in due course.^[1]

This aspect of the decision in Van Uden was applied, and just possibly extended a little, by the Court of Appeal in Masri v Consolidated Contractors International ( UK) Ltd (No 2), and Masri v Consolidated Contractors International ( UK) Ltd (No 4), where the court interpreted the first part of the rule in Van Uden to mean that the court which was exercising jurisdiction on the merits of the case was free to make any ancillary order permitted and provided for by English law: in other words, there was no restriction or limitation imposed by the Brussels/Lugano rules upon the orders that may be made by a court with jurisdiction over the merits.

It follows that the orders made by the court with jurisdiction over the substantive claim are not restricted to ‘provisional, including protective, measures’ in the sense in which this expression is used in Article 31, as Article 31 is irrelevant to the case.^[2] To put it another way, the court which has jurisdiction over the substantive claim, or full jurisdiction or plenary jurisdiction over the defendant on the merits, may grant such ancillary relief as it sees fit. It follows that any or all of the remedies in CPR rule 25.1 are available to the applicant.

This principle is clear and straightforward to apply if the English court has actually been seised with proceedings in respect of the claim against the defendant. It has been held, and now appears, that the position remains the same even after the court has actually given judgment but remains concerned to supervise and assist the enforcement of its judgment, for the range of ancillary measures available to the court is not obviously limited to orders made before final judgment. And in any case, the proposition that a court has no power to grant relief which will assist the claimant in the enforcement of the judgment which it has just given would be a very troubling one.

In two cases the application of this rule is more problematic. First, if no proceedings have yet been instituted and there is more than one court which may have jurisdiction under the Regulation, the correct interpretation of Van Uden may appear to be unclear; the case is considered below. Second, the Court did not deal specifically with the case in which an English court might have had jurisdiction were it not for the fact that the Us pendens provisions precluded it. It seems likely that, in such a case, it is irrelevant that the English court might have had jurisdiction, because it does not now, with the consequence that the facts should be seen to fall within hypothesis (B), which is considered below. However, if the court first seised has not yet determined its jurisdiction, the English court does not yet lack jurisdiction, and its power to act may be the same as where it has jurisdiction under the Convention in the full sense of the term.

Returning to the main point, as the Convention provides the basis for jurisdiction, and does not place any restriction on the substance of the measures which can be ordered, and as jurisdiction will already have been asserted in the substantive claim in accordance with the Convention, and process will already have been served on the defendant, there is no difficulty in relation to the service of any application notice which may be required. The case will be one in which the Convention provides jurisdiction, and service is not an issue.

Where the court has exercised jurisdiction and has given judgment on the merits, and its concern is now for the enforcement of its judgment, it will still consider itself to have jurisdiction over the merits of the claim, and its power to make ancillary orders will certainly extend to anything which might have been regarded as interim relief. The only limitation on its power will be Article 22(5) of the Convention, which gives exclusive jurisdiction regardless of domicile to the courts of the Lugano State on whose territory a judgment from a Lugano State is to be enforced, but it is generally understood that this refers, and is limited, to measures of execution.

• [1] C-391/95, [1998] ECR 1-7091: see esp. at [22]. The decision builds on and develops, and effectively supersedes, the earlier decision in 125/79 Denilauler v SNC Couchet Freres [1980] ECR 1553. For this purpose, the English court has jurisdiction even where it was seised but, by reference to Art. 27 of the Convention, the proceedings are stayed while the court seised first determines whether it has jurisdiction: J P Morgan Europe Ltd v Primacom AG [2005] EWHC 508 (Comm), [2005] 2 Lloyd’s Rep 665. 2 Paragraph 31.10, below. 3 [2008] EWCA Civ 303, [2009] QB 450 (appointment of receiver), applied in Masri v Consolidated Contractors International ( UK) Ltd (No 3) [2008] EWCA Civ 625, [2009] QB 503 (anti-suit injunction in relation to proceedings in non-Member State); to same effect, see also The Ikarian Reefer (No 2) [2000] 1 WLR 603 (third-party costs order). 4 [2008] EWCA Civ 876, [2009] 2 WLR 699 (order for examination of director of judgment debtor): reversed on interpretation of CPR Pt 71 (on the ground that the power only exists in relation to persons present within the jurisdiction) with no reference to the position under European law which was therefore irrelevant on the facts of the case: Masri v Consolidated Contractors International Co SAL (No 4) [2009] UKHL 43, [2010] 1 AC 90. For the distinct issues of service, which may need to be made on a non-party and out of the jurisdiction, see at [55] et seq and now see also CPR rr 6.38, 6.39. 5 Where, by contrast, the order applied for is unavailable as a matter of English law, there will be no question of making it: Masri v Consolidated Contractors International Co SAL (No 4) [2009] UKHL 43, [2010] 1 AC 90. 6 Excluding, of course, an anti-suit injunction in respect of proceedings before the courts of another Lugano State, even if this would be justifiable on the ground that it is necessary to protect the jurisdiction of the court, for this is absolutely prohibited in any guise: C-159/02 Turner v Grovit [2004] ECR 1-3565;
• [2] As to the definition of these, see the following paragraph. 2 Masri v Consolidated Contractors International (UK) Ltd (No 2) [2008] EWCA Civ 303, [2009] QB 450. 3 Paragraph 31.13, below. 4 JP Morgan Europe Ltd v Primacom AG [2005] EWHC 508 (Comm), [2005] 2 Lloyd’s Rep 665. 5 For when an application notice is required, see CPR Part 23 and CPR rr 25.2-25.4. 6 Masri v Consolidated Contractors International ( UK) Ltd (No 2) [2008] EWCA Civ 303, [2009] QB 450.