„(…) Introduction
1. There are before the Court applications by the Defendants in two
related actions, to set aside, stay or strike out proceedings in those
actions on jurisdictional grounds or, in the case of one of the applications,
for alleged abuse of process. I shall describe the applications in more
detail below.
2. The actions arise out of industrial action taken by the F. S.’s Union
(”FSU”) and the A.-J. K. T. AKT RY (”AKT” – the F. T. W. Federation),
respectively the Second and Third Defendants in each action, against
4 British-flagged ships in Finnish ports in March 2001. Both of these
Unions are domiciled in Finland. …They were owned by, respectively, the
First, Second, Fourth and Fifth Claimants, all of which are companies
incorporated in the British Virgin Islands. (The Claimants are the same
in each action). The Third Claimant, a company incorporated in England,
has a contingent interest in the FINNMASTER, which it is in the process of
acquiring under a conditional sale agreement. The Sixth Claimant (”N.”),
a company incorporated in Scotland, is the technical, safety and crewing
manager of the vessels.
3. The First Defendant, the I. T. W.’ Federation (”ITF”), is domiciled in
England, with offices in London. It is a trade union organisation composed
of a federation of trade unions of transport workers around the world. FSU
is one of its affiliates. It is the Claimant’s case that the industrial action in
Finland was instigated by ITF. This is denied by ITF.
4. The Vessels, purpose-built for the intended trade from Finland to
ports in other European Union countries such as England and Germany.
In March 2001, each was operating under a 5-year time charter which
granted the charterers, the Finnlines Group, the option to terminate
the charter should an ITF boycott affect the vessel for more than 72
continuous hours. The Vessels are, as I have mentioned, British – flagged
ships, whose crews were employed on terms which had been approved by
the British M. and C. Agency (” MCA”).
5. On 2nd March 2001 a Mr Simo Nu., who signed himself as ”ITF
Coordinator Finnish Seamen’s Union”, sent a ”Notice to Shipowners”
addressed to the Owners of the Vessels and N. as their representative
and manager, stating that he had ”inspected your flag of convenience
vessel...FINNH. today at Helsinki” and found that it was not covered
by an acceptable collective bargaining agreement, and requiring N. on
behalf of Owners to enter into negotiations with FSU for the ”ITF Standard
Collective Agreement” covering all officers and ratings employed on
the Vessels, and to back date wages and benefits due under such an
Agreement to the beginning of each crew member’s employment. He
advised that if Owners failed to sign such an agreement and pay such
wages, the vessels would be ”open for any actions deemed necessary
without any further notice.”
6. The industrial action began on the 7th March 2001. …
7. Between 9th and 12th March 2001, the Claimants sought and obtained
interim injunctive relief against ITF, from the Commercial Court in London.
[…]
8. However this injunction did not have the desired effect. The industrial
action continued, and it was apparently made clear that it would continue
unless and until two agreements were signed on behalf of Owners.
These two agreements were prepared by FSU, and were expressed to
be between FSU and N. as Owner/Agent of the Owner of the Vessels.
Faxed copies were sent to London by FSU, signed in London by Mr K., the
Managing Director of N., on 13th March 2001, and faxed back to FSU in
Finland. The agreements were as follows:
(1) A Settlement Agreement, which recorded that the Vessels had been
boycotted by FSU, supported by AKT, was expressed to be “full and
final and solves all present disputes between all parties involved,” and
which provided for the signature by the parties of a Collective Bargaining
Agreement covering all the Vessels, in the form attached thereto;
(2) The Collective Bargaining Agreement (”CBA”), which set out the
standard terms and conditions on which all seafarers serving on the
Vessels were thenceforward to be employed.
9. Following the signature of these two Agreements, the industrial action
ceased, and the dockers resumed loading or discharge of the Vessels.
10. The injunction applications were made in what became Claim No.
2001 Folio 290, the first of the two actions with which the present
applications are concerned, and to which I shall refer as ”the March
Action”. This action originally named only ITF as Defendant. On 14th
March 2001 the Claim Form and Particulars of Claim therein were served
on ITF. In the Particulars of Claim the Claimants alleged that the industrial
action was instigated by ITF, was a breach of the dockers’ contracts with
their employers, and constituted unlawful interference with the Claimants’
business and with alleged directly effective rights of the Claimants under
Community law to trade their Vessels to Finland. They pleaded that the
Settlement Agreement was void or voidable for duress, but made no
express reference to the CBA. They sought a permanent injunction in
similar terms to those of the interim injunction granted by David Steel J,
damages (together with interest), and a declaration that the Settlement
Agreement was procured by duress unlawfully, and was void or voidable.
11. On 23rd March 2001, following the signature of the Settlement
Agreement and the CBA and the consequent cessation of the industrial
action, the interim injunction was discharged by consent.
12. …on 9th March 2001, the First and Third to Fifth Claimants (and
Nordic Forest Terminals Ab, not a party to the English Actions) applied
without notice to the Helsinki District Court for urgent injunctive relief
against FSU and AKT. This without notice application was, however,
rejected by the District Court, which gave directions for service of the
application on FSU and AKT, and for FSU and AKT to deliver their reply by
30th March 2001. …The application was consequently withdrawn on 26th
March 2001, and the matter was dismissed as recorded in a decision of
the District Court dated 4th April 2001.
13. ITF served its Defence in the March Action on 10th May 2001. Among
other things it denied that it had instigated or authorised any of the
industrial action, which it asserted had been taken by FSU and AKT on
their own initiative. […]
14. On 15th November 2001, a Case Management Conference in the
March Action took place before Langley J, who gave what I understand to
have been agreed directions for a trial, to commence on the first available
date after 1st October 2002. The trial was subsequently fixed to start on
21st October 2002, with an estimated length of 8 days, and that remains
the current position.
15. However, after the directions for trial had been agreed, the Claimants
informed Langley J. that they intended to apply for permission to join
FSU and AKT as additional defendants to the March Action. They asked
that this information be treated as confidential, so that ITF would not
be allowed to pass it on to FSU and AKT; but Langley J. refused their
request, and hence it was communicated without restriction as to any
further dissemination.
16. The Claimants were concerned that on being notified of their
application for permission to join them as additional Defendants to the
March Action, FSU and AKT would seek to pre-empt such joinder by
themselves commencing proceedings in Finland. Accordingly, on 15th
November 2001, the Claimants commenced the second English Action
with which the present applications are concerned, Claim No. 2001 Folio
1278, to which I shall refer as ‘the November Action’. […]
17. On the following day, 16th November 2001, the Claimants issued their
application for permission to join FSU and AKT as additional Defendants
to the March Action. This application was accompanied by a draft Claim
Form and Particulars of Claim, in virtually identical terms to those of the
November Action.
18. It is the Claimants’ case that the English Courts have jurisdiction
in respect of their claims against the Finnish Unions in both Actions, by
virtue of Article 6.1 of the Brussels Convention. […]
As already mentioned, ITF is domiciled in England.
19. By letter dated 19th November 2001, ITF, as it was entitled to do,
informed FSU of the Claimants’ application for permission to join FSU and
AKT as additional defendants, […]
20. At 1330 hours Finnish time on 5th December 2001, the Claim Form in
the November Action was served on FSU in Finland.
21. At 1500 hours on the same day, FSU and AKT commenced
proceedings in Finland against N., sued as agent on behalf of Owners.
They did so by lodging an application summons, or ”plaint”, with the
Finnish Labour Court, receipt of which was duly acknowledged by an
administrative official of the Labour Court, who stamped the application
summons with the seal of the Labour Court. These proceedings, to which
I shall refer as ”the Finnish Action”, and which I shall describe in more
detail below, have not yet been served on any of the Claimants. In
Finland, service of proceedings is in the hands of the courts. I have been
told that there have been difficulties in serving N. at its registered office in
Glasgow, and that service is currently being effected through the Scottish
courts, at the request of the Finnish courts.
22. At 1730 hours on 5th December 2001, the Claim Form in the
November Action was served on AKT in Finland.
24. On 7th December 2001, Cresswell J. heard the Claimants’ application
to join FSU and AKT as additional defendants to the March Action. …
24. The amended Claim Form and Particulars of Claim were duly served
on FSU and AKT in Finland on 19th December 2001.
25. On 4th February 2002, FSU and AKT issued application notices in
the March and November Actions. Both applications are made pursuant
to CPR Part 11. In each, FSU and AKT seek a declaration that the Court
has no jurisdiction to try the claims made against them, and Orders
setting aside the Claim Form and service of the proceedings on them,
or staying the proceedings. In addition, in the March Action they seek
an Order setting aside the Order of Cresswell J granting permission to
join them as additional Defendants thereto. Most of the grounds relied
on are common to both applications. In both, FSU and AKT contend
that the Finnish Labour Court was first seised for the purposes of Article
21 of the Brussels Convention by virtue of the commencement of the
Finnish Action on 5th December 2001; they also invoke Article 22. In
both, they contend that the Finnish Courts have exclusive jurisdiction
under Article 17 of the Brussels Convention by virtue of the presence of
a Finnish jurisdiction clause in the CBA. (In written and oral submissions
they also contended that there was an Article 17 jurisdiction clause in
the Settlement Agreement). In both, they assert that CPR Rule 6.19
(which permits service of a claim form out of the jurisdiction without the
permission of the Court. … In their application notice in the November
Action they further allege that Article 6.1 of the Brussels Convention does
not apply because the claim against ITF discloses no genuine issue to
be tried, and therefore that there is no basis for the English courts to
exercise jurisdiction. I omit reference to certain other grounds which were
not pursued.
26. On 8th February 2002, ITF, on whom the Claim Form in the November
Action had not by then been served, served notice on the Claimants
pursuant to CPR Rule 7.7 requiring them either to discontinue the action
or proceed with service by 22nd February 2002. The proceedings were
duly served on ITF on 22nd February 2002.
27. On 8th March 2002, as foreshadowed in ITF’s CPR Rule 7.7 notice, ITF
issued an application notice for an Order striking out the November Action
as against them, under CPR Rule 3.4 and/or the inherent jurisdiction
of the Court, on the grounds that it was, by reason of the existence of
pending proceedings between the Claimants and ITF in the March Action
concerning the same claims, an abuse of the process of the Court.
28. The three applications came on for hearing together. …. At the outset
of the hearing, I was invited as a matter of case management to hear
ITF’s abuse of process application in the November Action first, as ITF had
made no application in the March Action and as it was common ground
that if ITF’s application in the November Action succeeded, the claims
therein against FSU and AKT would also have to be struck out, because
the claim against ITF provided the only basis for Brussels Convention
jurisdiction, under Article 6.1, against the Finnish Unions. However as
the March Action came first, and as the November Action only assumed
real significance if the Finnish Unions’ application in the March Action was
successful, I ruled that I should hear the Finnish Unions’ arguments on
those applications first. […]
The issues
30. The application of the Finnish Unions in the March Action raises the
following main issues:
(1) Where the English court would have Brussels Convention jurisdiction
unless, as alleged by a defendant, (a) a court in another Contracting
State was first seised of proceedings involving the same cause of action
and between the same parties within the meaning of Article 21, or (b)
the disputes the subject of the English proceedings are subject to a
foreign jurisdiction clause to which Article 17 applies, upon whom does
the burden of proof lie, and what is the applicable standard of proof, that
Articles 21 and/or 17 do or do not apply? (Issues (2) – (4) below must be
understood in the light of the answers to Issue (1).)
(2) When does a Finnish Court become seised of an action for the
purposes of Article 21 of the Brussels Convention?
(3) If the answer to Issue (2) is that a Finnish Court becomes seised of
an action for the purposes of Article 21 upon lodgement with the court
of the application summons or plaint, with the result that the Finnish
Labour Court became seised of the Finnish Action for these purposes on
5th December 2001 – that is, two weeks before the English Court became
seised of the March Action as against FSU and AKT upon service of the
amended Claim Form therein on those Defendants – does the Finnish
Action involve the same cause of action and is it between the same
parties as the March Action within the meaning of Article 21?
(4) Are the disputes between the Claimants and FSU and/or AKT in
respect of which the Claimants claim against those Defendants in the
March Action, disputes that the parties have agreed that the Finnish
Courts (or any particular Finnish Court) are to have jurisdiction to settle
within the meaning of Article 17 of the Brussels Convention?
(5) Were the Claimants entitled under CPR Rule 6.19 to serve the
amended Claim Form in the March Action on FSU and AKT in Finland
without first having obtained the permission of the Court to effect such
service out of the jurisdiction, and if not, what should be the consequence
of their failure to obtain such permission? […]
32. The first issue raised by the Defendants’ applications in the November
Action is whether that Action is an abuse of process, […]
33. If the November Action is not an abuse of process, then my decisions
on the issues arising on the application of FSU and AKT in the March
Action will also be applicable in relation to the identical, or similar, issues
that arise on their application in the November Action. However, the facts
relevant to the November Action equivalents to March Action Issues (3)
and (5) are different. If the Finnish Labour Court became seised of the
Finnish Action for Brussels Convention purposes on lodgement with the
Court on 5th December 2001, it was common ground that the English
Court was nonetheless first seised of the disputed claims against FSU in
the November Action, by virtue of the fact that the Claim Form therein
was served on FSU at 1330 hours Finnish time that same day, 1 2 hours
before lodgement of the application summons in the Finnish Action. As
Counsel observed in the course of argument, 5th December 2001 is a
day for the connoisseur of Article 21. The amended Claim Form in the
November Action was not served on AKT until 1730 hours Finnish time
that day, 1 2 hours after lodgement of the application summons in the
Finnish Action. Thus it was only AKT that was in a position to advance an
Article 21 argument in relation to the November Action. And at the time of
issue and service of the November Action, the only other pending English
proceeding was the March Action as against ITF, because permission had
not by then been obtained to join FSU and AKT as Defendants to that
Action.
34. I now turn to deal with the issues raised by the application of FSU and
AKT in the March Action.
The March Action
Burden and standard of proof
35. As mentioned above, the Claimants have relied on Article 6.1 of
the Brussels Convention (set out above) to found jurisdiction over FSU
and AKT for the purposes of both the March Action and the November
Action. They have done so on the basis that ITF has at all material times
been domiciled in England, and that their claims against FSU and AKT
are sufficiently connected with their claims against ITF to bring the case
within the principle of connectivity laid down by the European Court of
Justice in Kalfelis v. Bankhaus Schröder, […]
It has not and could not be suggested that the claims are not sufficiently
connected to bring the case within this principle. The Claimants’ reliance
on Article 6.1 for the purposes of the November Action has been
challenged for different reasons, which I shall consider when I deal with
the abuse of process arguments.
36. The provisions of the Brussels Convention upon which FSU and AKT
principally rely are Articles 17.1 and Article 21. […]
37. Although there is now House of Lords authority as to the appropriate
standard of proof to apply to an issue as to whether a necessary
precondition of Convention jurisdiction has been established by the
Claimant (Canada Trust Co v Stolzenberg (No. 2) [2002] 1 AC 1), the
questions of burden and standard of proof applicable where it is the
defendant who relies on Article 17 and/or Article 21 as grounds for the
English Court to decline jurisdiction, do not appear to have been explicitly
addressed in any reported judicial decision. […]
40. In Shevill v Press Alliance SA [1995] ECR I-415, …The Court ruled (at
page 446) that:
”The criteria for assessing whether the event in question is harmful and
the evidence required of the existence and extent of the harm alleged
by the victim of the defamation are not governed by the Convention but
by the substantive law determined by the national conflict of laws rule of
the Court seised, provided that the effectiveness of the Convention is not
thereby impaired”.
This ruling has been taken to be of general application, and to permit
English courts to set their own criteria for the degree of proof required
of matters essential to establishing jurisdiction under the Convention,
”provided that the effectiveness of the Convention is not thereby
impaired”.
41. In Canada Trust Co v Stolzenberg (No. 2) [1998] 1 WLR 547 (Court of
Appeal), [2002] 1 AC 1 (House of Lords),… The issue raised for decision
was whether the applicable standard was that of ”good arguable case”,
as the plaintiffs contended, or the ordinary civil standard, of proof on
the balance of probabilities, as the defendants submitted. The judge
(Rattee J) and all members of the Court of Appeal (Nourse, Pill and Waller
LJJ) held that the applicable standard was ”good arguable case”, in line
with the position under RSC Order 11 (now CPR Rules 6.20 – 21) as
authoritatively decided by the House of Lords in Seaconsar Far East Ltd v
Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438. […]
…43. As Waller LJ’s analysis makes clear, the underlying issue for the
court where Convention jurisdiction is in issue is whether it is right for
the court to take jurisdiction. The ”good arguable case” test is the result
of the court’s search for ”a concept not capable of very precise definition
which reflects that the plaintiff must properly satisfy the court that it is
right for the court to take jurisdiction”. At the inter partes stage, where
opposing arguments are being weighed in the interlocutory context,
Waller LJ interpreted the test as requiring the plaintiff (now claimant) to
show that he had ”a much better argument on the material available.” But
as he pointed out, the concept ”good arguable case” is a flexible one, and
may require particular scrutiny of certain factors, albeit in the context of
the limitations applicable to the interlocutory process.
44. The decision of Moore-Bick J in Glencore International AG v Metro
Trading International Inc. [1999] 2 LLR 632 provides an example of the
application of these principles in a case where the claimant was seeking
to establish jurisdiction under Article 17 of the Brussels Convention. The
Judge said this (at page 642):
”It is unnecessary and indeed inappropriate at this stage in the
proceedings for the Court to make any definitive ruling on issues which
form part of the substantive dispute between the parties. It is sufficient,
therefore, for a claimant who seeks to establish jurisdiction under art.
17 of the Convention to satisfy the Court that there is at least a good
arguable case that the dispute between the parties is governed by an
exclusive jurisdiction clause which satisfies the requirements of that
article: …In a case such as the present a good arguable case requires
less than proof on the balance of probabilities, but must nonetheless be
strong enough to justify retaining the action here rather than declining
jurisdiction in favour of the Court first seised in accordance with art. 21.”
45. The underlying issue, namely whether it is right for the court to take
jurisdiction, remains the same, whether the immediate issue before the
court on a challenge to jurisdiction is, have the matters necessary to bring
the case within Article 2 or one of the heads of special jurisdiction been
established to the requisite degree, or, must the court decline jurisdiction
(or stay the proceedings) because of the alleged existence of a foreign
jurisdiction clause within Article 17, or because the courts of another
Contracting State are allegedly first seised of a dispute involving the same
cause of action and between the same parties within the meaning of
Article 21. What is more, the Court must be satisfied that it is appropriate
to take jurisdiction, whether or not the defendant mounts a challenge to
jurisdiction. Thus for example Article 21 requires any court other than
the court first seised to stay proceedings of its own motion until the
jurisdiction of the court first seised is established.
46. In these circumstances I do not think it can be right that any legal
burden of proof, to whatever standard, can lie upon the defendant. I
accept the Claimants’ submission that the burden remains throughout
with the claimant, […]
47. The requisite standard is that of a good arguable case. I have borne
in mind that this is a flexible concept, and one that requires particular
scrutiny to be given in the present context to the material relevant to the
issues of whether Articles 17 and/or 21 are applicable. I have approached
these issues on the basis that, in this context, ”good arguable case”
requires the Claimants to demonstrate that they have much the better
argument on the material available. …When does a Finnish Court become
seised of an action for the purposes of Article 21?
48. In Zelger v. Salinitri (No 2) [1984] ECR 2397, the European Court …
gave the following guidance on the proper interpretation and application
of Article 21(at paras 14-16 of its judgment):
”14. It may properly be inferred from Article 21, read as a whole, that a
court’s obligation to decline jurisdiction in favour of another court only
comes into existence if it is established that proceedings have been
definitively brought before a court in another State involving the same
cause of action and between the same parties. Beyond that, Article 21
gives no indication of the nature of the procedural formalities which must
be taken into account for the purposes of considering whether or not
to recognize the existence of such an effect. In particular, it gives no
indication as to the answer to the question whether a lis pendens comes
into being upon the receipt by a court of an application or upon service or
notification of that application on or to the party concerned.
…The question as to the moment at which the conditions for definitive
seisin for the purposes of Article 21 are met must be appraised and
resolved, in the case of each court, according to the rules of its own
national law. […]
16. The answer to the question raised by the Oberlandesgericht München
is therefore that Article 21 of the Convention must be interpreted
as meaning that the court ”first seised” is the one before which the
requirements for proceedings to become definitively pending are first
fulfilled, such requirements to be determined in accordance with the
national law of each of the courts concerned.”
49. This decision established an autonomous, Convention definition of
seisin for the purposes of Article 21, namely that of definitive pendency,
but left it to the national law of the state concerned to determine when
the requirements of definitive pendency are fulfilled. The European Court
of Justice did not define what it meant by ”definitively pending”, but,
as the Court of Appeal has held (see below), it did not use the adverb
”definitively” by way of mere rhetoric, and some guidance as to what the
European Court of Justice may have had in mind is to be derived from
the submissions of the Commission, which used the phrases, ”seised
definitively” and ”definitively instituted”.
50. There is as yet no decision of the Finnish courts as to the stage at
which Finnish proceedings become definitively pending for the purposes of
Articles 21 and/or 22 of the Conventions.
51. The position with regard to English proceedings has been firmly
established as a result of two decisions of the Court of Appeal, in Dresser
UK Ltd. v. Falcongate Freight Management Ltd. [1992] QB 502 and Neste
Chemicals SA v. DK Line SA (The ”Sargasso”) [1994] 2 LLR 6. The rule is
that English proceedings become definitively pending for the purposes of
Articles 21 and 22 upon service of originating process, and not before. In
each of those 2 cases, the originating process in question was a writ, but
it was not suggested that the position was any different in relation to a
claim form issued in accordance with the Civil Procedure Rules. Although
those 2 decisions were directly concerned only with the time at which
English court became seised of proceedings for the purposes of Articles
21 and 22, they give authoritative guidance (at least so far as this court is
concerned) as to the proper interpretation of Articles 21 and 22 and of the
decision in Zelger v. Salinitri.
52. I take first the decision in Dresser …This is a case where the English
court has to review Finnish procedure. There is no decision of the Finnish
courts as to what constitutes ”definitive pendency” for the purposes
of Articles 21 and 22, but if such an issue were to arise, there is no
reason to doubt that the Finnish courts would consider their procedural
rules, not purely from a domestic standpoint, but also in the light of the
international purposes of the Convention. […]
There is no reason to doubt that a Finnish court would recognise that it
had not only a similar right, but also a similar obligation. […]
57. The Claimants’ case was that a Finnish court, faced with the issue as
to when Finnish proceedings become definitively pending for the purposes
of Article 21 and/or Article 22, would decide that they only become
definitively pending when they are served on the defendant – in other
words, that there is no material difference for these purposes between
the position in Finland and that which obtains in this country. Service of
the Finnish Action had not yet been effected at the time of the hearing of
the Defendants’ applications, and so on this basis that Action was not yet
definitively pending.
58. However, FSU and AKT contended that Finnish proceedings become
definitively pending on the date on which a plaintiff’s written application
for a summons was lodged with the court, and that a Finnish court would
so decide. It will be recalled that the written application (or plaint) in the
Finnish Action was lodged with the Labour Court at 1500 hours on 5th
December 2001, 14 days before the amended Claim Form in the March
Action was served on FSU and AKT. …
60. The evidence included translated extracts from the Finnish Code of
Judicial Procedure (”the Finnish Code”), and a translation of the Finnish
Act respecting the Labour Court (”the Labour Court Act”) – the application
summons in the Finnish Action was addressed to the Labour Court.
61. Chapter 5 of the Finnish Code contains provisions relating to the
initiation and preparation of a civil case. Section 1 of chapter 5 provides
that:
”(1)A civil case shall be initiated by a written application for a summons,
delivered to the registry of a district court. (2) The case shall become
pending and its preparation shall begin upon the arrival of the application
to the registry.”
Section 2(1) provides that:
”An application for a summons shall indicate:
1. the specified claim of the plaintiff;
2. the circumstances on which the claim is based, in detail;
3. as far as possible, the evidence that the plaintiff intends to present and
what he/she intends to prove with each piece of evidence;
4. the claim for the compensation of legal costs, if the plaintiff deems this
necessary; and
5. the basis for the jurisdiction of the court, unless jurisdiction can be
inferred from the application for a summons or the documents enclosed to
it.”
62. Sections 15 to 18 of the Labour Court Act (as supplemented by
section 26) deal with the institution of proceedings before the Finnish
Labour Court. Section 15(1) provides that proceedings are to be instituted
by presentation of a written application to the Court. This is then reviewed
by the Chairman or the Court Clerk (sections 16 and 26(2). […]
63. Mr Timo Esko, …was the Finnish law expert for FSU and AKT. In his
First Report, dated 4th February 2002, he stated that ”proceedings in
Finland are seized when the Application of Summons is issued/registered
at the Court” (citing Chapter 5, Section 1 of the Procedure Code in
Support) […]
64. Mr. Petri Taivalkoski, …was the Finnish law expert for the Claimants.
…exhibited a 1996 article (”the Möller Article”) by Judge Gustaf Möller, a
Justice of the Supreme Court of Finland and one of the co-authors of the
Jenard-Möller Report on the Lugano Convention. Mr Taivalkovski stated,
and I accept, that Judge Möller is considered to be a leading authority
in Finland with respect to matters relating to the Brussels and Lugano
Conventions. The Möller Article, which I shall consider in more detail
below, concludes as follows:
”... it is submitted that Finnish and Swedish Courts for the purposes of
the Conventions – despite of the provisions on seisin in the Codes of
Judicial Procedure in force in those countries – should be regarded seised
when the document initiating the proceedings has been served on the
defendant.” […]
67. I turn next to consider the Möller Article. It must be rare indeed for
an English court having to decide, or form a view on the strength of an
argument in relation to, an undecided question of foreign law, to have
available an article written by a Judge of the Supreme Court of the foreign
state in question on the very question in issue, particularly when that
Judge is considered to be a leading authority in that country on the area
of law in which the question arises. Judge Möller was a co-author of the
Jenard-Möller Report on the Lugano Convention. […]
70. …The Möller Article was published by Kluwer Law International in
1996 (page references below are to this publication). It is entitled ”The
date upon which a Finnish and a Swedish Court becomes seised for the
purposes of the European Judgment Conventions.” The title itself gives at
least partial recognition to a point much relied on by FSU and AKT, namely
that the rules regarding the commencement of proceedings and the date
upon which a court becomes seised, at least for domestic purposes, are
broadly similar in all Scandinavian countries. …
71. Judge Möller clearly had in mind the differences between the domestic
rules as to seisure and pendency in the six original Contracting States,
where at least as a general rule an action does not become pending
before service (which may include deemed service as for example in the
Netherlands, where a defendant resident abroad is treated as served
when a copy of the proceedings is served on the officier van justitie for
the issuing court), and the rule as set out in chapter 5 section 1(2) of
the Finnish Code, and the similar rule in the Swedish Code of Judicial
Procedure, to the effect that a Court is considered to be seised when the
document initiating the proceedings is lodged with the Court (page 221).
[…]
73. Judge Möller points out that the current Finnish and Swedish
procedural rules have (as from 1st December 1993 in the case of Finland
and from 1948 in the case of Sweden) replaced rules under which a
court only became seised upon service on the defendant. … One of
the criticisms made on behalf of FSU and AKT was that Judge Möller
had failed to appreciate or deal with the significance of the point that
in Finland and Sweden, service was now effected by the Court. To the
contrary, he was clearly well aware of the changes in the rules as to
service, and the fact that this underlay the change in the domestic rules
as to seisure. It is inconceivable that he failed to take this into account in
reaching he conclusions that he did.
74. Moreover, it was the Möller Article which provided FSU and AKT with
what I regarded as their best point, for it was Judge Möller who pointed
out (at page 224) that these Finnish and Swedish provisions
”do not only mean – as the German term ‘Anhangigkeit’ – that time in
certain cases ceases to run for the purpose of limitation periods etc., but
also that jurisdiction is removed from a domestic court later seised,”
Thus the consequence that flows under the Convention where another
Court is first seised within the meaning of Article 21, follows in Finnish
and Swedish domestic law when the document initiating the proceedings
is lodged with the court.
81. Judge Möller expresses his overall conclusion as follows (at pages
232-233):
”With regard to what has been said above, it is submitted that Finnish
and Swedish courts for the purposes of the Conventions – despite of the
provisions on seisin in the Codes of Judicial Procedure in force in those
countries – should be regarded seized when the document initiating the
proceedings has been served on the defendant.”.
I should also set out the footnote (27) to this conclusion, which is in the
following terms:
”Goransson submits as regards Swedish law that such an understanding
would not be in contradiction with the judgment of the European Court
in Zelger v. Salinitri but doubts whether such an interpretation would be
accepted by the Swedish courts.
According to the Danish law on civil procedure... Section 348 a court
becomes seised when the document initiating the proceedings is lodged
with the court. In spite of that Fogh, Ugeskrift for Retsvesen 1989 B p.389
submits that a Danish court is to be considered definitively seized for the
purposes of Article 21 of the Brussels Convention when the document
initiating the proceedings has been served on the defendant. This opinion
has, however, not been accepted by the Danish Supreme Court in a case
decided in 1992....”
I do not think that Judge Möller’s conclusion is rendered any less
persuasive by Mr Goransson’s doubts as to whether a Swedish Court
would accept the ”service date” solution. I note that Mr Goransson’s text
pre-dates the reports of both the Dresser and Sargasso decisions.
82. I was provided with a translation of the 1992 decision of the Danish
Supreme Court to which Judge Möller refers. The case is called Polish
Shipping Company v. Partrederiet for ”Elbe” and ”Weser”. … The report
does not address the issue of when proceedings became definitively
pending in either jurisdiction. As indicated above, the decision to stay the
Danish proceedings pursuant to Article 22 is inconsistent with a conclusion
that the Danish courts were the courts first seised. The case affords no, or
certainly no reasoned, support for the proposition that a Danish court is
seised of proceedings for the purposes of Article 21 upon lodgment of the
proceedings with the court.
83. For my part, I find Judge Möller’s reasoning compelling, and the
criticisms of it unwarranted. In the light in particular of the Möller Article,
I have concluded that on the material available, the Claimants have a
much better argument on this issue than FSU and AKT. They accordingly
have a good arguable case that as a matter of Finnish law, a Finnish
court is seized of an action for the purposes of Article 21 (and Article 22)
upon service of proceedings on the defendant, and not before, and that
a Finnish court (whether the Finnish Labour Court, or any other Finnish
court) would so conclude.
84. It follows that the Claimants have a good arguable case that the
English Court was first seized of the March Action against both FSU and
AKT, since proceedings in the March Action were served on FSU and AKT
on 19th December 2001, and proceedings in the Finnish Action had not
been served when the Defendants’ applications were heard.
85. In the light of this conclusion, the issue as to whether the Finnish
Action is between the same parties and involves the same cause(s) of
action as the March Action, does not arise for decision. I shall, however,
express my conclusions on the point briefly below. […]
Is the Finnish Action between the same parties, and does it involve the
same cause of action, as the March Action?
86. The authorities have established the following propositions:
(1) For the purposes of Article 21, where there are proceedings in
different jurisdictions involving two or more claimants, or defendants, it
may be necessary to examine the position as between individual pairs
of claimant and defendant, and ask which court became first seised of
proceedings between that pair of parties. Thus for example if a court
only becomes seised for these purposes upon service, where different
defendants are served at different times it may be necessary to consider,
in respect of each defendant, which court was first seised, and to apply
Article 21 accordingly. Whilst this may lead to some fragmentation of
proceedings, Article 22 may provide the means to avoid this consequence
of the proper application of Article 21. See: the decision of the European
Court of Justice in The Maciej Rataj (cited above); Fox v. Taher [1997]
I.L.Pr. 441, per Brooke LJ, obiter; Glencore International AG. v. Metro
Trading International Inc (also cited above), per Moore-Bick J. at pages
636-637;
(2) Proceedings involve the same cause of action for the purposes of
Article 21 if they have the same cause and the same object. They have
the same cause if the same facts and the same rule of law form the basis
of each set of proceedings. They have the same object if they have the
same end in view. They can have the same cause and the same object
even if the remedies sought in the different sets of proceedings are
different. …
87. I have already summarised the Claimants’ claims against FSU and
AKT in the March Action (the claims against them in the November Action
are identical). The application summons in the Finnish Action names both
FSU and AKT as Plaintiffs. The only Respondent is N., but it was accepted
on behalf of the Claimants that N. was sued as agent on behalf of Owners,
who are for these purposes to be treated as if they were parties to that
Action. Two claims are advanced in the Finnish Action. In Claim (1), FSU
seeks confirmation that the agreement referred to therein, which I take
from the description in annex 1 to be a reference to both the Settlement
Agreement and the CBA, is a collective agreement realised through
lawful industrial action in Finland, and that N. and Owners are obliged as
employers to comply with it. In Claim (2), FSU and AKT seek confirmation
that a Finnish court is competent to examine any civil dispute concerning
claims for damages and other claims addressed to FSU and AKT arising
from the alleged illegality of the industrial action and based on the alleged
invalidity of the collective agreement. The brief Grounds relied on in
support of both claims refer to the industrial action, the conclusion of
the agreement(s), the commencement of the March Action against ITF
and the allegation therein that the industrial action was unlawful, and the
application to join FSU and AKT as additional defendants to the March
Action, for hearing on 7th December 2001. …
90. The principal issue that was argued before me in this connection was
whether AKT was to be treated for the purposes of Article 21 as being in
effect a party to Claim (1), for if it was not, it could not invoke Article 21,
even if FSU could.
…. It seems to me that in the light of the principles summarised above,
it must follow that the Finnish Action does not, as between the Claimants
or any of them and AKT, involve the same cause of action as the March
Action, and that therefore even if I had decided the date of seizure issue
in favour of FSU and AKT, that decision would only have availed FSU.
Do the disputes between the Claimants and FSU and/or AKT fall within a
jurisdiction clause to which Article 17 of the Brussels Convention applies?
92. In Powell Duffryn v. Petreit [1992] ECR I-1745, the European Court
held, among other things, that where an issue arose as to whether
proceedings fell within Article 17 of the Brussels Convention,
”....it is for the national court to interpret the clause conferring jurisdiction
invoked before it in order to determine which disputes fall within its
scope” (para. 37 of the Judgment).
93. The submissions of FSU and AKT on the Article 17 point can be
summarised as follows:
(1) The Settlement Agreement and the CBA are both governed by Finnish
law;
(2) These 2 Agreements are, as a matter of Finnish Law, to be read
together as a single agreement;
(3) Clause 28 of the CBA provides (among other things) that the forum
for
”All disputes arising from this agreement”
is to be the District Court of Helsinki or the Finnish Labour Court. Because
the Agreements are to be read together, this clause is applicable to
disputes arising from the Settlement Agreement, just as it is applicable to
disputes arising from the CBA;
(4) The validity of the Settlement Agreement is expressly put in issue
by the Claimants. It follows from the above that the dispute as to the
validity of the Settlement Agreement falls within the scope of clause 28 of
the CBA, as also do the disputed claims arising out of the alleged wrongs
constituted by the industrial action, which were settled by the Settlement
Agreement;
(5) Although the Claimants have not in terms put in issue the validity
of the CBA, they have done so by necessary implication, by challenging
the validity of the Settlement Agreement. Thus even if the Settlement
Agreement and the CBA do not fall to be read and construed as a single
agreement, the disputes to which the Claimants’ claims give rise fall
within the scope of clause 28 of the CBA;
(6) Alternatively, clause 3 of the Settlement Agreement, which provides
that:
”This agreement is governed by the Finnish Legislation”,
represents an implicit choice of the Finnish Labour Court as the Court to
try any disputes arising out of the Settlement Agreement (this is not one
of the grounds mentioned in FSU and AKT’s application notices, but it was
advanced at the hearing without objection, albeit subject to the gibe that
it was an afterthought);
(7) It is not appropriate at this stage for the court to investigate questions
of duress, in particular whether the Claimants’ signature of the Settlement
Agreement and the CBA was procured by duress. It is sufficient, for
present purposes, that the formal requirements of Article 17 were
satisfied, as FSU and AKT allege that they were;
(8) In any event, the Claimants have not made out a good arguable
case that the industrial action was unlawful as a matter of Finnish law,
and therefore that the Agreements were procured by unlawful economic
pressure such as to be capable of constituting duress.
Before considering these arguments and the Claimants’ responses
thereto, I must refer to the Settlement Agreement and the CBA in a little
more detail, and set out the terms of principal relevance.
94. The Settlement Agreement is a single page document, dated Helsinki
13th March 2001, prepared by FSU in typescript, but amended in
manuscript as described below. As already indicated, it is expressed to
be:
”Between the... FSU and the N. Shipping UK Ltd (Company) who is the
Owner/Agent of the Owner of m/v…”.
It was signed by Mr K. on behalf of N., and by Mr Zitting on behalf of FSU.
It was accepted by the Claimants that N. entered into the Settlement
Agreement as agent for and on behalf of the other Claimants, so that it
took effect (subject to their allegation of duress) as a agreement between
the FSU and all six Claimants.
95. The Settlement Agreement refers to the inspection of the vessels, the
discovery that they ”were not covered by acceptable collective bargaining
agreements”, and the consequent boycott by the FSU, supported by the
AKT. It then continues:
”To settle the dispute the parties now agree as follows:
1. Collective Bargaining Agreement covering all the vessels shall be
undersigned between the Company and the FSU.
2. This agreement is full and final and solves all present disputes
between all parties involved. No party shall start in Finland or elsewhere
any actions, legal or otherwise against other parties. Besides that all
parties agree to withdraw all legal or other actions started before the
undersigning of this settlement agreement.
3. This agreement is governed by the Finnish legislation.
4. The parties accept this agreement and commit themselves to fulfil all
its terms and conditions without any exceptions.”
The last 3 words of clause, as typed, read ”the Finnish legislation”: these
were deleted, and ”English law” substituted in manuscript, by Mr K., but
”English law” was in turn deleted, and the original wording reinstated
in manuscript, allegedly when FSU insisted that the terms were non-
negotiable. The CBA (with 3 annexes) was, and was stated to be, an
attachment to the Settlement Agreement.
96. The CBA, also dated 13th March 2001 and stated to be effective from
that date. It too was also expressed to be an agreement between N.,
described in clause 1 as ”the Owner/Agent of the Owner of the Ships”,
and FSU. It was also signed by Mr K. on behalf of N., and Mr Zitting on
behalf of FSU. It sets out standard terms and conditions of employment
for seafarers serving on the four vessels, …
97. Clause 28 of the CBA, which is headed ”Breach of Agreement,
provides, in full, as follows:
”If the Company breaches the terms of this Agreement the FSU, for
itself or acting on behalf of the Seafarers, and/or any Seafarer shall be
entitled to take such measures against the Company as may be deemed
necessary to obtain redress.
All disputes arising from this agreement or from the individual
Employment Contracts shall be governed and construed in accordance
with the laws of Finland. The forum for such disputes is the District Court
of Helsinki or the Finnish Labour Court”.
As in the case of clause 3 of the Settlement Agreement, this clause was
amended in manuscript by Mr K., by the deletion of the typed reference
to the laws of Finland, and the District Court of Helsinki or the Finnish
Labour Court, and the substitution of respectively, ”England” and ”High
Court in England”, but allegedly on FSU’s insistence, the original wording
was then reinstated, in manuscript.
98. Both Agreements are expressed to be governed by Finnish law: I take
the reference in the Settlement Agreement to ”The Finnish legislation”
to be a choice of Finnish law as the proper law of that Agreement.
Accordingly, both Agreements are to be construed in accordance with
Finnish law, and I must have regard to Finnish principles of construction,
not only for the purpose of construing the relevant provisions of each
Agreement, but also for the purpose of considering whether the two
Agreements are to be viewed as one, as FSU and AKT submitted that they
should be.
99. The Finnish principles of contractual construction were common
ground: Mr Esko stated in his First Report (para 26) that:
”Under Finnish law, in order to construe a contract, it is necessary to
establish the intention of the parties based on the wording of the contract
and also to take into account what has been said and done during the
negotiations and if relevant what has been the previous practice between
the parties. If these considerations do not lead to adequate construction,
then a broader approach of construction is resorted to and, in accordance
with established legal principles, one aims at a ”generally acceptable
result”,
and Mr Taivalkoski agreed. The main difference between these principles
and those applicable under English law is that under Finnish law it is both
permissible and necessary to take contractual negotiations into account in
determining the intention of the parties. …
102. On the assumption that the two Agreements fall to be construed
as separate Agreements, the next issue is as to the proper construction
of clause 28 of the CBA, and whether the Claimants have made out a
good arguable case that none of their claims fall within the scope thereof.
Clause 28 provides for the reference of
”All disputes arising from this agreement or from the individual
Employment Contracts”
[…]
104. At all events, the Claimants have in my judgment at least a good
arguable case that clause 28 of the CBA does not apply to the claims
advanced by them in the March action, on the grounds that such claims
do not arise from the CBA: on the material available they have much the
better of the argument on this point. […]
106. There is of course a clear distinction between a choice of law, and
a choice of jurisdiction, though the two may be contained in a single
clause, as in clause 28 of the CBA. Clause 3 of the Settlement Agreement
constitutes a choice of law, not a choice of jurisdiction. The Settlement
Agreement is in any event not a collective bargaining agreement: it is
an Agreement which provides for the parties to enter into a (separate)
CBA, and is expressed to be full and final settlement of ”all present
disputes”. It addresses the past, and provides that the future is to be
addressed in a separate agreement. Thus I cannot see any sound basis
for the contention of FSU and AKT that clause 3 constitutes an implicit
agreement for the reference of disputes arising from the Settlement
Agreement to the Finnish Labour Court (or Finnish courts generally).
But it is sufficient for present purposes that I have concluded that the
Claimants on the material available have much the better of the argument
on the point, and therefore a good arguable case that the parties have not
by the Settlement Agreement agreed, either expressly or impliedly, that
the Finnish Labour Court specifically, or Finnish courts generally, are to
have jurisdiction to settle disputed claims such as those advanced by the
Claimants in the March Action. […]
108. Even if, contrary to the foregoing, I had concluded that the
Claimants did not have a good arguable case that there was no applicable
Finnish jurisdiction clause in the Settlement Agreement or the CBA, that
would not have availed AKT, which was not a party to either Agreement.
CPR Rule 6.19
109. CPR Rule 6.19 sets out the circumstances in which a claim form may
be served on a defendant out of the jurisdiction without the permission of
the court. […]
The reference to the 1982 Act is to the Civil Jurisdiction and Judgments
Act 1982, and ”Convention territory” means the territory of any
Contracting State to which the Brussels or Lugano Conventions apply. …
113. Section III of CPR Part 6, which contains the provisions relating
to service out of the jurisdiction and which includes CPR Rule 6.19, is
supplemented by a Practice Direction, paragraph 1.1 of which is in the
same form now as it was in December 2001. […]
115. It is clear that the editors of Civil Procedure, and the draftsman
of the Practice Direction, interpreted Rule 6.19(1)(a) in its unamended
form as containing the requirement that there should be no relevant
proceedings pending in the courts of any other part of the United Kingdom
or any other Convention territory. The question is, whether they were
right to do so.
116. In my judgment, they were. The provisions of Rule 6.19 must be
interpreted with reference to their legislative background and purpose.
They were clearly designed to give effect to the provisions of the Brussels
and Lugano Conventions.
117. I therefore conclude that both the Note and the Practice Direction
accurately reflect the unamended Rule 6.19(1) as it should properly be
interpreted, and therefore that permission was not required to serve the
amended Claim Form in the March Action on FSU and AKT in Finland. If
I am right in this conclusion, it follows that, strictly speaking, the March
2002 Amendment to Rule 6.19(1)(a) was unnecessary. […]
Conclusion in relation to March Action
119. It follows from my conclusions as set out above, that the applications
of FSU and AKT in respect of the March Action must be dismissed.
The November Action
Is the November Action an abuse of process?
120. The submissions of ITF in support its contention that the November
Action was an abuse of process were supported by FSU and AKT. They can
be summarised as follows:-
(1) It is prima facie vexatious and therefore abusive to issue two sets of
proceedings against the same defendant relating to the same dispute and
seeking effectively the same relief;
(2) The Claimants’ obvious and admitted desire to prevent FSU and AKT
from bringing proceedings against them in Finland before permission had
been obtained for and service had been effected of the amended Claim
Form in the March Action, and thereby obtaining chronological priority for
such Finnish proceedings for the purposes of Article 21 of the Brussels
Convention, provided no good reason for naming ITF as a defendant in
the November Action. On the contrary, the European Court of Justice has
emphasised that Article 6.1, which provides an exception to the general
principle laid down in Article 2 of the Brussels Convention that jurisdiction
is vested in the courts of the State of the defendant’s domicile, is not to
be used to allow a claim to be made against a number of defendants with
the sole object of ousting the jurisdiction of the courts of the State where
one of them is domiciled – see Kalfelis v Schroeder [1988] ECR 5565 at
para 9, and Canada Trust v. Stolzenberg (No 2) [1998] 1 WLR 547;
(3) There is no genuine claim to be made against ITF in the November
Action that is not already the subject of the March Action. ITF was
included as a Defendant in the November Action solely to provide a
jurisdictional peg upon which to hang the claims therein against FSU and
AKT, in purported reliance on Article 6.1. Such procedural manipulation
subverts the Brussels Convention; […]
(5) To allow the Claimants to pursue the November Action against ITF
in preference to the March Action, or to consolidate the two sets of
proceedings against ITF, and thereby avoid the vice of allowing two
separate actions involving the same parties and claims to proceed, would
effectively bypass the requirements of CPR Rule 38.7…;
132. The Defendants relied upon what was said in Knauf about subversion
of the Brussels Convention, and contended that the Claimants were by
the November Action seeking to subvert the rule of strict chronological
precedence laid down by Article 21, by attempting through the November
Action to forestall any attempt by the Finnish Unions to gain jurisdictional
priority for the Finnish Courts in respect of the disputes between them
and the Claimants. They submitted that the Claimants’ obvious desire to
have their disputes with all three Unions tried in one jurisdiction, England,
and to avoid the risk of bifurcation of proceedings and irreconcilable
judgments, did not afford good reason for endorsing a step which might
have affected chronological precedence under Article 21. […]
133. I do not see how the issue, in accordance with the CPR, of English
proceedings in respect of which the English Court would, subject to Article
21, have Brussels Convention jurisdiction over all defendants sued, and
the service of those proceedings through the normal channels, with the
object of securing chronological precedence for those proceedings under
Article 21, can be said to subvert Article 21 or any other provision of the
Brussels Convention, even if those proceedings have been commenced
and served because it is feared that the proposed joinder and service
of the foreign defendants to existing proceedings against an English
defendant may be pre-empted by the foreign defendants bringing
proceedings in their own jurisdiction. This is a case in which both the
Claimants, and the Finnish Unions, have attempted to obtain priority for
their own preferred jurisdiction: …I agree that it is not appropriate to
approach the issues raised by the Defendants’ applications with any a
priori view as to which is the more appropriate jurisdiction. […]
134. I do not understand the statement of the European Court of Justice
at para. 9 of its judgment in Kalfelis v Schroeder, to the effect that a
plaintiff should not be allowed to invoke Article 6.1 to make a claim
against a number of defendants with the sole object of ousting the
jurisdiction of the courts of the State where one of them is domiciled,
as being directed at a case such as the present one, where there is an
obvious and admitted connection between the claims made against each
of the Defendants in the November Action. That action is not an abuse of
Article 6.1. I agree with the submission of the Claimants that they were
employing Article 6.1 in accordance with its fundamental rationale, to
avoid the risk of irreconcilable judgments. […]
136. Dealing first with the point on CPR Rule 38.7, if the Claimants
had discontinued the March Action against ITF before commencing the
November Action, they would have needed the permission of the court
to begin the November Action. They chose not to proceed in that way.
However I agree with the Defendants that I should have regard, as I do,
to the conditions that would have attached to that alternative course
of action in considering whether the course adopted was an abuse of
process. […]
138. …I do not think that ITF has been harassed, whether unjustly or at
all. ITF has not suggested that it has been in any way prejudiced by the
course adopted by the Claimants. Had it not decided to apply to strike out
the November proceedings, the added impact of it of being a Defendant in
two actions, rather than one, is likely to have been minimal. It would be
the other Defendants, and not ITF, that would benefit from ITF’s strike-out
application succeeding. […]
140. It follows that ITF’s application must be dismissed, and that FSU
and AKT’s challenge to the November Action based on the alleged
inapplicability or misuse of Article 6.1 of the Brussels Convention must
fail.
Other issues arising on the application of FSU and AKT in the November
Action
141. As mentioned above, my decisions on the issues arising on the
application of FSU and AKT in the March Action are also applicable in
relation to the November Action. The consequence of this is that their
application in the November Action also fails and must be dismissed. …
Article 22
143. For completeness I should add that in their application notices in
both Actions, and in their skeleton argument, FSU and AKT also invoked
Article 22 of the Brussels Convention
144. In their skeleton argument, FSU and AKT submitted that if, contrary
to their primary contention, the entirety of the Finnish Action was not
replicated as to parties or causes of action by the March Action, the
Finnish Action was nonetheless a related action in respect of which
the Finnish Courts were first seised for the purposes of Article 22, and
that the English Court therefore had a discretion to decline jurisdiction,
which it should exercise because of the practical convenience of litigating
all claims in Finland alone. This argument fails on the facts, not only
because, as I have found, the Claimants have a good arguable case that
Finnish Courts are not seised of an action for the purposes of Article
21 until service, but also because, as the Claimants pointed out, of all
the extant proceedings it is on any view the English Court which was
first seised of a related action, namely the March Action as against ITF.
Accordingly the English Court has no discretion to exercise under Article
22. Whether the Finnish Labour Court has a discretion under Article 22,
and if so, how that discretion should be exercised, may be matters that
that Court will be invited to consider hereafter, but they are not matters
on which it would be appropriate for me to make any further comment.
Consequential Orders
145. I shall hear argument on the consequences that should follow from
the dismissal of the Defendants’ applications, in relation to directions for
trial and the impact, if any, of my decisions on the date (21st October
2002) presently fixed for the trial of the March Action as between
the Claimants and ITF, and in relation to what should become of the
November Action. (…)“