Neutral Citation Number: [2017] EWCA Civ 113 1 
  Case No: A3/2017/019 0 
IN THE COURT OF APPEAL (CIVIL DIVISION)  
ON APPEAL FROM  
THE HIGH COURT OF JUSTICE  
QUEEN'S BENCH DIVISION  
COMMERCIAL COURT  
MR JUSTICE ANDREW BAKE R 
  Royal Courts of Justice  
Strand, London, WC2A 2L L 
  31/07/201 7 
B e f o r e :  
LORD JUSTICE LONGMORE  
LORD JUSTICE BEATSON  
and 
LORD JUSTICE DAVID RICHARD S 
____________________  
Between:  
 
 BAT Caribbean S.A. & Ors  Appellant  
 - and -  
 PHP Tobacco Carib SARL & Ors  Respondents  
____________________  
Charles Dougherty QC, Stewart Chirnside (instructed by Penningtons Manches 
LLP) for the Appellant  
John Russell QC, Tom Bird (instructed by Hill Dickinson LLP) for the 
Respondent  
Hearing date: 18 July 2017   
____________________  
HTML VERSION OF JUDGMENT
 
____________________  
Crown Copyright ©  
Lord Justice Beatson :   
I. Overview:  
1. This appeal is against th e order dated 21 December 2016 of Andrew Baker J 
that arrangements between the parties made in August 2016 do not constitute 
an exclusive jurisdiction agreement in favour of the English Court within the 
meaning of Regulation (EU) No 1215/2012 on jurisdicti on and enforcement of 
judgments in civil and commercial matters ("the Brussels Regulation Recast").  
2. The appellant, BAT Caribbean SA ("BATC"), is a Panamanian company in 
the British American Tobacco Group. It is the defendant in a claim issued on 3 
July 2015 by the first respondent, PHP Tobacco Carib SARL ("PHP") in the 
Commercial Court under a distribution agreement ("the Distribution 
Agreement") conferring jurisdiction on the English courts, for which the trial 
has been fixed for March 2018. On 5 August 2016, BATC made a without 
notice application to join PHP Trading S.A. ("PHP Trading") and SODIPAM 
SARL ("SODIPAM"), companies related to PHP, and respectively based in 
Guadeloupe and in Martinique to the proceedin gs so as to pursue against them 
a Part 20 claim ("the Additional Claim"). In his order, the judge gave 
permission for them to be joined as third and fourth parties to the proceedings, 
but stayed BATC's Part 20 claim because, on 12 October 2016, the Joint 
Commercial Court of Fort -de-France in Martinique had become seised of 
proceedings brought by them against BATC. Guadeloupe and Martinique are 
overseas territories of France and thus, for the purposes of EU law and the 
Brussels Regulation Recast, are to be c onsidered as part of France.  
3. The sole issue before the court is whether an agreement reached between 
BATC and PHP, PHP Trading and SODIPAM in correspondence in August 
2016 is an exclusive jurisdiction agreement in favour of the English court. If it 
is, th en, as a result of Article 31(2) of the Brussels Regulation Recast, the 
Additional Claim should not have been stayed. This is because, under Article 
25, where parties have agreed that the courts of a Member State of the 
European Union are to have jurisdict ion over any disputes, the designated 
court shall have exclusive jurisdiction unless the parties have agreed 
otherwise. In such a case, Article 31(2) provides that, where the designated 
court is seised, the courts of other Member States shall, even if they  were first 
seised, stay any proceedings until such time as the designated court declares 
that it has no jurisdiction under the agreement. Absent an exclusive 
jurisdiction agreement, however, Article 29 provides that any court other than 
the court first se ised shall stay its proceedings until such time as jurisdiction of 
the court first seised is established. In the case before us, the Joint Commercial 
Court of Fort -de-France in Martinique was the court first seised. I have set out 
the relevant provisions o f the Brussels Regulation Recast in an Appendix to 
this judgment.  
4. The remainder of this judgment is organised as follows. Part II provides a 
summary of the factual and procedural background. Part III summarises the 
decision of the judge on the matters mat erial to the appeal. Part IV contains 
my analysis of the law and a summary of the submissions made by the parties. 
It also gives the reasons for my overall conclusion. I have concluded that the 
arrangements between the parties made in August 2016 do not co nstitute an 
exclusive jurisdiction agreement in favour of the English Court. My reasons 
are substantially the same as those given by the judge. Accordingly, I would 
dismiss the appeal.  
II. The factual and procedural background:  
5. PHP is a French company bas ed in Guadeloupe which was engaged for 50 
years or so in business as a distributor of cigarettes and other tobacco products 
of British American Tobacco in territories including Guadeloupe and 
Martinique. The final contract was the Distribution Agreement be tween PHP 
and BATC to distribute such products for five years between 1 January 2010 
and 31 December 2014. PHP subcontracted the importation and distribution of 
BAT products under the Distribution Agreement to PHP Trading in 
Guadeloupe and SODIPAM in Marti nique. Carisma Marketing Services Ltd 
("Carisma"), a company in the BAT Group based in Guadeloupe, was 
involved in the marketing of BAT products. The parties failed to agree to 
renew the Distribution Agreement, and the arrangement came to an end on 31 
Dece mber 2014.  
6. On 3 July 2015, PHP issued the proceedings in the English High Court against 
BATC to which I have referred. It claimed approximately €6.5 million by way 
of distributor's margin under clause 6.2.1 of the Distribution Agreement, less 
credit of €1.2 million for outstanding invoices. On 28 October 2015, BATC 
lodged its defence and a counterclaim on those invoices. BATC also made a 
counterclaim of around €8.5 million on the basis of a different, oral agreement 
under which it was alleged that PHP woul d procure that PHP Trading and 
SODIPAM would co -operate in bringing claims for the recovery of VAT in 
Guadeloupe and Martinique on imports of BATC products under the 
Distribution Agreement ("the VAT Agreement"). BATC claimed that 
representatives of PHP and  Carisma agreed to the VAT Agreement at a 
meeting in September 2009. PHP denied that any binding contract was 
concluded in relation to VAT recoveries, but also alleged that, if there was any 
contract, it had been made between PHP Trading and SODIPAM on the  one 
hand and Carisma on the other, rather than between PHP and BATC.  
7. In view of the nature of the dispute as to what was agreed in the exchanges of 
correspondence between Penningtons Manches LLP, BATC's solicitors, and 
Hill Dickinson LLP, PHP's solicitor s, it is necessary to refer to them in some 
detail.  
8. The relevant correspondence starts with an email dated 10 June 2016 from 
Penningtons Manches to Hill Dickinson. In this, Penningtons Manches 
informed Hill Dickinson that BATC intended to apply to join PH P Trading 
and SODIPAM as parties to its counterclaim based on the VAT Agreement. 
Hill Dickinson replied on 13 June asking on what basis BATC considered the 
English court had jurisdiction to hear claims against PHP Trading and 
SODIPAM.  
9. Penningtons Manches' s next email, dated 13 June, did not answer the question 
about the basis of the jurisdiction claimed for the proposed Additional Claim. 
Penningtons Manches stated that they thought it was "clearly in the best 
interests of all parties to have all the releva nt disputes resolved together, rather 
than having piecemeal related litigation in separate jurisdictions and thereby 
substantially increasing costs". They reiterated this (including the reference to 
litigating in separate jurisdictions) in an email dated 2 9 June. Hill Dickinson 
replied stating they were still awaiting a response to their question about the 
basis of the English court's jurisdiction to hear these claims.  
10. Jumping back in the chronology, on 17 June 2016 there was a CMC before 
Blair J. Notwiths tanding the recent exchanges about the Part 20 claims against 
PHP Trading and SODIPAM, neither party mentioned them at the CMC. The 
only Part 20 claim mentioned was BATC's existing counterclaim against PHP. 
Blair J gave full directions, including that a tw elve-day trial be fixed for not 
before June 2017.  
11. It was not until 1 July 2016 that Penningtons Manches responded to Hill 
Dickinson's question about the basis upon which BATC considered the 
English court has jurisdiction to hear the proposed Additional Cl aim against 
PHP Trading and SODIPAM. As well as explaining why they considered there 
was jurisdiction, they stated if Hill Dickinson did not agree to the joinder of 
PHP Trading and SODIPAM, BATC would bring a contested joinder 
application in England or bri ng proceedings in France. On 5 July, Hill 
Dickinson replied giving the reasons they did not consider that the English 
court has jurisdiction, and stating that any application to join PHP Trading and 
SODIPAM would be strongly resisted.  
12. On 5 August 2016 BAT C issued a without notice application for the joinder of 
PHP Trading and SODIPAM to its existing counterclaim against PHP, with a 
request that the application be dealt with on paper. It came before Knowles J 
who directed that, in the light of the implicati ons for the case between the 
existing parties, the CMC should be restored for a two -hour hearing on notice 
to PHP. In a letter dated 10 August 2016, Penningtons Manches sought to 
persuade Knowles J to deal with the question of joinder on paper and without 
notice. They did so on the ground that PHP Trading and SODIPAM would 
have the right to challenge jurisdiction if they were joined and then served 
with the proposed proceedings. Knowles J rejected their request, and the CMC 
directed by him was listed for 14  October 2016.  
13. In the light of Knowles J's directions, in a letter dated 17 August 2016, 
Penningtons Manches wrote to Hill Dickinson enclosing a copy of their 
application and informing Hill Dickinson of their exchanges with the court. 
The letter stated that the previous correspondence showed that it was clear that 
jurisdiction in relation to the proposed Additional Claim was the key issue, 
and that was a point that could only be taken by PHP Trading and SODIPAM 
once they had been joined  and served as parties. The letter also stated that:  
"an order permitting joinder could make it clear that an application to dispute 
the court's jurisdiction could be made within 28 days … is without prejudice to 
the right to vary or set aside the order, and … is without prejudice to the right 
of [PHP, PHP Trading or SODIPAM] to seek an order … for the claims 
against [PHP Trading and/or SODIPAM] to proceed separately".  
In the penultimate paragraph of the letter, Penningtons Manches asked if Hill 
Dickinson would be prepared to accept service within the jurisdiction on 
behalf of PHP Trading or SODIPAM " without prejudice  to their position on 
jurisdiction, so that all parties could be represented at the CMC and all issues 
(including jurisdiction)" could be deal t with at that hearing. The letter stated 
that this appeared to be the most sensible route, to avoid unnecessary further 
hearings and delay, and to be cost effective.  
14. Following further correspondence between the parties' solicitors on 19 August, 
in a lett er dated 22 August Hill Dickinson stated that they were only prepared 
to consider accepting service on behalf of SODIPAM and PHP Trading if two 
conditions were met. The condition relevant to this appeal is that:  
"[BATC] first acknowledges and confirms tha t such acceptance of service 
[was not and would not be treated by BATC] as a submission to the 
jurisdiction of the English courts and that SODIPAM and PHP Trading may 
still contest the Commercial Court's jurisdiction in precisely the same way as 
they would  have been able to do if [BATC] had, in fact, effected service 
abroad".  
Penningtons Manches gave the required confirmation in a letter dated 24 
August. They also asked Hill Dickinson to confirm inter alia that they were 
instructed to accept service of the  application on behalf of SODIPAM and 
PHP Trading and that:  
"in the event that SODIPAM and PHP Trading are joined to the proceedings 
and their jurisdictional challenge is unsuccessful following the proposed 
restored CMC, and subject to any appeal either c ompany might bring, [Hill 
Dickinson] are instructed to accept service of the claim form and particulars of 
Defendant's Counterclaim … dispensing with the requirement to effect service 
abroad in order to prevent any unnecessary delay to the Court timetable" .  
15. Hill Dickinson replied in a letter dated 25 August stating that they would 
confirm as follows:  
"(a) we are instructed to accept service of [BATC's] application for joinder on 
behalf of SODIPAM and PHP Trading … but only subject to the 
acknowledgment in  your letter of 24 August 2016 that such acceptance of 
service will not be treated as a submission to the jurisdiction of the English 
Courts and will not prejudice SODIPAM and PHP Trading's ability to contest 
jurisdiction and, in accordance with the wordin g of the reservation of rights in 
our letter of 22 August 2016, SODIPAM and PHP Trading may still validly 
contest the Commercial Court's jurisdiction in precisely the same way as they 
would have been able to do if [BATC] had, in fact, effected service abro ad; 
… 
(c) in the event that SODIPAM and PHP Trading are joined to the proceedings 
and their jurisdictional challenge is unsuccessful following the proposed 
CMC, and subject to any appeal either company might bring, we are instructed 
to accept service of th e claim form and particulars of Defendant's 
Counterclaim …"  
16. On the same day, Penningtons Manches wrote to the Manager of the 
Commercial Court (copied to Hill Dickinson) referring to Knowles J's 
directions and inter alia stating:  
"There is a consensus amon gst the parties regarding the practical advantages 
and costs savings of dispensing with the need for multiple hearings and 
ensuring that all parties are represented at the proposed restored CMC with all 
issues addressed, including any jurisdiction challeng e. Accordingly, Hill 
Dickinson LLP have confirmed their agreement to accepting service of the 
Application on behalf of the proposed Third and Fourth Parties, without 
prejudice to their ability to contest jurisdiction, with the proposed restored 
CMC to take  place from 3 October 2016 ..."  
17. The next development occurred on 13 October 2016. A witness statement of 
Toby Miller, a senior associate at Hill Dickinson with conduct of the matter, 
was served informing the court and BATC that on 12 October 2016 the Joint  
Commercial Court of Fort -de-France in Martinique had become seised of 
proceedings involving PHP Trading, SODIPAM and BATC. In essence, the 
proceedings issued in Martinique seek a declaration of non -liability on the part 
of PHP Trading and SODIPAM in respe ct of the VAT Agreement. It is 
common ground that the French proceedings mirror those in the proposed Part 
20 claims made by BATC against PHP Trading and SODIPAM, and that by 
reason of the relative timings, the Court of Fort -de-France was the first seised 
court for the purposes of Article 29 of the Brussels Regulation Recast.  
18. The CMC ordered by Knowles J that was originally listed for 14 October 2016 
had to be stood out due to lack of court time. It was relisted for 19 December 
2016 and came before Andrew Baker J on that day.  
III. The judgment below:  
19. Two of the three questions decided by Andrew Baker J at the CMC hearing on 
19 December 2016 do not arise before us. The first was that the English court 
has jurisdiction to determine the proposed Part 20 claim s of BATC against 
PHP Trading and SODIPAM under Article 8(2) of the Brussels Regulation 
Recast: [2016] EWHC 3377 (Comm) at [40] – [46]. The second was not to 
exercise his discretion to refuse joinder of PHP Trading and SODIPAM on the 
ground of delay notwit hstanding his finding that there was jurisdiction to hear 
the claims: see [2016] EWHC 3377 (Comm) at [67] – [73]. PHP Trading and 
SODIPAM did not seek permission to appeal against the decision to join them, 
and although granted permission by the judge to a ppeal against the decision 
that the English court has jurisdiction under Article 8(2), they did not pursue 
that.  
20. Accordingly, as stated at [3] above, the only question before us is whether the 
agreement reached between BATC and PHP, PHP Trading and SODIPAM in 
August 2016 is an exclusive jurisdiction agreement in favour of the English 
court, and whether the judge erred in finding that it was not and, therefore, 
staying the Additional Claims against them. Before summarisin g his decision 
on that, I note that he found that, although the timing of the commencement of 
the French proceedings in Martinique was a major last -minute development, 
he did not infer that PHP and its legal team had any motive to disrupt or were 
guilty of  any sharp practice: see [2016] EWHC 3377 (Comm) at [57].  
21. At [58] of his judgment, the judge summarised the agreement alleged by 
BATC as follows:  
"(1) If this court determined that it had jurisdiction to entertain the Part 20 
claim against PHP Trading an d SODIPAM, then "it would go on to hear the 
substantive additional claim" (which I take to mean determine it on the 
merits); and  
(2) the PHP companies "would not take any active steps to prevent it [i.e. this 
court] from doing so"."  
BATC relied on the ag reement in the letter dated 25 August 2016 by Hill 
Dickinson on behalf of PHP Trading and SODIPAM to accept service within 
the jurisdiction and the background to the agreement seen in the exchanges. It 
submitted that letter meant that PHP Trading and SODIP AM had agreed with 
BATC that, if at the CMC the court held that the English court had 
jurisdiction, subject to any appeal, that court would "go on to hear the 
substantive additional claim". As I have stated, under Article 25 of the 
Brussels Regulation Reca st, such a jurisdiction agreement gives the designated 
court jurisdiction notwithstanding Article 29 and any prior proceedings 
commenced elsewhere in breach of the agreement.  
22. The judge rejected BATC's submissions for several reasons. It is convenient to 
summarise his reasons under the four headings identified in Mr Dougherty 
QC's skeleton argument on behalf of BATC.  
23. No express or implied agreement: The judge held (at [59]) that the express 
terms of the agreement between BATC and PHP Trading and SODIPAM did  
not state that jurisdiction would be exclusively for the English courts. Such a 
conclusion was also not necessarily implicit in the terms of the agreement, 
which were explicable and effective without reference to any restriction on the 
right of PHP Tradin g and SODIPAM to commence proceedings elsewhere if 
they could otherwise do so. This was simply not something that PHP Trading 
and SODIPAM were asked to do by BATC.  
24. Commercial purpose : The judge (at [60] – [61]) rejected BATC's submission 
that the agreemen t would have no commercial purpose if it did not provide for 
the exclusive jurisdiction of the English courts. He stated that the purpose of 
the agreement was to avoid the need for multiple hearings in the English High 
Court, and that purpose was achieved by the streamlining of the interlocutory 
process to a single hearing. The process agreed upon led to "an efficiency in 
court time and costs for the parties". BATC also obtained a conditional benefit 
in that if the court in Martinique does not have or decli nes jurisdiction, the 
jurisdiction of the English court has already been established.  
25. The agreement did not purport to guarantee that English Court would be first 
seised : The judge stated (at [62]) that there were at least three possible 
jurisdictions to hear the Additional Claim: England, France and Panama. The 
solicitors' correspondence simply did not address questions of lis pendens . 
There was nothing in what BATC proposed or in the terms upon which the 
proposal was accepted and finalised to signal that  it was any purpose of the 
proposal to engineer or guarantee that the English court would be first seised.  
26. The agreement to accept service : The strand of BATC's submissions which the 
judge stated (at [63]) he initially found more troubling was that the pa rties had 
agreed that Hill Dickinson would accept service on behalf of PHP Trading and 
SODIPAM if joinder was allowed, and such acceptance was inconsistent with 
any possibility of a stay. Accordingly, the agreement must have been to the 
effect that the cou rt would not stay the claim. BATC argued that acceptance 
was inconsistent with a stay because if the case is one in which a stay is 
mandatory under Article 29, there ought to be an instant stay prior even to 
service. The judge rejected this argument becaus e (see [64]) "everything about 
the agreement was expressly to be on the basis that the making of the 
agreement was not to prejudice PHP Trading and SODIPAM in relation to 
questions going to jurisdiction in any way". The reservation of their rights in 
respe ct to challenging jurisdiction extended to all arguments in relation to 
proceedings being stayed. There is, he stated, (at [64]), no distinction to be 
drawn between issues going to jurisdiction under Article 8 and questions of 
whether a stay is required un der Article 29.  
IV Discussion:  
27. BATC submitted that the judge was wrong to hold that the agreement of 25 
August 2016 was not an exclusive jurisdiction agreement in favour of the 
English court within the meaning of Article 25 of the Brussels Regulation 
Reca st and to stay its Additional Claim against PHP Trading and SODIPAM. 
Its case is that there was an agreement, the formal requirements of Article 25 
were met (the agreement was sufficiently certain and evidenced in writing), 
and the agreement should be inte rpreted by reference to English law.  
28. There is much common ground as to the principles governing the applicability 
of Article 25. In my judgment, the principles that are relevant to this appeal 
are as follows:  
(1) The agreement, or consensus between the p arties, as to jurisdiction must be 
"clearly and precisely" demonstrated: Case 24/76 Salotti v RÜWA 
Polstereimaschienen [1976] ECR 18 31 at [7]. See also Case C -159/97 
Trasporti Castelletti v Hugo Trumpy SpA  [1999] ECR I -1597  which stated that 
the aim of the predec essor of Article 25, Article 17 of the Brussels Regulation, 
was to ensure there was real consent on the part of the parties by avoiding 
jurisdiction clauses incorporated in a contract by one party going unnoticed.[1] 
(2) Article 25 requires the existence of consensus in fact, rather than a legally 
binding agreement: Antonio Gramsci Shipping Corp. v Recoletos Ltd. [2013] 
EWCA Civ 730 , [2014] Bus L R 239  at [39], Aeroflot v Berezovsky [2013] 
EWCA Civ 784 , [2013] 2 Lloyd's Rep 242  at [64]. [2] (The caution that is 
required (see IMS SA v Capital Oil and Gas Industries Ltd . [2016] EWHC 
1956 (Comm) , [2016] 4 WLR 163  at [48] and [49]) where what is relied on is 
an unsigned version of a contract which requires signature, is not relevant to 
the facts of this case).  
(3) The existence or otherwise of an agreement conferring jurisdiction is to be 
regarded as a n independent concept of EU law: Case C -214/89 Powell Duffryn 
v Petereit [1992] ECR 1 -1745 at [13] - [14] and [36], and Aeroflot v 
Berezovsky , at [54]. In Powell Duffryn v Petereit at [37] and in Case 313/85 
Iveco v Van Hool  [1986] ECR 3337 at [5] it is st ated that the duty of 
examining whether the particular clause was in fact the subject of such a 
consensus lies on the national court. This (see Dicey Morris and Collins on the 
Conflict of Laws 15th. ed. §12 -127) is usually understood to require the 
nationa l court to determine the scope of an agreement by reference to the rules 
of construction of the governing law of the agreement. It is not always easy to 
tell whether a particular question is one of construction or one of validity (see 
Dicey Morris and Coll ins ibid ) but this issue does not arise in this appeal.[3]  
(4) The requirement in Article 25(1)(a) that the agreement be in writing or 
evidenced in writing does not require the agreement to be in a formal written 
contract or the writing to be in a single document: 7E v Vertex [2007] EWCA 
Civ 140 , [2007] 1 WLR 2175  per Sir Anthony Clarke MR at [36].[4] 
29. Mr Dougherty QC submitted that the only issue in dispute in this case was the 
scope  of the agreement, a question which is for the national court to 
determine; in this case by reference to English law. On behalf of the PHP 
parties, Mr Russell QC submitted that the question is as to the scope of the 
autonomous concept of jurisdiction agreement in Article 25, and that is 
logically prior to that of the scope of any agreement, and on the basis of 
Powell Duffryn v Petereit  at [13] it must be answered by reference to EU law 
alone, and not by national law. He invited the court to uphold the order on the 
additional ground, raised in his Respondents' Notice that there was no clear 
and precise consensus conferring jurisdiction on the English Court for the 
purpose of Article 25 and the agreement  on service was in any event 
insufficiently certain to amount to an exclusive jurisdiction clause within 
Article 25. In view of the conclusion I have come to on the interpretation of 
the agreement as a matter of English law, it is not necessary to consider  Mr 
Russell's autonomous EU law point.  
30. Before this court, BATC essentially advanced the argument that it had made to 
the judge. The words of the agreement were to be construed in the light of the 
background to it, its overall purpose, and commercial commo n sense. In the 
light of those factors, it was either an express or implied term of the agreement 
that the English court would have exclusive jurisdiction. The overall purpose 
of the agreement was to have a single hearing at which "all issues" including 
jurisdiction would be dealt with. Any other construction would be inconsistent 
with Hill Dickinson's agreement to accept service if PHP Trading and 
SODIPAM's challenge to jurisdiction was unsuccessful. Moreover, in those 
circumstances, the agreement would ha ve no sensible commercial purpose 
unless the English court went on to hear the Additional Claim on the merits. 
The judge was wrong to conclude that the purpose of the agreement was only 
to avoid multiple hearings before the English court. The purpose was t o avoid 
multiple hearings in any jurisdiction and that purpose has not been achieved. 
The effect of the French proceedings and the stay has been to increase the 
overall number of hearings. Moreover, BATC unnecessarily incurred 
substantial costs in arguing jurisdiction before the English court because, had 
it known that the French proceedings would be issued, it would have left 
jurisdiction to be dealt with by the French court  
31. On the question of implied terms, Mr Dougherty submitted that the judge 
erred to the extent that he focussed on the issue of whether PHP Trading and 
SODIPAM were asked to refrain from taking active steps to prevent the court 
from determining the Additional Claim on the merits. The parties' agreement 
that the English court should have e xclusive jurisdiction was enough to satisfy 
Article 25, and that should have been the focus of the judge's analysis.  
32. Mr Dougherty also criticised the judge for giving the fact that the agreement 
contained no guarantee that the English court would be first  seised as another 
reason for finding that there was no exclusive jurisdiction agreement. It was 
only necessary for the parties to have agreed that the English court had 
exclusive jurisdiction to determine the Additional Claim, and it was not 
necessary for  them to have agreed that the English court would be first seised 
in relation to the Additional Claim.  
33. The final limb of Mr Dougherty's submissions was that the judge erred in 
holding that Hill Dickinson's agreement to accept service did not necessitate a  
finding that there was an exclusive jurisdiction agreement. He argued that the 
judge ignored the fundamental distinction between whether jurisdiction was 
available under the Regulation and the concept of lis pendens . The terms of 
the agreement were only s tated to relate to jurisdiction. His findings were also 
based on an incorrect interpretation of Articles 29 and 32(1)(a) of the Brussels 
Regulation Recast.  
34. Mr Dougherty may be right to say that the distinction drawn by Mr Russell 
between an agreement as t o the substance of the dispute and a procedural 
agreement neglects the fact that jurisdiction agreements are by their nature 
about procedure. But Mr Russell's distinction did capture a practical difference 
between an agreement about conferring jurisdiction  on the courts of a Member 
State and one about handling interlocutory matters such as those at the 
proposed CMC. As Mr Russell observed, there was nothing in the 
correspondence and in particular the exchanges on 24 and 25 August 2016 
which looks like a jur isdiction agreement, let alone can be clearly said to be 
one. I agree.  
35. I have concluded that this appeal should be dismissed, essentially for the 
reasons given by the judge below and by the Respondents in their written and 
oral submissions as to the inter pretation as a matter of English law of the 
agreement between the parties in the exchange of letters dated 24 and 25 
August 2016. I consider that the Respondents are correct to characterise the 
issue before the judge as going to the existence of an exclusi ve jurisdiction 
agreement, rather than to its scope. There was nothing in the correspondence 
between the parties between 10 June and 25 August 2016 which clearly and 
precisely conferred jurisdiction in relation to the Additional Claim on the 
English courts . The correspondence does not show any intention on the part of 
PHP Trading and SODIPAM to confer substantive jurisdiction on the English 
court, or even to consent to a suggestion by BATC that they do so. Indeed, 
Hill Dickinson's letter dated 22 August and  that dated 25 August containing 
their assent expressly stated that "SODIPAM and PHP Trading may still 
contest the Commercial Court's jurisdiction in precisely the same way as they 
would have been able to do if [BATC] had, in fact, effected service abroad" . 
That is not language conferring jurisdiction.  
36. The reluctance of PHP Trading and SODIPAM to agree to have the issue of 
jurisdiction determined in the English court makes it difficult to believe that 
they would have conditionally conferred exclusive juris diction on the English 
court to determine the substantive claim in the way BATC contends. Indeed, 
any such agreement was contradicted by the express reservation of rights in 
relation to jurisdiction. PHP Trading and SODIPAM's legitimate tools for 
contestin g jurisdiction included issuing proceedings in a French court. I accept 
Mr Russell's submission that there is no justification in this context for giving 
a narrow meaning to the words "contesting jurisdiction".  
37. The only references to litigation in other j urisdictions are in the emails dated 
13 and 29 June and the indication in Penningtons Manches's letter dated 1 July 
that, if Hill Dickinson did not agree to the joinder of PHP Trading and 
SODIPAM, one of BATC's options would be to bring proceedings in Fran ce. 
This was before Penningtons Manches had responded to Hill Dickinson's 
question as to the basis on which Penningtons Manches asserted there was 
jurisdiction, and before Hill Dickinson had given any substantive response to 
any of the suggestions.  
38. Save f or these exiguous references to litigation in other jurisdictions, the 
emphasis in the correspondence from BATC was very clearly on the 
determination of issues of joinder and jurisdiction at the CMC, and not on the 
substantive determination of the Addition al Claim. Those references were 
made well before the terms of a possible agreement were set out by 
Penningtons Manches in their letter dated 17 August. Neither that letter nor 
the subsequent correspondence, in particular Penningtons Manches's letter 
dated 24 August and the reply dated 25 August by Hill Dickinson which 
provides the consensus, refer to litigation in other jurisdictions or to avoiding 
such litigation. The judge found as a matter of fact that the possibility of 
issuing proceedings in another ju risdiction was not contemplated by the parties 
at the time of the agreement: see [2016] EWHC 3377 (Comm) at [57]. It is 
therefore difficult for BATC to make good the argument that the agreement 
was to avoid multiple hearings in all courts, not just those i n England.  
39. Although, like the judge, at one stage I considered that Hill Dickinson's 
agreement to accept service on behalf of PHP Trading and SODIPAM was 
problematic, I have concluded that it is not inconsistent with the interpretation 
of the agreement I have given. In the context of the exchanges between the 
parties, I consider that it is clear that the purpose of the agreement as to service 
of the Additional Claim was to avoid the delay and cost of having to serve out 
of the jurisdiction, rather than to abandon all jurisdictional arguments. That 
claim has been stayed pending the decision of the French court. If that court 
does decline jurisdiction, BATC can apply for the stay to be lifted and it will 
not be necessary for service out of the Additional Clai m.  
40. Accordingly, if my Lords agree, this appeal will be dismissed.  
Lord Justice David Richards:  
41. I agree.  
Lord Justice Longmore:  
42. I also agree.  
APPENDIX  
REGULATION (EU) No 1215/2012 OF THE EUROPEAN 
PARLIAMENT AND OF THE COUNCIL  
of 12 December 2012  
on jurisdiction and the recognition and enforcement of judgments in civil 
and commercial matters (recast)  
"Whereas:  
… 
(15) The rules of jurisdiction should be highly predictable and founded on the 
principle that jurisdiction is generally based on the defe ndant's domicile. 
Jurisdiction should always be available on this ground save in a few well - 
defined situations in which the subject -matter of the dispute or the autonomy 
of the parties warrants a different connecting factor. The domicile of a legal 
person  must be defined autonomously so as to make the common rules more 
transparent and avoid conflicts of jurisdiction.  
… 
(19) The autonomy of the parties to a contract, other than an insurance, 
consumer or employment contract, where only limited autonomy to de termine 
the courts having jurisdiction is allowed, should be respected subject to the 
exclusive grounds of jurisdiction laid down in this Regulation.  
… 
(22) However, in order to enhance the effectiveness of exclusive choice -of-
court agreements and to avoid  abusive litigation tactics, it is necessary to 
provide for an exception to the general lis pendens rule in order to deal 
satisfactorily with a particular situation in which concurrent proceedings may 
arise. This is the situation where a court not designat ed in an exclusive choice -
of- court agreement has been seised of proceedings and the designated court is 
seised subsequently of proceedings involving the same cause of action and 
between the same parties. In such a case, the court first seised should be 
required to stay its proceedings as soon as the designated court has been seised 
and until such time as the latter court declares that it has no jurisdiction under 
the exclusive choice -of-court agreement. This is to ensure that, in such a 
situation, the desi gnated court has priority to decide on the validity of the 
agreement and on the extent to which the agreement applies to the dispute 
pending before it. The designated court should be able to proceed irrespective 
of whether the non - designated court has alr eady decided on the stay of 
proceedings.  
… 
Prorogation of jurisdiction  
Article 25  
1. If the parties, regardless of their domicile, have agreed that a court or the 
courts of a Member State are to have jurisdiction to settle any disputes which 
have arisen or which may arise in connection with a particular legal 
relationship, that court or those courts shall have jurisdiction, unless the 
agreement is null and void as to its substantive validity under the law of that 
Member Stat e. Such jurisdiction shall be exclusive unless the parties have 
agreed otherwise. The agreement conferring jurisdiction shall be either:  
(a) in writing or evidenced in writing;  
….  
Lis pendens — related actions  
Article 29  
1. Without prejudice to Article 31(2), where proceedings involving the same 
cause of action and between the same parties are brought in the courts of 
different Member States, any court other than the court first seised shall of its 
own motion stay its proc eedings until such time as the jurisdiction of the court 
first seised is established.  
2. In cases referred to in paragraph 1, upon request by a court seised of the 
dispute, any other court seised shall without delay inform the former court of 
the date whe n it was seised in accordance with Article 32.  
3. 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 31  
1. Where actions come within th e exclusive jurisdiction of several courts, any 
court other than the court first seised shall decline jurisdiction in favour of that 
court.  
2. Without prejudice to Article 26, where a court of a Member State on which 
an agreement as referred to in Article  25 confers exclusive jurisdiction is 
seised, any court of another Member State shall stay the proceedings until 
such time as the court seised on the basis of the agreement declares that it has 
no jurisdiction under the agreement.  
3. Where the court desig nated in the agreement has established jurisdiction in 
accordance with the agreement, any court of another Member State shall 
decline jurisdiction in favour of that cour t