The Supreme Court has today handed down judgment in the matter of "The Alexandros T", which concerned the operation of Articles 27 and 28 of the Brussels Regulation.
The case arose out of the loss of the vessel Alexandros T in 2006. Following the casualty, the owners of the vessel brought proceedings in England against their insurers, which settled shortly before trial and were then stayed pursuant to a Tomlin order. The insurance policies and the settlement agreements contained exclusive jurisdiction clauses in favour of the High Court in London. In 2011, several years later, the owners commenced proceedings in Greece against (amongst others) the insurers, claiming damages for malicious falsehoods spread in the insurance market about the circumstances in which the vessel had been lost. The insurers responded to those proceedings by seeking to reactivate the original English proceedings, as well as by commencing various new actions, to claim (a) declarations that the Greek proceedings fell within the scope of the release contained in the settlements, (b) declarations that the Greek proceedings were commenced in breach of the settlement agreements and the jurisdiction agreements, (c) damages for those alleged breaches, and (d) a contractual indemnity under the settlement agreements in respect of the costs and liability incurred in Greece.
The question for the Supreme Court was whether the English proceedings should be stayed pending the resolution of the Greek proceedings, either (a) under Article 27 of the Brussels Regulation, on the ground that the two sets of proceedings involved the same cause of action and the same parties and the Greek court was first seised; or (b) under Article 28 of the Brussels Regulation, on the ground that the two sets of proceedings were related, the Greek court was first seised, and it was expedient to stay the English proceedings to prevent the risk of irreconcilable judgments. The Court of Appeal had unanimously held that the English proceedings should be stayed under Article 27.
Reversing the decision of the Court of Appeal in part, it was held by the Supreme Court that (a) save in relation to the claim for a declaration that the Greek claims had been settled, the English proceedings did not involve the same cause of action as the Greek proceedings and so did not need to be stayed under Article 27; (b) the question whether the claim for a declaration that the Greek claims had been settled needed to be stayed under Article 27 would be referred to the Court of Justice of the European Union, unless the insurers abandoned that claim; and (c) although the proceedings were related and the Greek court was arguably first seised, it would not, in the circumstances of the case, exercise its discretion for the English proceedings to be stayed under Article 28.