CELEX: 62002CJ0159
Brussels Convention
Proceedings brought in a Contracting State
Proceedings brought in another Contracting State by the defendant in the existing proceedings
Defendant acting in bad faith in order to frustrate the existing proceedings
Compatibility with the Brussels Convention of the grant of an injunction preventing the defendant from continuing the action in another Member State

By order of 13 December 2001, received at the Court on 29 April 2002, the House of Lords referred to the Court of Justice
for a preliminary ruling under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention
of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters a question on the interpretation
of that convention (OJ 1978 L 304, p. 36), as amended by the Convention of 9 October 1978 on the accession of the Kingdom
of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and – amended text
– p. 77), by the Convention of 25 October 1982 on the accession of the Hellenic Republic (OJ 1982 L 388, p. 1) and by the
Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1, ‘the
Convention’).
That question was raised in proceedings between Mr Turner, on the one hand and, on the other, Mr Grovit, Harada Limited (‘Harada’)
and Changepoint SA (‘Changepoint’) concerning breach of Mr Turner’s employment contract with Harada.
The dispute in the main proceedings
Mr Turner, a British citizen domiciled in the United Kingdom, was recruited in 1990 as solicitor to a group of undertakings
by one of the companies belonging to that group.
The group, known as Chequepoint Group, is directed by Mr Grovit and its main business is running
bureaux de change
. It comprises several companies established in different countries, one being China Security Ltd, which initially recruited
Mr Turner, Chequepoint UK Ltd, which took over Mr Turner’s contract at the end of 1990, Harada, established in the United
Kingdom, and Changepoint, established in Spain.
Mr Turner carried out his work in London (United Kingdom). However, in May 1997, at his request, his employer allowed him
to transfer his office to Madrid (Spain).
Mr Turner started working in Madrid in November 1997. On 16 November 1998, he submitted his resignation to Harada, the company
to which he had been transferred on 31 December 1997.
On 2 March 1998 Mr Turner brought an action in London against Harada before the Employment Tribunal. He claimed that he had
been the victim of efforts to implicate him in illegal conduct, which, in his opinion, were tantamount to unfair dismissal.
The Employment Tribunal dismissed the objection of lack of jurisdiction raised by Harada. Its decision was confirmed on appeal.
Giving judgment on the substance, it awarded damages to Mr Turner.
On 29 July 1998, Changepoint brought an action against Mr Turner before a court of first instance in Madrid. The summons was
served on Mr Turner around 15 December 1998. Mr Turner did not accept service and protested the jurisdiction of the Spanish
court.
In the course of the proceedings in Spain, Changepoint claimed damages of ESP 85 million from Mr Turner as compensation for
losses allegedly resulting from Mr Turner’s professional conduct.
On 18 December 1998 Mr Turner asked the High Court of Justice of England and Wales to issue an injunction under section 37(1)
of the Supreme Court Act 1981, backed by a penalty, restraining Mr Grovit, Harada and Changepoint from pursuing the proceedings
commenced in Spain. An interlocutory injunction was issued in those terms on 22 December 1998. On 24 February 1999, the High
Court refused to extend the injunction.
On appeal by Mr Turner, the Court of Appeal (England and Wales) on 28 May 1999 issued an injunction ordering the defendants
not to continue the proceedings commenced in Spain and to refrain from commencing further proceedings in Spain or elsewhere
against Mr Turner in respect of his contract of employment. In the grounds of its judgment, the Court of Appeal stated, in
particular, that the proceedings in Spain had been brought in bad faith in order to vex Mr Turner in the pursuit of his application
before the Employment Tribunal.
On 28 June 1999, in compliance with that injunction, Changepoint discontinued the proceedings pending before the Spanish court.
Mr Grovit, Harada and Changepoint then appealed to the House of Lords, claiming in essence that the English courts did not
have the power to make restraining orders preventing the continuation of proceedings in foreign jurisdictions covered by the
Convention.
The order for reference and the questions submitted to the Court
According to the order for reference, the power exercised by the Court of Appeal in this case is based not on any presumed
entitlement to delimit the jurisdiction of a foreign court but on the fact that the party to whom the injunction is addressed
is personally amenable to the jurisdiction of the English courts.
According to the analysis made in the order for reference, an injunction of the kind issued by the Court of Appeal does not
involve a decision upon the jurisdiction of the foreign court but rather an assessment of the conduct of the person seeking
to avail himself of that jurisdiction. However, in so far as such an injunction interferes indirectly with the proceedings
before the foreign court, it can be granted only where the claimant shows that there is a clear need to protect proceedings
pending in England.
The order for reference indicates that the essential elements which justify the exercise by the Court of Appeal of its power
to issue an injunction in this case were that:
–
the applicant was a party to existing legal proceedings in England;
–
the defendants had in bad faith commenced and proposed to prosecute proceedings against the applicant in another jurisdiction
for the purpose of frustrating or obstructing the proceedings in England;
–
the Court of Appeal considered that in order to protect the legitimate interest of the applicant in the English proceedings
it was necessary to grant the applicant an injunction against the defendants.
Taking the view, however, that the case raised a problem of interpretation of the Convention, the House of Lords stayed its
proceedings pending a preliminary ruling from the Court of Justice on the following question:
‘Is it inconsistent with the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed
at Brussels on 27 September 1968 (subsequently acceded to by the United Kingdom) to grant restraining orders against defendants
who are threatening to commence or continue legal proceedings in another Convention country when those defendants are acting
in bad faith with the intent and purpose of frustrating or obstructing proceedings properly before the English courts?’
The question referred to the Court
By its question, the national court seeks in essence to ascertain whether the Convention precludes the grant of an injunction
by which a court of a Contracting State prohibits a party to proceedings pending before it from commencing or continuing legal
proceedings before a court in another Contracting State even where that party is acting in bad faith in order to frustrate
the existing proceedings.
Observations submitted to the Court
The defendants in the main proceedings, the German and Italian Governments and the Commission submit that an injunction of
the kind at issue in the main proceedings is not compatible with the Convention. They consider, in essence, that the Convention
provides a complete set of rules on jurisdiction. Each court is entitled to rule only as to its own jurisdiction under those
rules but not as to the jurisdiction of a court in another Contracting State. The effect of an injunction is that the court
issuing it assumes exclusive jurisdiction and the court of another Contracting State is deprived of any opportunity of examining
its own jurisdiction, thereby negating the principle of mutual cooperation underlying the Convention.
Mr Turner and the United Kingdom Government observe, first, that the question on which a ruling is sought concerns only injunctions
prompted by an abuse of procedure, addressed to defendants who are acting in bad faith and with the intention of frustrating
proceedings before an English court. In pursuit of the aim of protecting the integrity of the proceedings before the English
court, only an English court is in a position to decide whether the defendant’s conduct undermines or threatens that integrity.
In common with the House of Lords, Mr Turner and the United Kingdom Government also submit that the injunctions at issue do
not involve any assessment of the jurisdiction of the foreign court. They should be regarded as procedural measures. In that
regard, referring to the judgment in Case C-391/95
Van Uden
[1998] ECR I-7091, they contend that the Convention imposes no limitation on measures of a procedural nature which may be
adopted by a court of a contracting State, provided that that court has jurisdiction under the Convention over the substance
of a case.
Finally, Mr Turner and the United Kingdom Government maintain that the grant of an injunction may contribute to attainment
of the objective of the Convention, which is to minimise the risk of conflicting decisions and to avoid a multiplicity of
proceedings.
Findings of the Court
At the outset, it must be borne in mind that the Convention is necessarily based on the trust which the Contracting States
accord to one another’s legal systems and judicial institutions. It is that mutual trust which has enabled a compulsory system
of jurisdiction to be established, which all the courts within the purview of the Convention are required to respect, and
as a corollary the waiver by those States of the right to apply their internal rules on recognition and enforcement of foreign
judgments in favour of a simplified mechanism for the recognition and enforcement of judgments (Case C-116/02
Gasser
[2003] ECR I-0000, paragraph 72).
It is inherent in that principle of mutual trust that, within the scope of the Convention, the rules on jurisdiction that
it lays down, which are common to all the courts of the Contracting States, may be interpreted and applied with the same authority
by each of them (see, to that effect, Case C-351/89
Overseas Union Insurance and Others
[1991] ECR I-3317, paragraph 23, and
Gasser,
paragraph 48).
Similarly, otherwise than in a small number of exceptional cases listed in the first paragraph of Article 28 of the Convention,
which are limited to the stage of recognition or enforcement and relate only to certain rules of special or exclusive jurisdiction
that are not relevant here, the Convention does not permit the jurisdiction of a court to be reviewed by a court in another
Contracting State (see, to that effect,
Overseas Union Insurance and Others
, paragraph 24).
However, a prohibition imposed by a court, backed by a penalty, restraining a party from commencing or continuing proceedings
before a foreign court undermines the latter court’s jurisdiction to determine the dispute. Any injunction prohibiting a claimant
from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which, as
such, is incompatible with the system of the Convention.
Notwithstanding the explanations given by the referring court and contrary to the view put forward by Mr Turner and the United
Kingdom Government, such interference cannot be justified by the fact that it is only indirect and is intended to prevent
an abuse of process by the defendant in the proceedings in the forum State. In so far as the conduct for which the defendant
is criticised consists in recourse to the jurisdiction of the court of another Member State, the judgment made as to the abusive
nature of that conduct implies an assessment of the appropriateness of bringing proceedings before a court of another Member
State. Such an assessment runs counter to the principle of mutual trust which, as pointed out in paragraphs 24 to 26 of this
judgment, underpins the Convention and prohibits a court, except in special circumstances which are not applicable in this
case, from reviewing the jurisdiction of the court of another Member State.
Even if it were assumed, as has been contended, that an injunction could be regarded as a measure of a procedural nature intended
to safeguard the integrity of the proceedings pending before the court which issues it, and therefore as being a matter of
national law alone, it need merely be borne in mind that the application of national procedural rules may not impair the effectiveness
of the Convention (Case C-365/88
Hagen
[1990] ECR I-1845, paragraph 20). However, that result would follow from the grant of an injunction of the kind at issue
which, as has been established in paragraph 27 of this judgment, has the effect of limiting the application of the rules on
jurisdiction laid down by the Convention.
The argument that the grant of injunctions may contribute to attainment of the objective of the Convention, which is to minimise
the risk of conflicting decisions and to avoid a multiplicity of proceedings, cannot be accepted. First, recourse to such
measures renders ineffective the specific mechanisms provided for by the Convention for cases of
lis alibi pendens
and of related actions. Second, it is liable to give rise to situations involving conflicts for which the Convention contains
no rules. The possibility cannot be excluded that, even if an injunction had been issued in one Contracting State, a decision
might nevertheless be given by a court of another Contracting state. Similarly, the possibility cannot be excluded that the
courts of two Contracting States that allowed such measures might issue contradictory injunctions.
Consequently, the answer to be given to the national court must be that the Convention is to be interpreted as precluding
the grant of an injunction whereby a court of a Contracting State prohibits a party to proceedings pending before it from
commencing or continuing legal proceedings before a court of another Contracting State, even where that party is acting in
bad faith with a view to frustrating the existing proceedings.
Costs
The costs incurred by the United Kingdom, German and Italian Governments, and by the Commission, which have submitted observations
to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings
pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT
in answer to the questions referred to it by the House of Lords by order of 13 December 2001, hereby rules:
The Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended
by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain
and Northern Ireland, by the Convention of 25 October 1982 on the accession of the Hellenic Republic and by the Convention
of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic, is to be interpreted as precluding the
grant of an injunction whereby a court of a Contracting State prohibits a party to proceedings pending before it from commencing
or continuing legal proceedings before a court of another Contracting State, even where that party is acting in bad faith
with a view to frustrating the existing proceedings.
Skouris
Jann
Timmermans
Gulmann
Cunha Rodrigues
Rosas
La Pergola
Puissochet
Schintgen
Colneric
von Bahr
Delivered in open court in Luxembourg on 27 April 2004.
R. Grass
V. Skouris
Registrar
President
–
Language of the case: English.