Neutral Citation Number: [
 2016]
  
EWCA
  
Civ
  
1261 
  Case No: A3/2015/380 9 
IN THE COURT OF APPEAL (
 CIVIL
  DIVISION)  
ON APPEAL FROM THE HIGH COURT OF JUSTICE  
QUEEN'S BENCH DIVISION  
COMMERCIAL COURT  
Mr. Justice Blai r 
[2015] EWHC 2857   
 
  Royal Courts of Justice  
Strand, London, WC2A 2L L 
  8 December 
 2016 
B e f o r e :  
LORD JUSTICE MOORE -BICK  
Vice -President of the Court of Appeal, 
 Civil
  Division  
LORD JUSTICE TOMLINSON  
and 
MR. JUSTICE ARNOL D 
____________________  
Between:  
 
 BARCLAYS BANK PLC  Claimant/  
Respondent  
 - and -  
 ENTE NAZIONALE DI PREVIDENZA ED 
ASSISTENZA DEI MEDICI E DEGLI 
ODONTOIATRI  Defendant/  
Appellant  
____________________  
Mr. Mark Hapgood Q.C. and Mr. Alan Roxburgh (instructed by Trowers & 
Hamlins LLP) for the appellant  
Miss Sonia Tolaney Q.C. and Mr. Adam Sher (instructed by Freshfields 
Bruckhaus Deringer LLP) for the respondent  
Hearing date : 17th November 
 2016
   
____________________  
HTML VERSION OF JUDGMENT
 
____________________  
Crown Copyright ©  
Lord Justice Moore -Bick :   
1. This is an appeal from the order of Blair J. dismissing the appellant's 
application under CPR Part 11 and giving summary judgment in favour of the 
respondent on its claim for a declaration that the claims being made by the 
appell ant in proceedings in Milan fall within the scope of agreements between 
the parties that the English courts are to have jurisdiction to determine their 
dispute.  
2. On 21st September 2007 the appellant, Ente Nazionale di Previdenza ed 
Assistenza dei Medici e degli Odontoiatri ("ENPAM") entered into an 
agreement with the respondent, Barclays Bank Plc ("Barclays"), described as a 
"Conditional Asset Exchange Letter" ("the Letter Agreement") for the 
exchange of various financial assets, including certain Secured L imited 
Recourse Credit -Linked Notes ("the Notes"). In October 2007 the parties 
entered into two supplemental agreements, but nothing directly turns on them. 
Some months later, on 31st March 2008 the parties entered into a Professional 
Client Agreement ("PC A") containing the terms by which all existing and 
future business between them should be governed. The Letter Agreement and 
the PCA each contained an English jurisdiction clause and an indemnity 
clause under which ENPAM agreed to indemnify Barclays agains t the 
consequences of any breach of the agreement.  
3. ENPAM is an Italian body which manages a fund for the benefit and welfare 
of doctors and orthodontists. It says that the transaction covered by the Letter 
Agreement was not one that was appropriate for a body of its kind and that the 
Notes in particular were an unsuitable form of investment. It claims that it was 
misled into entering into the agreement by two members of Barclays' staff 
who were acting in contravention of Italian law r elating to the selling of 
financial products and that it has suffered a serious loss as a result.  
4. On 12th June 2014 ENPAM, without any warning, commenced proceedings 
against Barclays in Milan. There were two heads of claim. The main claim 
was for damages for breach of the duty of good faith and failure to comply 
with Italian financial regulations in connection with the negotiation and 
execution of the Letter Agreement contrary to articles 1337 and 2043 of the 
Italian 
 Civil
  Code. It was common ground that it would be characterised by 
English law as a claim in tort and consistently with that formulation of its 
claim ENPAM relied on article 5(3) of the Judgments Regulation (Regulation 
(EC) No. 44/2001) as giving the court in Mi lan jurisdiction. The secondary 
claim was for a declaration that as a result of Barclays' misconduct the Letter 
Agreement and the subsequent agreements between the parties should be 
declared null and void or should be cancelled for fraud or mistake. The co urt 
is said to have jurisdiction over the secondary claim as a result of its right to 
assert jurisdiction over the primary claim. In its statement of claim in Milan 
ENPAM asserted that the jurisdiction clause in the Letter Agreement was 
invalid, but it mad e no express reference to the PCA or the jurisdiction clause 
which it contained and the PCA was not included in the index of relevant 
documents attached to the statement of claim.  
5. On 15th September 2014 Barclays commenced proceedings against ENPAM in 
the Commercial Court seeking damages for breach of the jurisdiction clauses 
in the Letter Agreement and the PCA. On 20th April 2015 ENPAM responded 
by applying under CPR Part 11 for a declaration that the court should not 
exercise its jurisdiction to hear the action and for an order staying the 
proceedings pursuant to articles 27 or 28 of the Judgments Regulation. On 18th 
May 2015 Barclays issued an application for summary judgment on its claim. 
On 31st July 2015 Flaux J. directed that that application be heard  at the same 
time as ENPAM's application, subject to the directions of the judge hearing 
the applications.  
6. On 14th September 2015 the applications came on for hearing before Blair J. 
In the course of the proceedings Barclays agreed not to pursue its claim  under 
the indemnity clause in the Letter Agreement and to amend its claim form and 
particulars of claim accordingly. On that basis the judge held that the 
proceedings in London and Milan did not involve the same cause of action 
within the meaning of artic le 27, which was therefore not engaged. It was 
common ground that the proceedings were "related" within the meaning of 
article 28, but the judge declined to stay the English proceedings because he 
did not think that the common issues were substantial, beca use he was 
satisfied that the English jurisdiction clauses applied to the disputes between 
the parties and because the proceedings in Milan had been deliberately based 
on a claim in tort which enabled the court there to assume jurisdiction under 
article 5( 3) of the Judgments Regulation. He also held that it was appropriate 
to give summary judgment for Barclays on its claim for a declaration that in 
bringing the claims in Milan ENPAM was in breach of the jurisdiction clauses 
in the Letter Agreement and the P CA.  
Subsequent developments in Milan  
7. Blair J. delivered his judgment on 9th October 2015. In the course of it he 
pointed out that in the Milan proceedings ENPAM had not expressly alleged 
that the PCA or the jurisdiction clause which it contained were affe cted by 
Barclays' alleged illegal conduct and had not sought any relief in relation to 
the jurisdiction clause in the Letter Agreement. On 18th December 2015 
ENPAM served a document in the Milan proceedings described as a "Brief" 
pursuant to Article 183 of  the Italian Code of 
 Civil
  Procedure. The precise 
nature of this document was the subject of some debate, but it appears to 
combine what in England would be a reply with further development and 
elucidation of the original claim. Since the sixth paragraph of Article  183, 
under which the document is said to be served, makes provision for filing 
pleadings modifying claims previously filed and for time to reply to any new 
claims, it appears that the document can be used to raise a new claim.  
8. In its brief ENPAM expanded  its case on jurisdiction to include a specific 
averment that the PCA itself and the jurisdiction clauses in both that 
agreement and the Letter Agreement were invalid and of no effect and a 
prayer for a declaration that the jurisdiction clauses were null a nd void. Armed 
with that amendment ENPAM sought permission to adduce it as fresh 
evidence in support of its case on this appeal, it being said that under Italian 
procedural law it took effect as from the date of the original claim. By this 
means ENPAM soug ht to make good retrospectively the defects which the 
judge had identified in its claim in Milan.  
9. In support of his application to adduce this material Mr. Hapgood submitted 
that ENPAM could not have relied on it before the judge because the 
document did not then exist. He also submitted that the document did no more 
than clarify the statement of claim to remove any doubt that the reference to 
"other agreements" had been intended to include the PCA. This latter 
submission is in my view untenable, given the  precision with which the 
documents that are relied on are identified in the original pleading. As to the 
former, it is true, of course, that the brief had not come into existence when the 
matter was before the judge, but that is only because it is a thinl y disguised 
attempt to make good defects identified in the judgment. An attempt of this 
kind to rely on a doctrine of relation back under Italian law seems to me to 
raise a number of difficulties, not least in relation to the date when the court in 
Milan w as seised of the new claims for the purposes of article  27. If the 
question were simply one of exercising our discretion, I would not be in 
favour of allowing ENPAM to rely on this opportunistic manoeuvre to plug 
the gaps which the judge identified in its case. Clearly, the new allegations in 
the brief could have been included in the original pleading and could have 
been put before the judge. Strictly speaking, if it wishes to rely on the brief 
ENPAM needs the court's permission to file additional evidence exhibiting it 
and for the reasons I have given I would refuse it on the grounds that it comes 
too late.  
10. However, I do not think that the issue can be disposed of in that simple and 
straightforward way, because, if ENPAM is right in saying that under Itali an 
procedural law the allegations in the brief relate back to the date of the 
statement of claim, it is necessary to consider whether we are bound to stay 
the English proceedings under Article 27 of the Judgments Regulation, 
whatever may have been the posi tion before the judge. I do not think it would 
be right, therefore, for us simply to refuse permission to adduce the brief in 
evidence, since that would amount to shutting our eyes to developments 
which, for better or worse, have now taken place in Milan. Those 
developments raise questions concerning the date at which the application of 
Article  27 is to be determined and the time when the court in Milan was seised 
of the new claims for the purpose of that article. They are to be determined by 
reference to E uropean law rather than domestic Italian law.  
The Judgments Regulation  
11. The material parts of Articles 27 and 28 of the Judgments Regulation provide 
as follows:  
"Article 27  
1. Where proceedings involving the same cause of action and between the 
same parti es are brought in the courts of different Member States, any court 
other than the court first seised shall of its own motion stay its proceedings 
until such time as the jurisdiction of the court first seised is established.  
2. Where the jurisdiction of the court first seised is established, any court other 
than the court first seised shall decline jurisdiction in favour of that court.  
Article 28  
1. Where related actions are pending in the courts of different Member States, 
any court other than the court first seised may stay its proceedings.  
. . .  
3. For the purposes of this Article, actions are deemed to be related where they 
are so closely connected that it is expedient to hear and determine them 
together to avoid the risk of irreconcilable judgments resulting from separate 
proceedings."  
12. Miss Tolaney Q.C. submitted, correctly in my view, that the question whether 
proceedings involving the same cause of action between the same parties have 
been brought in the courts of differ ent Member States so as to engage 
Article  27 is to be determined at the date of commencement of proceedings in 
the court second seised. In Gantner Electronic G.m.b.H. v Basch Exploitatie 
Maatschappij BV  (Case C -111/01) [2003] ECR I -4207  the European Court of 
Justice held that Article 21 of the Brussels Convention (the predecessor of 
Article 27):  
"30. . . . adopts a simple method to d etermine, at the outset of proceedings, 
which of the courts seised will ultimately hear and determine the dispute. The 
court second seised is required, of its own motion, to stay its proceedings until 
the jurisdiction of the court first seised is establish ed. Once that has been 
established, it must decline jurisdiction in favour of the court first seised. The 
purpose of Article 21 of the Convention would be frustrated if the content and 
nature of the claims could be modified by arguments necessarily submitt ed at 
a later date by the defendant. Apart from delays and expense, such a solution 
could have the result that a court initially designated as having jurisdiction 
under that article would subsequently have to decline to hear the case."  
13. I have no doubt that  the same principles apply to Article 27 of the Judgments 
Regulation, so the question is whether, at the time the proceedings in London 
were commenced, the court in Milan was seised, or must be deemed to have 
been seised, of the claims which ENPAM seeks to  introduce for the first time 
in its brief.  
14. The time at which a court becomes seised is governed by Article 30 of the 
Judgments Regulation, the material parts of which provide as follows:  
"Article 30  
For the purposes of this Section, a court shall be dee med to be seised:  
1. at the time when the document instituting the proceedings or an equivalent 
document is lodged with the court, . . . , or  
2. if the document has to be served before being lodged with the court, at the 
time when it is received by the au thority responsible for service . . . ."  
15. In FKI Engineering Ltd v Stribog Ltd [2011] 1 WLR 3264  the court had to 
consider when the German and English courts had become seised of the 
respective actions for the purposes of Article 28. The proceedings in Germany 
had been issued first and the English proceedings some months later, but after 
the English proceedings had been issued an amend ment was made in the 
German proceedings to contest the validity of an assignment that had been 
pleaded and relied on in the English action. As a result, the two actions 
became "related" within the meaning of Article 28(1) and a question arose 
whether the E nglish or German court had been first seised.  
16. Article 28 is concerned with related proceedings , so it is perhaps not 
surprising that the court held that the court first seised was that in which 
proceedings had first been issued, in that case the German co urt. Article 27, on 
the other hand, is concerned with proceedings involving the same cause of 
action and the same parties and therefore requires one to focus on causes of 
action  rather than proceedings. In his judgment Rix L.J. compared Articles 27 
and 28 and contrasted the issues to which the question of seisin is directed. 
Having observed that the court had been directed to authorities relating to the 
identification of the court first seised for the purposes of Article 27 he said:  
"83. . . . there have b een authorities which discuss what is said to be the 
connected issue of how one identifies the court first seised of two actions 
involving "the same cause of action and between the same parties" within 
article 27. It is established that the "same cause of action" involves the double 
concept of "cause" and "objet". It is no longer suggested that the German and 
the English actions come within this concept.  
84. The essence of those cases is that where the "same cause of action" or "the 
same parties" are introd uced only by way of service, or amendment, the 
relevant proceedings are only "brought" at the time of such service or 
amendment, not at the time of the institution of the original, unamended, 
proceedings."  
17. Without taking us to the underlying authorities Mi ss Tolaney relied on that 
observation as containing a correct statement of the law and I did not 
understand Mr. Hapgood to challenge it. She also relied on the following 
passage from Dicey, Morris & Collins on The Conflict of Laws , 15th ed. 
paragraph 12 -069:  
"As it is difficult to see how a court can be said to be seised of a claim which 
has not been made and does not appear in the claim form, it cannot be correct 
that as long as a claim form has been issued and served, the court already has 
temporal prior ity over an issue which may later be added by amendment."  
18. In response to Miss Tolaney's submissions Mr. Hapgood drew attention to a 
passage in Lord Clarke's judgment in Starlight Shipping Co. v Allianz Marine 
& Aviation Versicherungs A.G. (The 'Alexandros T')  [2013] UKSC 70 , [2014] 
1 All ER 590 , in which he stated that he did not regard it as acte clair that a 
court became seised of a cause of action introduced by amendment only from 
the date of the amendment (paragraph 72). Lord Clarke had earlier referr ed 
with apparent approval to the passage in the judgment of Rix L.J. in FKI 
Engineering v Stribog  to which I have referred and also to the passage in 
Dicey  mentioned earlier, although not to the judgment in Gantner Electronic v 
Basch . The purpose of Articl e 27 is to avoid the risk of inconsistent judgments 
and it achieves that by ensuring that the court first seised has the opportunity 
to determine its jurisdiction free of competition from other courts in which the 
same cause of action arises between the sa me parties. It would be surprising, 
therefore, if the court second seised of a particular cause of action should be 
entitled to be treated as first seised on the grounds that the cause of action had 
been introduced by amendment into proceedings issued firs t.  
19. I think that the expression "proceedings involving the same cause of action 
and between the same parties" in Article 27 is to be read as a whole and that 
such proceedings do not come into existence, and the court is not seised of the 
relevant claim, un til the cause of action has been raised in proceedings before 
the court, whether originally or by amendment. In my view the right course for 
us to take in this case is to follow the expressions of opinion by judges and 
commentators, which seem to me accura tely to reflect the principles 
underlying Article 27. For these reasons I am of the opinion that insofar as the 
amendment to ENPAM's claim in Milan gives rise to the same cause of action 
as is raised in the proceedings in London, the court in Milan became seised of 
it only when the brief was filed. As a result the development came too late to 
affect the issues in the appeal.  
Article 27  
20. The main dispute between the parties concerns the question whether the 
proceedings in Milan and London involve the same ca use of action within the 
meaning of Article 27. On behalf of ENPAM Mr. Hapgood Q.C. submitted 
that they do, because, although ENPAM's primary claim lies outside the Letter 
Agreement and is for what in England would be characterised as a tort, it is 
alleged  that one consequence of Barclays' unlawful conduct was to render that 
agreement and all subsequent agreements between the parties, including the 
PCA, null and void. The validity of the jurisdiction clause is therefore in issue, 
which is the same question as that which arises in the English proceedings, in 
which Barclays is seeking to rely on the jurisdiction clauses as the foundation 
of its claim.  
21. Miss Tolaney Q.C. submitted on behalf of Barclays, however, that the fact that 
the two sets of proceedings ra ise common issues is not sufficient to bring the 
case within the scope of Article 27(1). European jurisprudence establishes that 
in order to come within that article the proceedings must have the same factual 
and legal basis ( la même cause ) and be aimed at  obtaining the same relief ( le 
même objet ). That test is not satisfied in the present case, because the 
proceedings are based on different causes of action and seek different relief. 
That is made even clearer by the fact that a jurisdiction agreement, like an 
arbitration agreement, is regarded as an independent contract, separable from 
the principal contract of which it forms part and unaffected by factors that 
undermine the validity of the  principal contract, such as fraud, mistake or 
illegality. It follows that an assertion that the principal contract was void for 
failure to comply with the requirements of Italian law does not carry with it an 
assertion that the jurisdiction agreement is u nenforceable. The principle of 
separability is well established in European and domestic law and its existence 
was not in dispute before us.  
22. The leading authority on article 27 is The 'Alexandros T' . The case arose out of 
a dispute between owners of the v essel 'Alexandros T'  and their hull insurers 
who had declined to indemnify the owners against the loss of the vessel on the 
grounds that it had been unseaworthy with the privity of the insured. The 
owners made various allegations of impropriety and miscond uct against the 
insurers. Two policies of insurance had been issued, one by insurers in the 
companies market and one by insurers in the Lloyd's market. Each policy 
contained an English exclusive jurisdiction clause. In due course the owners 
brought proceed ings against the insurers in London, which were settled under 
two agreements, each of which also contained an English exclusive 
jurisdiction clause. The proceedings were stayed under a Tomlin Order. 
Subsequently the owners brought proceedings against the i nsurers in Greece 
claiming damages for their failure to pay under the policies. In response the 
insurers made an application in the English proceedings for a declaration that 
the Greek claims fell within the scope of the jurisdiction clauses in the 
settlem ent agreements. The question arose whether the English court was 
bound to stay the proceedings before it under article 27 and, if not, whether it 
should exercise its discretion to stay them under article 28.  
23. The first question for decision was whether the  English proceedings and the 
Greek proceedings involved the same cause of action. In paragraph 28 of his 
judgment Lord Clarke, with whom Lord Sumption and Lord Hughes (and in 
this respect Lord Neuberger and Lord Mance) agreed, summarised the relevant 
princ iples as follows (omitting reference to supporting authority):  
(i) the phrase "same cause of action" in Article 27 has an independent and 
autonomous meaning as a matter of European law; it is therefore not to be 
interpreted according to the criteria of na tional law;  
(ii) in order for proceedings to involve the same cause of action they must 
have " le même objet et la même cause "; 
(iii) identity of cause  means that the proceedings in each jurisdiction must 
have the same facts and rules of law relied upon as the basis for the action;  
(iv) identity of objet  means that the proceedings in each jurisdiction must have 
the same end in view;  
(v) the assessment of identity of cause  and identity of object  is to be made by 
reference only to the claims in each action and  not to the defences to those 
claims;  
(vi) it follows that Article 27 is not engaged merely by virtue of the fact that 
common issues might arise in both sets of proceedings.  
24. In my view a comparison between the claims in the proceedings in Milan and 
London in this case demonstrates clearly that the cause  in Milan is not the 
same as the cause  in London. As far as the factual basis of the claims is 
concerned, in Milan both of ENPAM's claims are based on the conduct of 
Barclays' representatives leading up to th e making of the Letter Agreement, 
whereas in London Barclays' claim is based on the commencement of 
proceedings by ENPAM in Milan. As far as the juridical basis of the claims is 
concerned, ENPAM's main claim in Milan is a claim in tort for breach of 
Italia n law. As such it provides the basis for its assertion that the court has 
jurisdiction under article 5(3) of the Judgments Regulation. The challenge to 
the validity of the jurisdiction clause in the Letter Agreement is simply a 
means of fortifying the cont ention that the court in Milan has jurisdiction to 
entertain the claim. ENPAM's secondary claim for a declaration that the Letter 
Agreement is null and void and for restitution of sums paid under it is based 
on Barclays' failure to comply with certain prov isions of Italian law. Barclays' 
claim in London, by contrast, is for damages for breach of the jurisdiction 
agreements.  
25. Mr. Hapgood submitted that, by asserting in paragraph 11.1 of its statement of 
claim in the Milan proceedings that the Letter Agreemen t would not be an 
effective method of excluding the court's jurisdiction and by seeking a 
declaration that the Letter Agreement "and the subsequent agreements 
between the parties and therefore the entire deal" is a nullity, ENPAM made it 
clear that it was challenging the validity of the Letter Agreement, the PCA and 
the jurisdiction clauses they contained. I am unable to accept that submission. 
The challenge to the Letter Agreement seems to me to be directed to the 
substance of that agreement and to the que stion whether it was an appropriate 
or effective vehicle for modifying the effect of article 5(3) of the Judgments 
Regulation. Moreover, the prayer is squarely directed to the substance of the 
Letter Agreement and given that there were two supplementary ag reements to 
the Letter Agreement, I do not think that the general reference to "the 
subsequent agreements between the parties" and "the entire deal" can properly 
be read as extending to the PCA and the separable jurisdiction clauses.  
26. For these reasons I d o not think that the proceedings involved the same cause .  
27. Nor do I think that they involved the same objet . The aim of the proceedings 
in Milan is to recover damages for "pre -contractual and extra -contractual 
liability" or restitution of sums paid under the agreement. The aim of the 
proceedings in London is to recover damages for breach of the jurisdiction 
clauses. It is true that the validity of the jurisdiction clauses (as opposed to the 
substantive agreements) is an issue that will or may ar ise in both sets of 
proceedings, but as Lord Clarke pointed out, that is not sufficient to bring 
article 27 into play.  
28. Since there is in my view no identity of cause  or objet  in this case, I do not 
think that the court was bound to stay the proceedings pu rsuant to article 27 of 
the Judgments Regulation. This is not a case in which the claims in Milan and 
London are mirror images of each other and thus legally irreconcilable (see 
per Lord Clarke in The 'Alexandros T'  at paragraph 30). Whether Barclays 
acted  unlawfully in connection with the Letter Agreement and whether that 
agreement is void as a result had no bearing on the validity of the jurisdiction 
agreement in that agreement and a fortiori on the jurisdiction agreement in the 
PCA.  
Article 28  
29. As noted earlier, it was common ground before the judge and before us that 
the proceedings in Milan and the proceedings in London are related. The only 
question for decision, therefore, is whether the judge was wrong in exercising 
his discretion not to stay the pro ceedings in London.  
30. In its skeleton argument for the appeal ENPAM submitted that, if the two sets 
of proceedings are held to involve the same cause of action as far as the Letter 
Agreement is concerned, so that they must to that extent be stayed under 
article 27, it would be sensible to stay the proceedings relating to the PCA to 
enable those also to be decided in Milan, because the issues are so closely 
related. If I had come to the conclusion that it was necessary to stay part of the 
proceedings under ar ticle 27, that point might have had some force, but since I 
have come to the contrary conclusion, it falls away.  
31. The judge identified three main factors militating against a stay: (1) the 
existence of the jurisdiction clauses which had been agreed before the dispute 
arose, (2) the speed at which the English courts could dispose of the issue and 
(3) the fact that the proceedings in Milan had been deliberately structured in a 
way that would enable that court to assume jurisdiction even though the main 
claim did not contain a challenge to the validity of the agreements. He 
considered that the last point tended to undermine any suggestion that the 
court should defer to Milan as the court first seised as a fundamental principle 
independent of article 27. These a ll seem to me to be proper factors for the 
judge to have taken into account and indeed Mr. Hapgood made it clear that he 
did not challenge the judge's exercise of his discretion on any grounds other 
than those mentioned earlier. It follows, therefore, that  there is no basis on 
which we could set aside his decision. I should, perhaps, for completeness add 
that the fact that the filing of ENPAM's brief in the Milan proceedings had 
resulted in a closer relationship between the proceedings than existed 
previous ly, is not, I think, sufficient to outweigh the factors on which the 
judge relied in declining to stay the proceedings in London.  
Summary judgment  
32. In the court below ENPAM advanced five reasons why the judge should not 
give summary judgment in favour of B arclays on its claims. Before us, 
however, it pursued only one of those arguments, namely, that Barclays would 
be likely to rely on that judgment as giving rise to a binding decision which 
would pre -empt, and thus interfere with, the jurisdiction of the co urt in Milan 
to determine the meaning and effect of the jurisdiction clauses. He submitted 
that that would infringe the European Union principle of mutual trust between 
the courts of Member States exemplified by the decisions in cases such as 
Turner v Grov it [2005] 1  A.C. 101 and West Tankers Inc. v Allianz S.p.A.  
[2009] 1 AC 1138 , in which the European Court of Justice held that the courts 
of one Member State cannot by injunction restrain a party to proceedings in 
another Member State from pursuing them.  
33. The judge rejected that argument. He held that it was not seriously open to 
doubt that the claims in the Milan proceedings fell wit hin the scope of the 
jurisdiction clauses and that he was bound by a decision of this court in The 
'Alexandros T'  [2014] 2 Lloyd's Rep 544 that giving summary judgment would 
not infringe the principle of mutual trust between the courts of Member States. 
He also rejected the submission that the principle of mutual trust applies 
independently of articles 27 and 28.  
34. Mr. Hapgood submitted that the present case could be distinguished from The 
'Alexandros T' on the grounds that there was in that case no need for  the Greek 
court to resolve issues concerning the validity, scope or effect of the relevant 
jurisdiction clauses. On the basis of a dictum of Christopher Clarke  J. in 
Banco de Honduras S.A. v East West Insurance Co. Ltd  [1996] L.R.L.R. 74 at 
pages 84 -85 to  the effect that the right to insist on being sued only in the 
contractually agreed forum is not absolute, he argued that a party to a 
jurisdiction clause is not entitled to sue for breach of the clause where to do so 
would infringe the principle of trust between the courts of Member States.  
35. In my view this proposition is not only unsupported by authority, it is 
impossible to reconcile with the decision of this court in The 'Alexandros T' . 
As the judge noted, the suggested analogy between ordering summary 
judgment and granting an anti -suit injunction was specifically considered and 
rejected by Longmore L.J. in paragraphs 15 -16 of his judgment. I am unable to 
accept that there is any material distinction between the present case and The 
'Alexandros T'  and in  those circumstances it seems to me that we are bound to 
take the same view and hold that the judge was not precluded from granting 
summary judgment by considerations of that kind.  
36. In support of his submission that ENPAM had an arguable defence on the 
merits to Barclays' claim Mr. Hapgood invited us to consider certain 
exchanges between the Bench and counsel in an appeal currently pending 
before the Supreme Court, AMT Futures Ltd v Marzillier, Dr. Meier & Dr. 
Gunter Rechtanswaltsgesellschaft m.b.H.  [2015] 
 EWCA
  
Civ 143,  [2015] 
QB 699 . The burden of his submission was that, because the Supreme Court 
had indicated that it was minded to refer to the C ourt of Justice of the 
European Union the question whether the courts of one Member State should 
refuse to entertain a claim for damages for bringing proceedings in the courts 
of another Member State in breach of an exclusive jurisdiction clause, the 
issue  was sufficiently arguable to give rise to a real prospect of success at trial.  
37. In my view it would be wrong in principle for us to have regard to statements 
of judicial opinion by other judges in the course of argument in other 
proceedings. The court mus t decide for itself on the basis of the evidence 
before it and existing authority whether the defendant has any real prospect of 
defending the claim. This is not a case in which the facts giving rise to the 
claim need to be investigated at trial. In the pr esent case the only ground of 
defence on which ENPAM continued to rely was that to give summary 
judgment would infringe the principle of mutual trust between the courts of 
Member States. That is a question of law, which the court can and should 
decide on t he application. Existing authority in the shape of The 'Alexandros 
T' requires us to hold that giving judgment on a claim of this kind is not 
impermissible under European law, and since there was no other challenge to 
this part of the judge's decision, the appeal against this part of the order below 
must also fail.  
Conclusion  
38. For all these reasons I have reached the conclusion that the appeal should be 
dismissed.  
Lord Justice Tomlinson :  
39. I agree.  
Mr. Justice Arnold :  
40. I also agree .