(1) Trappit SA and others (2) Trappit Tecnologias SL and another v (1) American Express Europe LLC & (2) GBT UK Ltd  EWHC 1344 (Ch)
Snowden J has given an insightful judgment addressing the scope of application of Articles 25 and 29 of Brussels I Recast Regulation and the court’s power to strike out proceedings for abuse of process following a heavy jurisdiction application in which Sara Masters QC and Josephine Davies appeared for the largely successful respondents/claimants. In short, he found that there was no parallel litigation in Spain and no abuse of process in England.
The facts in outline
The claimants allege that after they pitched their air fare rebooking software system (ARPO) to the First Defendant in London, the First and/or Second Defendant (both, at different times, acting under the label ‘American Express Global Business Travel’) misused the confidential and copyright material provided to them about ARPO to produce an equivalent system in their own name.
In 2015, the Second Claimant initiated criminal/civil proceedings in Spain against parties related to the defendants, but not the defendants. The initial investigatory phase proceeded slowly.
In 2020, the claimants began the English proceedings and the defendants challenged jurisdiction under the Brussels I Recast Regulation and made a strike out application for abuse of process.
After that application was made, the Spanish courts provisionally dismissed the claim in Spain and archived the proceedings.
Brussels I Recast
The only part of the jurisdiction challenge which succeeded was based on an NDA between the First Claimant and the First Defendant which the Court found, applying Spanish law as its governing law, was wide enough to encompass the non-contractual claims made in this case.
However, the court refused to find that the clause bound any other parties and, in so doing, had to consider an array of arguments including on alleged universal succession and corporate transfers under Spanish law.
Of particular interest is the court’s decision on Article 29. Although, following the dismissal of the claim in Spain, the defendants had abandoned their stay application based on Article 30 (‘related parallel proceedings’), they maintained the Article 29 (‘same proceedings’) challenge.
The court has provided a clear ruling (not express in any earlier cases) that for Article 29 to apply, the foreign proceedings must be pending at the time when the application is heard. Moreover, the judge found as a matter of fact that although the Spanish proceedings could, theoretically be re-opened, they were not parallel proceedings and consequently there was no lis pendens in any relevant sense.
Abuse of Process
The court rejected the defendants’ strike out application.
The judge found there was no issue estoppel arising from the dismissal in Spain. The Spanish court would not consider there to be any preclusive finding in Spain and so, a fortiori, the English court should not do so. Similarly, there could be no Henderson v Henderson abuse (noting the fact that Henderson abuse is part of the res judicata principles as explained in SAS v WPL  EWHC 3452 (Comm)).
The judge also rejected a wide ranging allegation that the English proceedings were vexatious and oppressive. His reasons included various points of general application. Notably that the English court had only a limited understanding of the scope of investigation in the Spanish criminal justice system which led to the provisional dismissal of the criminal complaint and that the Spanish courts themselves would not have barred the claimants from bringing a further purely civil claim.