Michaelmas Term  
[2013] 
 UKSC
  
70 
On
  appeal from: [2012] EWCA Civ 1714  
JUDGMENT  
In the matter of "The Alexandros T"  
In the matter of "The Alexandros T" (No 2)  
In the matter of "The Alexandros T" (No 3)  
before  
Lord Neuberger, President  
Lord Mance  
Lord Clarke  
Lord Sumption  
Lord Hughes  
JUDGMENT GIVEN ON  
6 November 2013  
Heard on 8 and 9  July 2013  
Appellant  
Steven Gee QC  
Tom Whitehead  
Peter Stevenson  
(Instructed by Norton Rose Fulbright LLP)    Respondent  
Iain Milligan QC  
Michael Ashcroft QC  
Luke Pearce  
(Instructed by Thomas Cooper)  
      
Appellant  
Mark Howard QC  
Michael Swainston QC  
Tony Singla  
(Instructed by Clyde & Co LLP)    Respondent  
Iain Milligan QC  
Michael Ashcroft QC  
Luke Pearce  
(Instructed by Thomas Cooper)  
      
Appellant  
David Bailey QC  
Adrian Briggs  
Jocelin Gale  
(Instructed by Mayer Brown International LLP)    Respondent  
Iain Milligan QC  
Michael Ashcroft QC  
Luke Pearce  
(Instructed by Thomas Cooper)  
LORD CLARKE (with whom Lord Sumption and Lord Hughes agree)  
Introduction  
1. This is a remarkable case in more than  one respect. The appeal depends upon 
whether the Court is bound to stay action 2006 Folio 815 ("the 2006 
proceedings") under Article 27 of Regulation 44/2001 of the Council of the 
European Union ("the Regulation") and, if not, whether it should do so unde r 
Article 28. Before Burton J ("the judge"), the respondents expressly 
disclaimed any intention to rely upon Article 27 but relied upon Article 28 in 
support of a submission that the court should stay the 2006 proceedings in 
favour of proceedings in Greece . The judge refused to grant a stay and gave 
summary judgment for the appellants against the respondents. The judge 
granted the respondents permission to appeal to the Court of Appeal on 
various grounds, including a ground based on Article 27. The Court of  Appeal 
(Longmore, Toulson and Rimer LJJ) held that it was bound to stay the action 
under Article 27. It also gave some consideration to Article 28 but held that it 
was not necessary to reach a final conclusion in that regard because of its 
decision under Article 27. It declined to consider the issues relevant to 
summary judgment on the ground that, if there was to be a stay, those issues 
should be determined by the courts in Greece.  
The facts and the 2006 proceedings  
2. I can take the relevant events from th e judgment of Longmore LJ in the Court 
of Appeal. He in turn took them from the judgment of the judge. On 3 May 
2006 the vessel Alexandros T sank and became a total loss 300 miles south of 
Port Elizabeth, with considerable loss of life. Her owners were Sta rlight 
Shipping Company ("Starlight"). They made a claim against their insurers, 
who denied liability on the basis that the vessel was unseaworthy with the 
privity of the assured, namely Starlight. The insurers also said that Starlight 
had failed properly to report and repair damage to the vessel in accordance 
with Class Rules.  
3. Starlight, through their solicitors Messrs Ince & Co, made a number of serious 
allegations against the insurers which fell into two categories, as summarised 
by Longmore LJ at para 4: (1) allegations of misconduct by the insurers and 
their underwriters involving alleged tampering with and bribing of witnesses, 
in particular the bosun, a Mr Miranda, to give false evidence, coupled with 
other allegations of spreading false and maliciou s rumours (described for some 
reason as "malicious scuttlebutt") against Starlight in the course of purported 
investigation of their claims; and (2) deliberate failure by the insurers to pay 
up under the policy, said to have had consequential financial imp act upon 
Starlight, and to have led to substantial recoverable loss and damage. The 
insurers also relied upon material non -disclosure.  
4. Those allegations were made before the issue of proceedings and, in 
particular, in a letter dated 18 July 2006 from Ince  & Co to the insurers' 
solicitors, who were Hill Dickinson LLP, then Hill Taylor Dickinson, whom I 
will together call "HD". On 15 August 2006 Starlight issued the 2006 
proceedings in the Commercial Court against various insurers. The first four 
defendants have been described as the Company Market Insurers ("CMI") and 
the fifth to seventh defendants as the Lloyd's Market Insurers ("LMI"). The 
policies issued by both the CMI and the LMI contained exclusive jurisdiction 
clauses. They provided for English law a nd each party expressly agreed "to 
submit to the exclusive jurisdiction of the Courts of England and Wales". 
Overseas Marine Enterprises Inc ("OME") were identified in the policies as 
managers.  
5. In paras 5 to 8 of his judgment Longmore LJ spelled out in so me detail the 
issues between the parties in the 2006 proceedings. It is plain that the points 
raised by Ince & Co to which I have referred were both pleaded and central to 
the issues between the parties in those proceedings. Thus, in para 7 Longmore 
LJ ref erred to a witness statement in which Mr Crampton of Lax & Co, who 
were now acting for Starlight, asserted that the allegations made by the 
insurers in defence of the claim were based on false evidence which they had 
obtained from the bosun. He also relied  upon significant payments said to 
have been made to the bosun on behalf of the insurers in this connection.  
6. In addition, a witness statement was introduced in support of a proposed 
amendment of the claim form alleging that Starlight had sustained losses 
beyond the measure of indemnity in the relevant policy. It was alleged that, 
but for the failure of the insurers to pay under the policy, Starlight would have 
purchased a replacement vessel and had lost between US$ 45 mi llion and US$ 
47.7 million by way of increased capital cost and chartering losses. However, 
on 14 December 2007, Tomlinson J refused to allow the amendment on the 
basis of the decision of the Court of Appeal in Sprung v Royal Insurance  
[1999] Lloyd's Rep I R 111, approving the decision in The Italia Express (No. 
2) [1992] 2 Lloyd's Rep 281. As Longmore LJ explained in para 1, as a matter 
of English law, an insurer commits no breach of contract or duty sounding in 
damages for failure promptly to pay an insura nce claim.[1] The law deems 
interest on sums due under a policy to be adequate compensation for late 
payment; this is so, even  if an insurer deliberately withholds sums which he 
knows to be due under a policy. If parties agree that English law is to apply to 
a policy of insurance, this principle is part of what they have agreed. English 
law, moreover, gives no separate contractua l remedy to an insured who 
complains that an insurer has misconducted himself before settling a claim. In 
either case the remedy of the insured is to sue the insurer and, if no settlement 
is forthcoming, proceed to judgment. The trial was fixed for 14 Janu ary 2008.  
The settlements  
7. On 13 December 2007, which was the day before the hearing before 
Tomlinson J referred to above, the 2006 proceedings had been settled between 
Starlight and OME and the LMI for 100% of the claim, but without interest 
and costs, in  full and final satisfaction of the claim. It was a term of the 
settlement agreement that Starlight would obtain a stay by way of a Tomlin 
Order, and a Tomlin Order by consent between Starlight and the LMI was 
accordingly made on 20 December 2007, backdate d to 14 December, in these 
terms:  
"Save for the purposes of carrying into effect the terms agreed between the 
Claimant and the Fifth to Seventh Defendants, all further proceedings between 
the Claimant and the Fifth to Seventh Defendants shall be stayed wi th effect 
from 14 December 2007 or such earlier date as may be agreed between the 
parties or otherwise ordered hereafter."  
A similar settlement agreement dated 3 January 2008 was made between 
Starlight and OME and the CMI and a similar Tomlin Order was mad e on 7 
January 2008, but with immediate effect.  
8. In each settlement agreement "the Assured" were defined as being "[OME] 
and Starlight … as Managers and/or Owners and/or Associated and/or 
Affiliated Companies for their respective right and interest in the s hip 
Alexandros T". The CMI settlement agreement then provided: -  
"1. Each Underwriter agrees to pay on or before 18 January 2008 … their due 
proportions of the sum of US$16m … being 100% of their due proportions of 
the sum insured being 50% of the US$32m …  without interest or costs.  
2. The Assured and Claimant agree to accept the EURO equivalent of each 
Underwriter's due proportion of US$16m … in full and final settlement of all 
and any claims it may have under Policy No 302/CF 000220Z against the 
Underwrit ers in relation to the loss of " Alexandros T ", including all claims for 
interest and costs (including in respect of all costs orders made to date in the 
proceedings) but without effect to any other insurance policy in which each 
Underwriter may be involved . 
3. The Assured and Claimant agree to Indemnify each Underwriter against any 
claim that might be brought against it by any of the Assured's or the 
Claimant's associated companies or organisations or by any mortgagee in 
relation to the loss of " Alexandros T" or under Policy No 302/CF000220Z….  
4. Following the signing of this agreement, and in consideration of the 
promises herein, the Claimant and the Underwriters will apply to stay the 
Proceedings as against the Underwriters, the Proceedings to be stayed fo r all 
purposes save for the purposes [of] carrying the terms agreed herein into 
effect, such stay to have effect from the first obtainable date after 27 
December 2007  
5. Following the due and proper payment by the Underwriters of the amount 
specified in p aragraph 1 above, the Assured and Claimant and the 
Underwriters agree to file a consent order dismissing the Proceedings, with no 
order as to costs.  
6. This agreement is subject to English law and to the exclusive jurisdiction of 
the High Court in London."  
9. The LMI settlement agreement provided in similar but not identical terms: -  
… 
"2. The underwriters … agree to pay on or before 24 December 2007 … the 
sum of US$8M … being 100% of their due proportions of the sum insured 
being 25% of US$32m … without inter est or costs …  
3. The Assured and claimant agree to accept the EURO equivalent of US$8M 
… in full and final settlement of all and any claims it may have under Policy 
No … against the Underwriters signing below in relation to the loss of 
"Alexandros T "… 
4. The Assured and Claimant agree to indemnify the underwriters signing 
below against any claim that might be brought against them by any of the 
Assured's or the Claimant's associated companies or organisations or by any 
mortgagee in relation to the loss of " Alexandros T " or under Policy No …  
5. This agreement is subject to English law and the jurisdiction of the High 
Court of London."  
The Greek proceedings  
10. After setting out the terms of the settlement agreements, Longmore LJ wryly 
observed at the end of para 12 of his judgment that one might have expected 
that to be that, but it was not to be. He described what then happened in paras 
13 to 15. More than three years later, in April 2011, nine sets of Greek 
proceedings, in materially identical form, ("Greece 1") , were issued by 
Starlight, by OME, by their co -assureds under an associated Fleet Policy and 
by individual officers of those companies, against the LMI and the CMI, some 
of their employees or underwriters, and HD and some of their partners and 
employees ( "the HD defendants"). The claims are for compensation for loss of 
hire and loss of opportunity by Starlight totalling approximately US$ 150 
million and for pecuniary compensation due to moral damage amounting to €1 
million. The claims also include similarl y substantial claims by the other 
claimants in respect of alleged acts, all done unlawfully and in breach of good 
faith for the alleged purpose of avoiding the performance by the defendants of 
their legal obligations.  
11. All the claims rely upon breaches of the Greek Civil and Criminal Code. 
However the factual allegations, which Longmore LJ noted had been said by 
the judge to be "entirely familiar", include the allegation that the appellants 
were responsible for using false affidavits of witnesses (primarily  Mr 
Miranda) with intention to harm the claimants, described thus by Mr 
Crampton in a statement summarising the Greek claims:  
"The underwriters pursued this criminal effect by intentionally fabricating 
false evidence with the purpose that the underwriters  (who were responsible 
for the payment of insurance indemnity for the vessel) … avoid paying this 
insurance indemnity, contrary to their contractual obligations and their legal 
obligations and in particular contrary to the provisions of the insurance 
contr act, providing for the timely payment of the insurance indemnity."  
12. They also include the claim that the appellants were asserting and 
disseminating false information to third parties, although they were aware of 
their falsity, damaging the claimants' repu tation and credibility  
"with the purpose that the underwriters (who were responsible for the 
payments of the insurance indemnity for the vessel) …avoid paying the 
insurance indemnity, contrary to their contractual obligation and their legal 
obligation and  in particular contrary to provisions of the insurance contract 
providing for the timely payment of the insurance indemnity "  
Mr Crampton then turned to what he called the "[i]ntentional fabrication of 
false evidence for defrauding the English court" and " [t]he moral instigation 
alternatively complicity of the underwriters to perjury and on the defrauding 
of the court by the underwriters". He summarised the position in this way in 
paragraph 20 of his witness statement: - 
"The essence of the complaint against  the Defendants in the Greek 
proceedings concerns the allegation that the Defendants obtained false 
evidence in Greece from the bosun of the Alexandros T, Aljess Miranda … 
This evidence was then deployed in these proceedings in England and also in 
the … Gr eek proceedings."  
13. There is a substantial section of the Greek pleadings relating to the financial 
consequences of the failure by the insurers to comply with their obligations 
under the policy and the way in which they allegedly handled the 
investigations. In a further set of proceedings, known as "Greece 2", two 
additional heads of loss are claimed by Starlight and OME, arising out of 
substantially the same allegations.  
14. As Longmore LJ put it in para 15, in apparent recognition of the problem 
raised by the fact that such claims had either not been brought in England or 
had been ruled out as a matter of English law by Tomlinson J, Mr Crampton, 
in paragraph 27 of his witness statement, explained that the claims are 
advanced in two ways in the Greek pleadings: first, that as a result of the 
underwriters' intention to avoid payment of the insurance indemnity, 
eventually resulting in late payment of the policy proceeds, the claimants 
missed the opportunity to use the policy proceeds to invest in three vessels 
(not just the one referred to in the 2006 proceedings); and, secondly, that, as a 
result of the defendants' actions in acquiring the false evidence of Mr Miranda, 
his clients were not able to insure the vessels and without insurance they 
would not have been ab le to trade them and could not purchase them. He 
stated that his clients would "amend their pleadings prior to the hearing of the 
disputes in Greece so as to clarify this head of claim, such that no claim is 
made in respect of the late payment of the polic y proceeds". The expert 
evidence from the defendants is that it is not possible to amend the pleadings 
in the Greek courts, but, treating the proposed draft amendment, which he 
exhibited, as a clarification, it did not seem to the judge that it in any way 
cured the defect, if defect there was. It is further said that the insurance of the 
three potential new vessels was rendered impossible, since all the London 
insurers refused to quote for the vessels because of the refusal of the defendant 
underwriters to quote for them and because of the defamatory accusations 
spread as to the unseaworthiness of the Alexandros T. All these allegations 
arise out of the alleged manner in which the defendants handled Starlight's 
claim in respect of the Alexandros T, and, even  though the consequences and 
the consequential losses have expanded, and the claim for moral damages has 
been included, and although it seems that Starlight now rely on an expanded 
affidavit of Mr Miranda, the allegations, even though put into the context of 
Greek law, were said by the judge to be materially identical to those made 
prior to the settlement agreement. The acts complained of are all said to have 
constituted delicts under Greek law akin to the torts of defamation and 
malicious falsehood under E nglish law.  
The present position  
15. Since the issue of the Greek proceedings, as Longmore LJ explained in para 
16 (and the judge at his para 14), the insurers have taken further steps and 
brought further proceedings in England as follows. By applications is sued in 
the 2006 proceedings on 25 July and 3 August 2011, the CMI and the LMI 
respectively sought, pursuant to the Tomlin Orders (if necessary after lifting 
the stay imposed by them) summary relief pursuant to CPR Part 24 by way of 
declarations and damage s against Starlight. The LMI, because permission was 
given to them to join OME as a third party, also sought summary relief 
pursuant to Part 24 against OME (which filed an acknowledgment of service 
and a defence) to enforce the LMI settlement agreement, to  which it also was a 
party.  
16. In addition, fresh proceedings (2011 Folio 
 702)
  were commenced by the 
LMI, without prejudice to their case that sufficient relief could and would be 
obtained in the 2006 proceedings, against both Starlight and OME, and, after 
an acknowledgment of service and defence were filed, an application was 
made u nder Part 24 for similar relief to the claim in the 2006 proceedings. The 
LMI also brought fresh proceedings (2011 Folio 1043) against Starlight's co -
assured and, again after acknowledgments of service and defence had been 
filed, sought declaratory relief and damages for breach of the exclusive 
jurisdiction clause in their insurance policies, by virtue of the issue of the 
Greek proceedings by those co -assured. Also in fresh proceedings (2011 Folio 
894), the CMI brought claims against OME and the same co -assured in respect 
of similar claims for breach of the exclusive jurisdiction clause in the policy, 
and in respect of OME by reference to breach of the terms of the settlement 
agreement. Judgment in default was entered by the CMI against all those 
defendants on 26 October (amended on 14 November) 2011. Those 
proceedings are not the subject of this appeal and no issue therefore currently 
arises with respect to them.  
17. Finally, and by separate application, the HD defendants were joined as 
defendants in the 2006 p roceedings so that, in due course, they too might be 
able to claim relief by seeking declaratory relief within the original 
proceedings. Starlight and their associates applied to stay both the 2006 
proceedings in their current form and 2011 Folios 
 702
  and 1043.  
18. In summary, the claims made in the various proceedings are these.  
(a) The 20 06 proceedings . (1) The CMI claim against Starlight and, through 
Part 20 proceedings, against OME (i) a declaration that the Greek claims fall 
within the terms of the release in the CMI settlement agreement; (ii) a 
declaration that the bringing of the Gree k claims was a breach of the release in 
the settlement agreement; (iii) damages for breach of the release in the 
settlement agreement; (iv) a declaration that the bringing of the Greek claims 
was a breach of the jurisdiction clauses in the settlement agree ment and the 
policies; (v) damages for breach of the jurisdiction clauses in the policies and 
CMI settlement agreement; and (vi) an indemnity under clause 3 of that 
agreement in respect of claims brought by Starlight and/or its associated 
companies in the various Greek proceedings; (2) the LMI claim against 
Starlight (i) declarations that the LMI settlement agreement settles any claim 
against them by Starlight in respect of the loss of the Alexandros T and covers 
Starlight's claims in the Greek proceedings (para 3); (ii) a declaration that 
Starlight is in breach of that agreement in bringing the Greek proceedings; (iii) 
damages for breach of the settlement agreement; and (iv) a declaration that the 
agreement entitles the LMI to an indemnity against Starlight  in respect of the 
matters covered by the indemnity, which includes all claims by Starlight and 
its associated companies in the Greek proceedings; and (3) the LMI claims 
against OME by Part 20 proceedings: (i) like relief to that which the LMI 
claim agains t Starlight, as summarised above; and possibly (ii) damages for 
breach of the exclusive jurisdiction clause in the policy, although this claim is 
not repeated among the prayers.  
(b) Action 2011 Folio 
 702.
 The LMI claim against Starlight and OME: (i) 
declarations that the LMI settlement agreement settles any claim against them 
by Starlight  and/or OME in respect of the loss of the Alexandros T and covers 
Starlight's and/or OME's claims in the Greek proceedings; (ii) damages for 
breach of that agreement; (iii) damages for breach of the jurisdiction clause in 
the policy; and (iv) damages for b reach of the jurisdiction clause in the 
settlement agreement.  
(c) Action 2011 Folio 1043 . The LMI claim against five of Starlight's co -
assureds for breach of their policy jurisdiction clauses.  
The decisions of the judge and the Court of Appeal  
19. The insurers sought to enforce the settlement agreements referred to in the 
Tomlin Orders and, in a judgment handed down on 19 December 2011, having 
refused a stay under Article 28, the judge held that they were entitled to 
summary judgment for (inter alia ) a declaration that the matters sought to be 
raised in Greece were part of the settlement of the claim and that Starlight (and 
OME) are bound to indemnify the insurers against any costs incurred and any 
sums that may be adjudged against them in the Greek proceedings.  
20. As stated above, the Court of Appeal held that it was bound to stay the 2006 
proceedings and 2011 Folio 
 702
  and 1043 under Article 27, made no final 
determination of the position under Article 28 and declined to consider the 
issues of summary judgment. The Court of Appeal also held that it was not too 
late for the respondent s to rely upon Article 27 or Article 28.  
The issues  
21. In this Court the appellants challenge the correctness of the Court of Appeal's 
conclusion under Article 27 and, on the respondents' cross -appeal, submit that 
the judge was correct to refuse a stay under  Article 28. If the appellants 
succeed under both articles, the case will have to be remitted to the Court of 
Appeal to consider the respondents' appeal from the summary judgment 
granted by the judge.  
Article 27  
22. The questions for decision under Article 2 7 are whether, in the events which 
happened, the Court of Appeal was wrong to hold that it was not too late for 
the respondents to rely upon Article 27, whether the proceedings in Greece 
and the proceedings in England involve "the same cause of action", wh ether 
they are "between the same parties" and which court was the court first seised. 
For reasons which will appear, I will defer consideration of the 'too late' point 
until after consideration of the other issues.  
23. Article 27 must be construed in its cont ext. The immediate context of Articles 
27 and 28 is that they form part of Section 9 of Chapter II of the Regulation, 
which must be read in the light of Recitals 2 and 15 of the preamble. It is 
apparent from Recital 2 that the Regulation aims, in the inter ests of the proper 
functioning of the internal market, to put in place:  
"Provisions to unify the rules of conflict of jurisdiction in civil and 
commercial matters and to simplify the formalities with a view to rapid and 
simple recognition and enforcement of judgments from Member States bound 
by this Regulation..."  
Recital 15 provides:  
"In the interests of the harmonious administration of justice it is necessary to 
minimise the possibility of concurrent proceedings and to ensure that 
irreconcilable judgment s will not be given in two Member States. There must 
be a clear and effective mechanism for resolving cases of lis pendens and 
related actions and for obviating problems flowing from national differences 
as to the determination of the time when a case is r egarded as pending. For the 
purposes of this Regulation that time should be defined autonomously."  
24. The mechanism referred to in Recital 15 is provided by Section 9 of Chapter II 
of the Regulation, which includes Articles 27 and 28:  
"Section 9  
Lis pendens – related actions  
Article 27  
1. 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 proceedings  
until such time as the jurisdiction of the court first seised is established.  
2. Where the jurisdiction of the court first seised is established, any court other 
than the court first seised shall decline jurisdiction in favour of that court.  
Article 28  
1. Where related actions are pending in the courts of different member states, 
any court other than the court first seised may stay its proceedings.  
2. Where these actions are pending at first instance, any court other than the 
court first seised may also, o n the application of one of the parties, decline 
jurisdiction if the court first seised has jurisdiction over the actions in question 
and its law permits the consolidation thereof.  
3. For the purposes of this Article, actions are deemed to be related where  they 
are so closely connected that it is expedient to hear and determine them 
together to avoid the risk of irreconcilable judgments resulting from separate 
proceedings.  
Article 29  
Where actions come within the exclusive jurisdiction of several courts, an y 
court other than the court first seised shall decline jurisdiction in favour of that 
court.  
Article 30  
For the purposes of this Section, a court shall be deemed to be seised:  
1. at the time when the document instituting the proceedings or an equivalent 
document is lodged with the court, provided that the plaintiff has not 
subsequently failed to take the steps he was required to take to have service 
effected on the defendant, or  
2. if the document has to be served before being lodged with the court, at the  
time when it is received by the authority responsible for service, provided that 
the plaintiff has not subsequently failed to take the steps he was required to 
take to have the document lodged with the court."  
25. The Regulation is the successor to the Brusse ls Convention on Jurisdiction and 
the Enforcement of Judgments in Civil and Commercial Matters 1968 ("the 
Brussels Convention"), in which the equivalent provisions to Articles 27 and 
28 were Articles 21 and 22 respectively. The Court of Justice of the Euro pean 
Union ("the CJEU") has held that the principles developed in its case law with 
regard to Articles 21 and 22 of the Brussels Convention apply equally to 
Articles 27 and 28 of the Regulation: see Folien Fischer AG v Ritrama SpA 
(Case C -133/11) [2013] QB 523  at paras 31 and 32. The CJEU was of course 
previously the European Court of Justice ("ECJ"). Although some of the 
decisions to which I refer were made by the ECJ, for simplicity I will refer to 
all the European decisions as those of the CJEU.  
26. The CJEU has laid down a number of general principles which are of some 
importance. They include the impo rtant principle that a court in a Member 
State must not grant an anti -suit injunction to restrain the bringing or 
continuing of proceedings in another Member State, whether to restrain an 
abuse of process or to restrain proceedings brought or continued in breach of 
an exclusive jurisdiction clause: see eg Turner v Grovit (Case C -159/02) 
[2005] 1 AC 101  and West Tankers Inc v Allianz S pA (The Front Comor) 
(Case C -185/07) [2009] 1 AC 1138 .  
27. They also include the following, with specific reference to Articles 27 and  28. 
First, the purpose of Article 27 is to prevent the courts of two Member States 
from giving inconsistent judgments and to preclude, so far as possible, the 
non-recognition of a judgment on the ground that it is irreconcilable with a 
judgment given by t he court of another Member State: Gubisch 
Maschinenfabrik KG v Palumbo  (Case C -144/86) [1987] ECR 4861  at para 8. 
Second, the objec tive of Article 28 is to improve co -ordination of the exercise 
of judicial functions within the European Union and to avoid conflicting and 
contradictory decisions, thus facilitating the proper administration of justice: 
see eg The Tatry (Case C -406/92) [1999] QB 515  at paras 32, 52 and 55 and 
Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32 , per Lord Saville at 
39F-H.  
The CMI claims: same causes of action?  
28. It is convenient to consider first the position of the CMI claims. The first 
specific question is whether  the 2006 proceedings involve the same cause or 
causes of action as the Greek proceedings, by which I mean Greece 1 and 
Greece 2. The principles of EU law which are relevant to the determination of 
this question are in my opinion clear. They have been cons idered in a number 
of cases in the CJEU and are essentially as submitted on behalf of the CMI. 
They may be summarised in this way.  
i) The phrase "same cause of action" in Article 27 has an independent and 
autonomous meaning as a matter of European law; it  is therefore not to be 
interpreted according to the criteria of national law: see Gubisch at para 11.  
ii) In order for proceedings to involve the same cause of action they must have 
"le même objet et la même cause". This expression derives from the French  
version of the text. It is not reflected expressly in the English or German texts 
but the CJEU has held that it applies generally: see Gubisch at para 14, The 
Tatry at para 38 and Underwriting Members of Lloyd's Syndicate 980 v Sinco 
SA [2009] Lloyd's Rep IR 365 , per Beatson J at para 24.  
iii) Identity of cause means that the proceedings in each jurisdiction must have 
the same fact s and rules of law relied upon as the basis for the action: see The 
Tatry at para 39. As Cooke J correctly stated in JP Morgan Europe Ltd v 
Primacom AG [2005] 2 Lloyd's Rep 665  at para 42,  
"The expression 'legal rule' or 'rule of law' appears to mean the juridical basis 
upon which arguments as to the facts will take place so that, in investigating 
'cause' the court looks to the basic  facts (whether in dispute or not) and the 
basic claimed rights and obligations of the parties to see if there is co -
incidence between them in the actions in different countries, making due 
allowance for the specific form that proceedings may take in one n ational 
court with different classifications of rights and obligations from those in a 
different national court."  
iv) Identity of objet means that the proceedings in each jurisdiction must have 
the same end in view: see The Tatry at para 41, Gantner Electr onic GmbH v 
Basch Exploitatie Maatschappij BV (Case C -111/01) [2003] ECR I -4207  at 
para 25, Primacom at para 42 and Sinco at para 2 4. 
v) The assessment of identity of cause and identity of object is to be made by 
reference only to the claims in each action and not to the defences to those 
claims: see Gantner at paras 24 -32, where the CJEU said this in relation to 
Article 21 of the Bru ssels Convention:  
"... in order to determine whether two claims brought between the same parties 
before the courts of different Contracting States have the same subject -matter, 
account should be taken only of the claims of the respective applicants, to the  
exclusion of the defence submissions raised by a defendant."  
See also to similar effect Kolden Holdings Ltd v Rodette Commerce Ltd 
[2008] 1 Lloyd's Rep 434 , per Lawrence Collins LJ at para 93 and Research in 
Motion UK Ltd v Visto Corporation [2008] 2 All ER (Com m) 560 , per 
Mummery LJ at para 36.  
vi) It follows that Article 27 is not engaged merely by virtue of the fact that 
common issues might arise in both sets of proceedings. I would accept the 
submission on behalf of the CMI that this is an important point of distinction 
between Articles 27 and 28. Under Article 28 it is actions rather than claims 
that are compared in order to determine whether they are related.  
vii) After discussing Gubisch, The Tatry, Sarrio, The Happy Fello w [1998] 1 
Lloyd's Rep 13 and Haji -Ioannou v Frangos [1999] 2 Lloyd's Rep 337 , Rix J 
summarised the position clearly and, in my op inion, accurately in Glencore 
International AG v Shell International Trading and Shipping Co Ltd [1999] 2 
Lloyd's Rep 692 at 697:  
"It would appear from these five cases, of which the first two were in the 
European Court of Justice, and the latter three in the domestic Courts of 
England, that, broadly speaking, the triple requirement of same parties, same 
cause and same objet entails that it is only in relatively straightforward 
situations that art 21 bites, and, it may be said, is intended to bite. After al l, art 
22 is available, with its more flexible discretionary power to stay, in the case 
of 'related proceedings' which need not involve the triple requirement of art 
21. There is no need, therefore, as it seems to me, to strain to fit a case into art 
21. T he European Court, when speaking in Gubisch (at para 8) of the purpose, 
in the interests of the proper administration of justice within the European 
Community, of preventing parallel proceedings in different jurisdictions and 
of avoiding 'in so far as it i s possible and from the outset' the possibility of 
irreconcilable decisions, was addressing arts 21 and 22 together, rather than art 
21 by itself.  
Thus a prime example of a case within art 21 is of course where party A brings 
the same claim against party B  in two jurisdictions. Such a case raises no 
problem. More commonly, perhaps, the same dispute is raised in two 
jurisdictions when party A sues party B to assert liability in one jurisdiction, 
and party B sues party A in another jurisdiction to deny liabil ity, or vice versa. 
In such situations, the respective claims of parties A and B naturally differ, but 
the issue between them is essentially the same. The two claims are essentially 
mirror images of one another. Gubisch  and The [Tatry] are good examples of  
this occurrence.  
On the other hand, Sarrio v KIA is a case where the same claimant was suing 
the same defendant on different bases giving rise to different issues and 
different financial consequences, and where liability on one claim did not 
involve liabi lity (or non -liability) on the other. Haji -Ioannou v Frangos 
illustrates the situation where even though the cause is the same, and even 
though there is some overlap in the claims and issues, nevertheless different 
claims, there the proprietary claim to tr ace, may raise sufficiently different 
issues of sufficient importance in the overall litigation for it to be concluded 
that the objet differs. The authority of The Happy Fellow at first instance may 
be somewhat shaken by the reservations expressed by Lord Justice Saville on 
appeal, but it too may be said to illustrate the process of analysing the claims 
and issues in the respective proceedings to identify whether they are the same. 
Where, for instance, there is no dispute over a shipowner's right to limit s hould 
he be found liable (a separate question, which need not even be resolved at the 
time when a limitation action is commenced or a decree given), I do not for 
myself see why it should be held that the liability action and the limitation 
action involve t he same cause of action for the purposes of art 21."  
29. How do these principles provide an answer to the question whether the 2006 
proceedings involve the same cause or causes of action as the Greek 
proceedings? It is necessary to consider the claims advanced  by the CMI and 
the LMI separately and, in the case of each cause of action relied upon, to 
consider whether the same cause of action is being relied upon in the Greek 
proceedings. In doing so, the defences advanced in each action must be 
disregarded.  
30. The essential question is whether the claims in England and Greece are mirror 
images of one another, and thus legally irreconcilable, as in Gubish and The 
Tatry, in which case Article 27 applies, or whether they are not incompatible, 
as in Gantner, in which c ase it does not. Thus in Gantner a claim for damages 
for repudiation of a contract and a claim for the price of goods delivered 
before the repudiation could both have succeeded and the fact that a set -off of 
the damages would make the price less beneficial  to the seller did not make 
them incompatible. And in Maersk Olie & Gas A/S v Firma M de Haan en W 
De Boer (Case C -39/02) [2004] ECR I -
7007
  owners of a vessel which 
damaged a pipeline (owned by Maersk) sought a declaration that they were 
entitled to limit their liability under the 1957 International Convention relating 
to the Limitation of Liability of Owners of Sea -going Ships and the Dutch 
legislation that gave effect to it and that a limitation fund be established. 
Maersk subsequently commenced proceedings in Denmark claiming 
compensation for damage to the pipeline. The CJEU held that the causes of 
action were not the same: see paras 35 to 39.  
31. The CJEU underlined both the principle in Gantner that account should be 
taken only of the claims and not of the defences advanced and the  principle in 
The Tatry that the cause of action comprised both the facts and the legal rule 
invoked as the basis of the application. It held on the facts, at para 38, that:  
"the unavoidable conclusion is that, even if it be assumed that the facts 
underly ing the two sets of proceedings are identical, the legal rule which 
forms the basis of each of those applications is different. … The action for 
damages is based on the law governing non -contractual liability, whereas the 
application for the establishment of a liability limitation fund is based on the 
1957 Convention and the Netherlands legislation which gives effect to it."  
The CJEU thus distinguished Gantner and The Tatry on the basis that in those 
cases, by contrast, the claim brought in the second set of proceedings mirrored 
that brought in the first set.  
32. What then is the position on the facts? The CMI advance the claims referred to 
in para 18 above under three heads, each of which relies upon provisions 
either of the CMI settlement agreement or the pol icies. It is convenient to 
consider the claims under the three heads in this order: indemnity, exclusive 
jurisdiction and release.  
Indemnity claims  
33. These are based on clause 3 of the settlement agreement set out above. The 
claims are simple. By clause 3 t he "Assured" as defined agreed to indemnify 
the CMI against "any claim that might be brought against them by any of the 
Assured's or the Claimant's associated companies or organisations or by any 
mortgagee in relation to the loss of Alexandros T" or under the relevant 
policy. The CMI say that the Greek proceedings are in respect of such claims 
and that they are entitled to be indemnified against the consequences of those 
proceedings. They say that that claim under clause 3 does not give rise to the 
same cla im or cause of action as any claim or cause of action in the Greek 
proceedings. They say that, on the contrary, it assumes that the Greek 
proceedings will proceed and that the claimants in Greece may succeed.  
34. I would accept that submission. In my opinion,  none of the causes of action 
relied upon in the Greek proceedings has identity of cause or identity of object 
with the CMI's claim for an indemnity. As to cause, the subject matter of the 
two claims is different. The former are claims in tort (or its Gree k equivalent) 
and the claim for an indemnity is a claim in contract. As to object, that of the 
Greek proceedings is to establish a liability under Greek law akin to tort, 
whereas, as for example in the case of a claim on an insurance policy, the 
object of the CMI's claim is to establish a right to be indemnified in respect of 
such a liability. Further, whereas Starlight and its co -assureds and the 
individual officer claimants in the Greek proceedings are seeking each to 
recover its or his own loss, the inde mnity clause will, if the indemnity claim is 
otherwise good, entitle the CMI to recover from Starlight not just any sum 
awarded in Greece to Starlight, but also any sums awarded to any of Starlight's 
co-claimants. So the object of the English indemnity cla im against Starlight 
differs from, and is in fact much wider than, the object of Starlight's claim in 
the Greek proceedings.  
35. Moreover, the claim for an indemnity in the 2006 proceedings in England does 
not interfere in any way with the Greek proceedings o r vice versa. There is no 
attempt in Greece to impugn the settlement agreements or the indemnity 
agreements contained in them. The respondents do not assert, for example, 
that the indemnities do not apply to some or all of the Greek claims. I would 
determi ne this point in favour of the CMI on this simple basis. The CMI's 
cause of action for an indemnity under clause 3 of the settlement agreement is 
not the same cause of action as any of the causes of action relied upon in 
Greece, which are tortious. The res pective causes of action have neither the 
same object (le même objet) nor the same cause (la même cause).  
Exclusive jurisdiction clauses  
36. The same is in my opinion true of the CMI's claims that the respondents have 
brought the proceedings in Greece in brea ch of the exclusive jurisdiction 
clauses in the settlement agreement and/or in the insurance policies. Clause 6 
of the settlement agreement expressly provides that it is subject to English law 
and the exclusive jurisdiction of the High Court in London. The  CMI say that, 
in bringing the Greek proceedings, the respondents are in breach of clause 6 
and that they are entitled to damages as a result. They do not seek an anti -suit 
injunction to restrain the Greek proceedings. They simply seek a declaration 
that t he claims brought by Starlight and OME in Greece 1 and Greece 2 fall 
within the scope of the settlement agreement.  
37. Moreover the respondents do not assert in the Greek proceedings that the 
settlement agreements do not preclude the bringing of their claims in Greece. 
It may be that the reason they do not advance that argument is that they would 
be met with the response that a dispute as to the meaning and effect of the 
settlement agreements is subject to the English jurisdiction clause so that the 
court in Greece would have to decline jurisdiction. However that may be, they 
do not in fact advance the argument. It follows that in this respect too the 
Greek proceedings are not the mirror image of the English proceedings or vice 
versa and that the cause or causes of action based on an alleged breach of 
clause 6 of the CMI settlement agreements are not the same cause or causes of 
action as are advanced by the respondents in Greece. They do not have le 
même objet et la même cause.  
38. As I see it, the position is the same in the case of the alleged breach of the 
exclusive jurisdiction clauses in the insurance policies. There is an established 
line of cases in England to the effect that claims based on an alleged breach of 
an exclusive juris diction clause or an arbitration clause are different causes of 
action from claims for substantive relief based on a breach of the underlying 
contract for the purposes of Article 21 of the Brussels Convention and Article 
27 of the Regulation: see eg Contin ental Bank NA v Aeakos Compania 
Naviera SA [1994] 1 WLR 588 per Steyn LJ (giving the judgment of the Court 
of Appeal) at 595H -596C; Alfred C Toepfer International GmbH v Molino 
Boschi Sarl [1996] 1 Lloyd's Rep 510 per Mance J at 513; Toepfer 
International GmbH v Société Cargill France [1997] 2 Lloyd's Rep 98, per 
Colman J at 106; Sinco per Beatson J at paras 50 and 54; and WMS Gaming 
Inc v Benedetti Plus Giocolegale Ltd [2011] EWHC 2620 (Comm)  per Simon 
J at para 32.  
39. Those cases support the conclusion that the claims of the CMI in the 2006 
proceedings for breach of the exclusive jurisdiction clauses in the insurance 
policies (or indeed in the settlement agree ment) do not involve the same cause 
or causes of action within the meaning of Article 27 as the respondents' claims 
in (or akin to) tort in the Greek proceedings. I understand that this point has 
been reserved for decision by the Court of Appeal but, as I see it at present, 
nothing in the relief sought by the CMI offends the principle of mutual trust 
and confidence which underlies the Regulation: see eg Erich Gasser GmbH v 
MISAT Srl (Case C -116/02) [2005] QB 1 . The CMI do not seek to stop the 
Greek proceedings or to restrain Starlight and OME from pursuing them. They 
merely seek declarations as to the true position under the settlement  
agreements which are both governed by English law and subject to the 
exclusive jurisdiction of the English courts and under the clauses in the 
insurance contracts which also provide for the exclusive jurisdiction of the 
English courts. This has the advant age that the courts with exclusive 
jurisdiction decide what is the true meaning of the settlement agreements and 
the jurisdiction clauses.  
Release  
40. The same is also, in my opinion, true of the claims based on what are called 
the release provisions in the C MI settlement agreement. It is said that the 
provision that the sums agreed to be paid under the CMI settlement agreement 
are to be paid "in full and final settlement of all and any claims it may have 
under the policy" precludes the payment of any further sums arising out of the 
loss of the vessel insured. It is said that, in the light of the agreement, the CMI 
are entitled to a declaration that the Greek claims fall within the terms of the 
agreement, that they are entitled to a declaration that the bringin g of those 
claims is a breach of the agreement and that they are entitled to damages for 
that breach.  
41. The question is whether these claims involve le même objet et la même cause 
as the claims in the Greek proceedings. In my opinion they do not for the sam e 
reasons as in the case of the claims for an indemnity and the claims arising out 
of the exclusive jurisdiction clauses. The Greek claims are claims in tort and 
these are contractual claims. The factual bases for the two claims are entirely 
different. Mor eover the object of the two claims is different.  
42. This is to my mind clear in the case of the claims for damages for breach of 
the release provisions in the settlement agreements and for a declaration that 
the bringing of the Greek claims is a breach of th e settlement agreement. The 
nature of the claims is almost identical to the nature of the claims for breach of 
the jurisdiction agreements. In both cases the alleged breach is the bringing of 
the claims in Greece. Moreover, like the claims for an indemnity , the claim for 
damages for breach of the settlement agreement assumes that the claims in 
Greece may succeed. Is the position different in respect of the claim for a 
declaration that the Greek claims fall within the terms of the release in the 
settlement a greements? In my opinion the answer is no.  
43. All these claims have the same thing in common. It is that the legal basis for 
the claims in Greece is different from the legal basis of the claims in England. 
In Greece the legal basis for the claims is tortious , whereas in England the 
legal basis of the claims is contractual. It is thus not a case like Gubisch , 
where, as the CJEU put it at para 15, the same parties were engaged in two 
legal proceedings in different Contracting States which were based on the 
same  'cause of action', that is to say the same contractual relationship. The 
'cause' was therefore the same. Equally the 'objet' of the actions was the same, 
namely to determine the effect if any of the contract. As the CJEU put it at 
para 16, the action to e nforce the contract was aimed at giving effect to it, 
while the action for its rescission or discharge was aimed "precisely at 
depriving it of any effect". The question whether the contract was binding lay 
"at the heart of the two actions". That is not tru e here because the object of the 
English action is to enforce the contract, whereas the object of the Greek 
proceedings is to establish a different liability in tort.  
44. Lord Mance takes a different view in one respect. So far as the claims for 
damages for b reach of the releases in the settlement agreements, the claims for 
a declaration and damages for breach of the jurisdiction clauses and the claims 
for indemnities are concerned, there is no difference between us. However, so 
far as the claims for a declara tion that the Greek claims fall within the terms of 
the release in the settlement agreements is concerned, Lord Mance takes a 
different view. He notes in para 140 the terms in which the claims are pleaded. 
The formulation in paragraph 18(a) above, which wa s adopted by the 
respondents, is in fact derived from the declaration made by the judge. 
However, to my mind nothing turns on this difference. Moreover, I do not see 
that it makes any difference that the respondents discharged their obligations 
under the s ettlement agreements.  
45. The critical point is that on the facts here the legal basis of the claims in tort in 
Greece is different from the legal basis of the contractual claims in England. It 
is true that, if successful, a declaration that the tortious clai ms have been 
settled or released will or may afford the appellants a defence to the Greek 
proceedings but the cases show that defences are irrelevant. Viewed through 
the perspective of the claims, the two claims are not the mirror image of one 
another. Eve n if (contrary to my view) the two sets of proceedings had in this 
respect le même objet  they did not have la même cause , whereas the cases 
show that, in order to involve the same cause of action, they must have both le 
même objet et la même cause .  
46. The po sition would be different if the CMI were to advance a claim in the 
English proceedings claiming a declaration that they are not liable to the 
respondents in Greece. That claim would be the mirror image of the claims 
being brought by the respondents in Gre ece and would fall within the 
principles laid down in Gantner and The Tatry. In fact, after the judge had 
delivered his judgment, the CMI did, as I understand it, make an application 
for such a negative declaration in the light of the fact that Starlight a nd OME 
had commenced Greece 2. We were told that in the event the application was 
never determined and that the CMI do not pursue it. It has been confirmed that 
any such claim has now been abandoned.  
47. For these reasons, subject to a possible reference to t he CJEU discussed in 
paras 58 -59 below, I would hold that Article 27 does not apply to any of the 
causes of action advanced by or against the CMI.  
48. I appreciate that, in reaching these conclusions I have reached a different view 
from that of the Court of Appeal. Before I express my  reasons,  I should say 
that I suspect that the focus of the argument in the Court of Appeal was 
somewhat different from that in this Court. The reasons are I think twofold. 
First, in para 40 of his judgment Longmore LJ distinguis hed Sinco on the 
basis that the difference between this case and that is that in that case, in 
contradistinction to this, there was no settlement agreement which could, as he 
put it, supposedly deny the Greek claimants the right to bring proceedings at 
all. I do not see that as correct. As explained above, the CMI do not seek to 
deny the respondents the right to commence proceedings in Greece but merely 
say that the causes of action in the two sets of proceedings are different.  
49. The second point is perhaps more significant. In para 46 Longmore LJ 
correctly notes that the CMI's case is that the bringing of the Greek 
proceedings is a breach of the jurisdiction clauses in the policies and a breach 
of the terms of the settlement agreement and, again correctly, s tates that the 
primary relief claimed by the CMI in England is a declaration that Starlight 
will be liable to indemnify the CMI against any costs incurred in the Greek 
proceedings and any liability in those proceedings. I have already given my 
reasons for concluding that those are different causes of action from the causes 
of action in tort relied upon by the respondents in Greece. They are not a 
mirror image of one another.  
50. As I see it, the Court of Appeal treated the question as a broad one focusing on 
the overall result in each jurisdiction. This can be seen from paras 47 to 50 of 
Longmore LJ's judgment. In paras 46 and 47 he summarised the claims of 
both the CMI and the LMI. He then said this at paras 48 and 49:  
"48. It is clear that the first 3 paragr aphs of the LMI application are in terms an 
assertion that LMI are not liable in respect of the claims in Greece. CMI's 
allegation that the Greek claimants are in breach of the settlement agreements 
is in effect a similar assertion. It may be said that the re are other causes of 
action in the English proceedings which are not exactly mirror images of the 
allegations in the Greek proceedings but to the extent that they are not, they 
are essentially the same in the sense that the key assertion in Greece is tha t 
there are non -contractual claims and the key assertion in England is that those 
non-contractual claims have been compromised by the settlement agreements. 
The claims for damages and indemnity are in any event parasitic on the central 
contention that, onc e a settlement had been reached, all matters in issue had 
been compromised. It is, of course, elementary that Article 27 has regard to 
causes of action rather than proceedings and that is why it is necessary to 
concentrate on the allegations relating to th e settlement agreement. It is 
certainly the case that there is a considerable risk of inconsistent judgments if 
one of the sets of proceedings is not stayed and the rationale behind Article 27 
therefore favours a stay if the Greek court was the court first  seised.  
49. I therefore conclude that, in so far as the English proceedings assert non -
liability by reason of the settlement agreements, there is an identity of issues 
and the respective causes of action are the same. To the extent that allegations 
are m ade in England that the Greek parties are in breach of the settlement 
agreements or in breach of the exclusive jurisdiction clauses in either the 
insurance policy or the settlement agreements themselves (and that they 
should therefore indemnify the insurer s for the cost of the Greek proceedings) 
they are parasitic and dependent on the basic cause of action in England for a 
declaration of non -liability. They cannot proceed in their own right until the 
underlying question of the ambit of the settlement agreem ents as a defence to 
the Greek actions in tort has been resolved."  
51. In my opinion that analysis is not consistent with the principles laid down by 
the CJEU set out above. As already stated, those principles require a 
comparison of the claims made in each j urisdiction and, in particular, 
consideration of whether the different claims have le même objet et la même 
cause without regard to the defences being advanced. As I see it, Article 27 
involves a comparison between the causes of action in the different set s of 
proceedings, not (as in Article 28) the proceedings themselves. In para 48 
Longmore LJ recognises that there are causes of action in the English 
proceedings which are not (as he puts it) exactly mirror images of the 
allegations in the Greek proceeding s but says that, to the extent that they are 
not, "they are essentially the same in the sense that the key assertion in Greece 
is that there are non -contractual claims and the key assertion in England is that 
those non -contractual claims have been compromi sed by the settlement 
agreements". And at the end of para 49 he says that the claims in England 
cannot proceed in their own right "until the underlying question of the ambit 
of the settlement agreements as a defence to the Greek action in tort has been 
resolved".  
52. I respectfully disagree with that approach. It focuses on the nature of the 
settlement agreements as a defence to the Greek action in tort, which the 
authorities in the CJEU show is irrelevant. Given the fact that defences are 
irrelevant, the anal ysis cannot involve a broad comparison between what each 
party ultimately hopes to achieve. The analysis simply involves a comparison 
between the claims in order to see whether they have the same cause and the 
same object. In so far as Andrew Smith J treat ed the question as a broader one 
in Evialis SA v SIAT [2003] 2 Lloyd's Rep 377  I respectfully disagree with 
him, although, as Beat son J observed in Sinco at para 50, Evialis was 
distinguishable on the facts because the insured had brought a substantive 
claim in the English proceedings in addition to their claim in the Italian 
proceedings, which rendered the former a mirror image of t he latter. This case 
can be distinguished on the same basis, at least in the case of the CMI's claims.  
53. I also note in connection with Sinco that at para 40 Longmore LJ observed that 
the difference between that case and this was that in that case there was  no 
settlement agreement which could supposedly deny the right of the Greek 
claimants to bring proceedings at all. For the reasons I have given I would 
respectfully disagree with that approach. A settlement agreement might be a 
defence to a claim. It could  not deny the right of the Greek claimants to bring 
proceedings at all.  
54. For these reasons I would hold that Article 27 has no application to the case of 
the CMI. Moreover, subject to one point discussed at paras 58 -59 below, I 
would not order a reference to the CJEU on this question because the relevant 
principles are clearly set out in its jurisprudence and are acte clair. In these 
circumstances, where none of the causes of action in the English proceedings 
is the same as the causes of action in the Greek  proceedings, it is not necessary 
in the case of the CMI to consider the other issues which might arise, namely 
the position in relation to other parties and which court was the court first 
seised for the purposes of Article 27.  
The LMI  claims:  same cause s of action?  
55. Save possibly for two points, the position of the LMI is essentially the same as 
in the case of the CMI. The first point is that the jurisdiction clause in clause 5 
of the LMI settlement agreement differs from that in clause 6 of the CMI 
settlement agreement in that it does not expressly provide for the exclusive 
jurisdiction of the High Court in London but merely for the jurisdiction of the 
High Court in London. However, subject to its detailed provisions, Article 23 
of the Regulation provides  that, where parties have agreed that a court or the 
courts of a Member State shall have jurisdiction, that court or those courts 
shall have jurisdiction and, moreover, that such jurisdiction shall be exclusive 
unless the parties have agreed otherwise. The  question whether the parties had 
agreed otherwise was discussed by the judge at paras 19 to 23 of his judgment, 
where he held that the parties had not agreed otherwise and that clause 5 of the 
LMI was an exclusive jurisdiction clause. No appeal was brough t against that 
part of the judge's ruling.  
56. The second point is this. I had understood during the argument that the LMI 
were seeking a negative declaration of the kind which the CMI were not. It 
now appears that I was mistaken. I understand that the LMI ha d indicated an 
intention of doing so if the CMI proceeded with an application for permission 
to do so but, since they did not, nor did the LMI, who have now expressly 
stated that, like the CMI, they will not do so. As I see it, in these 
circumstances the p osition of the LMI is the same as that of the CMI. The 
causes of action advanced in England in the 2006 action and in 2011 Folio 
702,
  as summarised on behalf of the LMI, are claims by the LMI against 
Starlight and OME based on clauses 3, 4 and 5 of the LMI settlement 
agreement. Those advanced in 2011 Folio 1043 are claims by the LMI again st 
the co -assureds to enforce the English jurisdiction clause in the insurances.  
57. Since, on this basis, the relief sought by the LMI is not a declaration of non -
liability, the conclusions and reasoning set out above on the question whether 
the causes of ac tion are the same apply to it. It follows that I would allow the 
appeals of both the CMI and the LMI on the Article 27 point.  
58. However these conclusions are subject to the question whether any of the 
issues discussed above should be referred to the CJEU. Left to myself, I would 
not refer any of them because the principles of European law are clear and the 
only question is how they should be applied in the instant case. However, Lord 
Mance has arrived at a different view from me on the question whether Arti cle 
27 applies to the claims by both the CMI and the LMI for a declaration that the 
Greek claims fall within the terms of the release in the settlement agreements 
or that under the agreements the tort claims have been settled. In short he is of 
the view th at those claims are essentially for declarations of non -liability. In 
these circumstances, I have reached the conclusion that the position is the 
same as I previously considered it to be when I thought that the LMI were 
seeking a declaration of non -liabili ty. That is that, unless the CMI and the LMI 
abandon those claims within 14 days, we should refer the question whether the 
claims for those declarations involve the same cause of action as the claims in 
Greece within the meaning of Article 27. Lord Neuberg er has also given 
reasons why, absent such abandonment, this question should be referred.  
59. On the other hand, if the CMI and the LMI do abandon those claims, I would 
allow both their appeals under Article 27 and refuse a mandatory stay of the 
proceedings u nder it. If they do not abandon those claims, I would allow the 
appeals under Article 27 in respect of the other claims but refer the question 
referred to above to the CJEU and defer a decision on that issue until the 
CJEU has determined the question.  
Seisin under Article 27  
60. It is not I think in dispute (and is in any event correct) that a court is only 
seised of claims by or against new parties from the date that those parties are 
added to the proceedings. In relation to the 2006 proceedings, the English 
court was only seised of claims against OME once OME was joined to the 
proceedings on 20 September 2011 and, for example, to the extent that the 
LMI in action 2011 Folio 
 702
  are seeking declarations relying on the 
settlement agreement as a settlement of or defence to Starlight's and OME's 
claims in the Greek proceedings, the English cour ts were only seised of that 
action in 2011. It follows that, in each of those cases the court first seised was 
the Greek court and not the English court, and that, to the extent that the LMI 
advance claims for a declaration that the Greek claims fall withi n the terms of 
the release in the settlement agreement or that under the agreement the tort 
claims have been settled, unless the English court is the court first seised, they 
will be entitled to a stay under Article 27. The same is essentially true of the 
CMI claims.  
61. The question is which court is first seised of what in circumstances where 
some of the claims brought in England are different from and based on 
different causes of action from those brought in Greece and one of them in 
each case, namely the c laim for the declaration or declarations referred to 
above, is based on the same cause of action.  
62. The approach of the parties is starkly different. It is submitted on behalf of the 
appellants that the answer is to be found in the language of Articles 27 a nd 30 
and is that the court first seised is that in which the proceedings were first 
brought and that the court remains the court first seised of the proceedings 
even where those proceedings are subsequently amended by the addition of 
new claims or otherwi se. It is submitted on behalf of the respondents, by 
contrast, that if a new claim is added by amendment, the court is seised of the 
proceedings so far as that amendment is concerned when the amendment is 
made and not at the time of the institution of the original, unamended 
proceedings. It seems to me that there is considerable force in the appellants' 
analysis of the language of the Regulation but the respondents' case has 
support both in the English cases and in the textbooks. In the course of this 
judgm ent I will consider the issues (interesting as they are) only briefly 
because I have reached the conclusion that, if the appellants persist in their 
claims for the declarations referred to in paras 58 and 59 above and this issue 
is critical for the resolut ion of the appeal, the proper course is to refer the 
question to the CJEU.  
63. The case for the appellants can be summarised thus. Article 27 is concerned 
with "proceedings involving the same cause of action". So, for the purposes of 
deciding whether to grant  a stay of its proceedings under Article 27, the court 
must compare the cause or causes of action in each set of proceedings. It is 
Article 30 that determines when the court is "deemed to be seised" and, by 
Article 30(1), it provides that (subject to the l imited exceptions at the end of 
Article 30(1) and in Article 30(2)), it is deemed to be seised when the 
document instituting the proceedings or an equivalent document is lodged with 
the court. Where the question is which of two courts is first seised, the two 
dates on which the courts are deemed to be seised are compared and the court 
deemed to be seised first is the court first seised. The appellants also rely upon 
the transitional provisions in Article 66, which they say support the 
proposition that proce edings have only one date upon which they are instituted 
and is inconsistent with the idea that they can have several such dates as and 
when new claims are added by amendment.  
64. The appellants say that in this case the answer is that the English court was t he 
court first seised because the Greek court was not seised until some five years 
later. They say that this is a simple rule which is easy to apply and that there is 
no warrant in the language of the Regulation for concluding that it was 
intended that the  court should be seised anew each time a new claim is added 
by amendment, which would be complicated and unnecessary and give rise to 
endless interlocutory disputes.  
65. The appellants criticise Longmore LJ for asking in para 52 whether it can be 
said that th e English court was first seised of the relevant causes of action now 
pursued in Greece and for noting that Article 27 only has regard to "causes of 
action" rather than proceedings. They say that that is inconsistent with Articles 
27 and 30 because Article  27(1) uses the word "proceedings" twice and it is 
used again in Article 30(1). They recognise that for the purpose of deciding 
whether there is le même objet or la même cause the court must look to the 
claims made but, for the purpose of deciding which co urt is deemed to be 
"first seised" under Article 27, the autonomous test in Article 30 is applied. 
Finally, they say that Article 30 does not mention "causes of action" and that 
the Court of Appeal overlooked the word "proceedings" used twice in Article 
27, and did not refer to Article 30 at all. Moreover, although the word 
"proceedings" is not defined in the Regulation, it appears nearly 50 times in 
the Regulation used as a word of general application. The uses of the word 
show that issues or causes of act ion (or claims) may change during the course 
of the "proceedings".  
66. The appellants further criticise Longmore LJ in the Court of Appeal by 
reference to paras 53 and paras 64 -66. They contrast the reference in para 53 
to Article 27 having regard only to cau ses of action rather than proceedings, 
with the reference in para 64, with apparent approval, to this quote from the 
judgment of Saville LJ in The Happy Fellow at pages 17 -18:  
"… article 21 is concerned with proceedings and article 22 with actions. The 
questions are whether the proceedings involve the same cause or object or 
whether the actions are related. It is thus a misreading of the Convention to 
ask which Court is first seised of issues which are or might be raised within 
the proceedings or actions. If such were the case, then the articles would 
achieve precisely the opposite of their intended purpose which is, to achieve 
the proper administration of justice within the Community ..."  
Saville LJ was there considering the position under what is now Arti cle 28. 
However the appellants say that the word "action" in Article 28 means the 
same as "proceedings" in Article 27 and that Longmore LJ was correct in 
paras 64 -66 and wrong in para 53.  
67. Although the appellants' case has to my mind the merit of simplicit y and of the 
avoidance of time consuming and expensive satellite litigation, the 
respondents say that it is simplistic and contrary to both principle and 
authority. It is fair to say that there is considerable support in the authorities 
and the text books for the proposition that the new claims added to the 2006 
proceedings, which were founded on the Greek proceedings and thus made 
second in time, were new claims, that the English court should be regarded as 
seised of them only when they were added to the 2 006 proceedings and that 
the Greek court was the court first seised within the meaning of Article 27.  
68. In the important case of FKI Engineering Ltd v Stribog Ltd  [2011] 1 WLR 
3264 , which was itself a case on Article 28, the Court of Appeal considered 
Article 27 and a number of cases decided u nder it. At para 84 Rix LJ said that 
the essence of the cases was that, where the "same cause of action" or "the 
same parties" are introduced only by way of service, or amendment, the 
relevant proceedings are only "brought" at the time of such service or 
amendment, not at the time of the institution of the original, unamended 
proceedings. Neither Mummery LJ nor Wilson LJ expressed a different view.  
69. The respondents also rely upon Sinco  per Beatson J at paras 61 to 68 and, in 
that connection, upon this comme nt in Briggs on Civil Jurisdiction and 
Judgments , 5th edition, 2009 at para 2.235, page 327, note 1:  
"In [Sinco ] the proposition that an English court was first seised of a claim for 
damages for breach of a jurisdiction clause, which could only have been 
brought before the English court after  the objected -to proceedings were 
instituted before the foreign court, was rather challenging."  
And in Research in Motion UK Ltd v Visto Corporation  [2007] EWHC 900 
(Ch), Lewison J said at para 19:  
"It is also common ground that the counterclaim is to be treated as an action in 
its own right for the purposes of the judgment reg ulation. It seems to me that 
once RIM's English non - infringement action is out of the way the only 
relevant proceedings are Visto's counterclaim and the Italian proceedings. Of 
those two, the Italian court is plainly the first seised. Indeed it cannot be 
otherwise since the very fact of the Italian claim is part of the foundation of 
the counterclaim."  
70. The respondents rely upon Briggs  at para 2.235, where, as I read it, their case 
is supported, although some doubts are expressed as to the desirability of th is 
approach. The respondents also relied upon the 15th edition, 2012 of Dicey, 
Morris and Collins  on The Conflict of Laws at paras 12 -060 and 12 -069, 
where they say this:  
"12-060. … Each lis between a plaintiff and a defendant has to be considered 
individ ually to determine which court was seised of it first in time, and Art. 27 
applied accordingly. …  
12-069. Where a claim form which has been issued and served is amended by 
the addition of an additional claim, or by the introduction of a claim or 
countercla im against another party, the material question is whether the date of 
seisin in respect of the additional claim is the date on which the amended 
claim form is reissued (which may, depending on the circumstances, be only 
after obtaining the permission of t he court), or the date of the original issue. 
As it is difficult to see how a court can be said to be seised of a claim which 
has not been made and does not appear in the claim form, it cannot be correct 
that as long as a claim form has been issued and ser ved, the court already has 
temporal priority over any issue which may later be added by amendment. It 
would follow from a conclusion that the court is not seised of the new claim 
until the amended claim form is reissued that the defendant may be able to 
pre-empt the amendment by commencing an action of his own in another 
Member State. The court seised with such pre -emptive proceedings will 
obviously be regarded as being seised later than the court before which the 
original action was brought, but institutio n of the later action may serve to 
prevent the proposed, and now duplicative, amendment of the original action; 
and there is no basis in the Regulation for refusing to give effect to a use of the 
rules which might be characterised as sharp practice."  
Final ly, the respondents rely upon Fentiman  on International Commercial 
Litigation , 2010, at para 11.27:  
"Principle suggests that an amended claim arising from the same facts as the 
original claim might be consolidated with the original claim for the purposes 
of Article 30 but not where the facts arose subsequently. In the latter case it 
does no violence to the expressions 'actions' or 'proceedings' to differentiate 
the claims."  
71. While these expressions of view undoubtedly provide strong support for the 
responden ts' submissions, some of them seem to me to be expressed in a 
somewhat tentative way and I am not sure that the textbook writers grapple 
with the points made by the appellants on the language of the Regulation.  
72. However that may be, as indicated earlier, I  am of the opinion that this issue is 
by no means acte clair  and, if the appellants maintain their claim or claims in 
England for a declaration that the Greek claims fall within the terms of the 
release in the settlement agreements or that under the agreem ents the tort 
claims have been settled, I would refer an appropriate question to the CJEU 
before forming a concluded view with regard to the applicability to that claim 
or claims. If they abandon them, I would hold that the respondents are not 
entitled to a stay under Article 27, refuse them a mandatory stay in respect of 
all the claims and allow the appellants' appeal.  
Article 28  
73. The question whether those claims which are not within Article 27 should be 
stayed depends upon whether they should be stayed under Article 28. As 
stated above, in the exercise of his discretion the judge refused the 
respondents' application for a stay under Article 28. The appellants say that he 
was right to do so. The respondents' case is that the English court was second 
seise d for the purpose of Article 28 and that a stay should be granted as a 
matter of discretion.  
Seisin under Article 28  
74. It is plain from the express terms of Article 28(1) that the discretion in Article 
28 is limited to any court other than the court first s eised. It follows that, if the 
English court was first seised, it has no discretion to stay. Article 28 moreover 
applies to related actions pending in the courts of different member states and, 
by Article 28(3), actions are deemed to be related where they are so closely 
connected that it is expedient to hear and determine them together to avoid the 
risk of irreconcilable judgments resulting from separate proceedings. It is not 
in dispute in these appeals that the various proceedings are related proceedings 
for the purposes of Article 28 and I would in any event so hold. The questions 
remain whether the actions are pending, whether the English court is the court 
first seised and, if it is not, how the discretion should be exercised.  
75. In Stribog the Court of A ppeal considered the correct approach to Article 28. 
It held that two questions arise, namely (1) whether the two sets of 
proceedings are related, taking account of any amendments which have been 
made at the time of the enquiry and (2) which set of proceed ings were 
commenced first? Rix LJ expressed the position clearly at paras 119 and 120. 
He explained that it is only when there are related and pending actions in 
separate member states that Article 28 comes into issue. The question whether 
they are related  is, as he put it, the Article 28(3) question. He then said:  
"119. … The question of when seisin occurs and thus which of the courts is 
the court first seised is the article 30 question. FKI's submission in effect seeks 
to roll the two questions together and ask: which of the two courts is the first 
to be seised of an action which at the time of its seisin was a related action? 
This is the concept of the 'first related action', a concept found in neither 
article 28 nor article 30. Stribog on the o ther hand asks: once you have found 
two related and pending actions and seek to stay one of them, invoking article 
28, which of the two courts was the first to achieve seisin of one or other of 
those actions?  
120. In my judgment, the latter question is the  correct one, and is to be 
preferred to the former ..."  
See also per Mummery LJ at paras 40 to 44, where he stressed in particular 
that the question is whether the court concerned is seised of an action and not 
of a particular issue in an action. He also stressed that the time at which the 
comparison between the two actions is made is the time of the hearing of the 
application for the stay.  
76. Wilson LJ noted at paras 132 -134 that Mummery and Rix LJJ asked the 
relevant questions in a slightly different order:  Mummery LJ asked which 
court was first seised in a pending action before asking whether the actions 
were related, whereas Rix LJ preferred to ask them in the reverse order. 
Wilson LJ said that he did not see why the order matters but that Rix LJ 
seemed to  have the terminology of Article 28 on his side. I agree.  
77. The question whether the actions are pending is closely related to the question 
whether the English court remains first seised. The respondents say that there 
was no action pending in England when the Greece 1 proceedings were 
commenced. In the alternative they say that, if the original action is still alive, 
the English court is not first seised because the claims now brought are 
entirely new claims, which they say should be equated with new procee dings. 
I will consider these points in turn.  
78. On the first point, the appellants say, by contrast, that the 2006 proceedings 
are still on foot, and thus pending, having been stayed but not finally 
concluded. I would accept the appellants' submissions. The settlement 
agreements were in this respect in identical terms. It was a term of them that 
Starlight would obtain a stay by way of Tomlin Orders. The orders were both 
in the same terms, which are standard in such cases, and (as quoted in para 7 
above) provi ded that "save for the purposes of carrying into effect the terms 
agreed … all further proceedings … shall be stayed." It appears to me that, on 
the true construction of those orders, the actions remained unstayed for the 
purposes of carrying into effect t he terms agreed and were otherwise stayed.  
79. As I see it, in so far as the actions remained unstayed, it follows that the court 
remained seised of them, presumably at least until there was no longer any 
need for the terms agreed to be carried out. It is pla in from the language of 
Article 28(1) that "the court first seised" means the court first seised of the 
action, which must mean first seised of the proceedings, not of particular 
claims or causes of action within the proceedings. It seems to me to follow 
that, in so far as the appellants are seeking to enforce the provisions of the 
settlement agreements, as they are, the English court remains first seised. I 
arrive at this conclusion by a construction of Article 28(1) and of the Tomlin 
Order. The appellants  were able to pursue these claims without issuing further 
proceedings. In this regard I would accept the analysis of the judge at paras 24 
to 29. I would adopt the analysis of Sir Andrew Morritt V -C in Bargain Pages 
Ltd v Midland Independent Newspapers Ltd  [2003] EWHC 1887 (Ch)  and I 
would not follow the reasoning of the Court of Appeal in Hollingsworth v 
Humphrey, (1987) CAT 1244.  
80. What then of the parts of th e actions which are stayed under the Tomlin 
Orders? These would include the claims for breach of the exclusive 
jurisdiction clauses in the policies of insurance, which do not depend upon the 
terms of the settlement agreements. The appellants rely upon prin ciples 
developed by the English courts as a matter of English, not European, law. 
However, this is in my opinion a permissible approach. Article 30 of the 
Regulation provides for the circumstances in which a court is deemed to be 
seised. I recognise of cou rse that the concept of seisin is an autonomous 
European law device but Article 30 does not make express provision for the 
circumstances in which it ceases to be seised. In these circumstances, it seems 
to me to be appropriate for national courts to have r egard both to the nature of 
seisin in European law and to their own procedural rules in deciding whether 
their courts are no longer seised of a particular set of proceedings.  
81. The appellants rely upon the decision of the Court of Appeal in Rofa Sport 
Manag ement AG v DHLK International (UK) Ltd [1989] 1 WLR 902, where 
the Court of Appeal held that a stay of proceedings is not equivalent to a 
dismissal or discontinuance and therefore that an action in which all further 
proceedings have been stayed, even if by  consent of all parties after a 
settlement, remains in being. See in particular per Neill LJ at 909H to 910D 
and 911A -C. He concluded that, for the sake of clarity and certainty, the word 
'stay' in an order should not be treated as a possible equivalent of  a dismissal 
or discontinuance. Although the action cannot continue without an order of the 
court, nor can it, he said, be regarded as dead in the same way as an action 
which has been dismissed or discontinued by order. I agree.  
82. The reasoning in Rofa supp orts the conclusion that in circumstances in which 
the 2006 proceedings have been stayed and not dismissed or discontinued the 
court remains seised of them. It is not and could not be disputed that the court 
was seised of the proceedings in accordance with  Article 30 when the claim 
form in the 2006 proceedings was issued. It is not suggested that the appellants 
failed to take any of the steps referred to in Article 30(1) or (2) which would 
have nullified that effect. The question is whether anything happene d 
subsequently from which it can be inferred that the court was no longer seised. 
I would answer that question in the negative.  
83. Although Rofa was not a decision on the construction of the Regulation, the 
correct approach is to consider whether anything oc curred which could lead to 
the conclusion that the approach adopted there should not be applied to the 
stay incorporated in the Tomlin Orders and, if not, whether there is anything 
which leads to the conclusion that the court is not still seised of the 
proceedings. I would answer both those questions in the negative. Although it 
is true that the CMI settlement agreements contained a provision that, on 
payment of the settlement sum, the parties would file a consent order 
dismissing the proceedings, no such c onsent order was made or filed. The LMI 
settlement agreement does not contain any such provision. In all these 
circumstances, I can see no sensible basis upon which it can be said that the 
English court is no longer seised of the proceedings. There remain significant 
disputes arising out of the settlement agreements and the insurances.  
84. The second point taken on behalf of the respondents under this head is that, 
even if the original action is still alive, the claims now brought are new claims, 
which should be equated with, or treated as, new proceedings. They rely upon 
this dictum of Rix LJ in Stribog at para 129:  
"Seventhly, there is nothing in the ECJ or English jurisprudence to support the 
judge's approach in this case. It is possible that the introducti on of entirely 
new causes of action or parties is to be recognised as the bringing of entirely 
new proceedings, so that the timing of seisin (the article 30 question) has to be 
looked at from that point of view, as occurs for the purposes of article 27. 
Even so, it is not clear to me that in this connection article 27 and article 28 
work in the same way: for article 27 is worded in terms of the bringing of 
actions with the same parties and the same cause of action ('Where 
proceedings … are brought in the co urts') whereas article 28 is worded in 
terms of the pendency of related actions ('Where related actions are pending in 
the court') (emphasis added). That emphasises that the article 28 question is 
asked with relation to pending actions, and not, as the art icle 27 question is 
asked, with relation to the bringing of actions. In any event, the judge is in my 
respectful judgment mistaken to think that any amendment is analogous to the 
bringing of new causes of action or the addition or substitution of new 
parties." 
85. For my part, I would not accept that approach as applied to Article 28. In para 
68 above I referred to the statement of Rix LJ at para 84 of Stribog. In para 63 
of his judgment in the instant case Longmore LJ quoted para 84, where Rix LJ 
said that, wh ere proceedings are amended to add new claims, the court is only 
seised of the relevant proceedings so far as the new claims are concerned at 
the time of the amendment. Immediately after the quote, Longmore LJ 
correctly pointed out that those observations were made in relation to Article 
27 and not Article 28. He then quoted the second sentence from the above 
quotation from para 129 of Rix LJ's judgment.  
86. Longmore LJ then asked whether this tentative expression of view in relation 
to "the introduction of entirely new causes of action" being tantamount to "the 
bringing of entirely new proceedings" means, for the purpose of this case, that 
the Greek courts are to be regarded as first seised of the relevant related 
action? He said at para 64 that, in his opin ion it did not. He gave two reasons. 
He said that in the first place Rix LJ had already quoted the passage from the 
judgment of Saville LJ in The Happy Fellow which I set out in para 66 above.  
87. At para 65 Longmore LJ said that, in the second place, Rix LJ provided his 
tentative response to his tentative view in the remainder of paragraph 129 
which he then quoted. That response is to my mind telling. Longmore LJ then 
expressed his conclusion at para 66. He expressed doubt about Rix LJ's 
distinction between e ntirely new causes of action as opposed to partially new 
causes of action. However that may be, his conclusion seems to me to be 
contained in the last two sentences of para 66:  
"As Saville LJ said in The Happy Fellow it is a misreading of Article 28 to as k 
which court is first seised of 'issues'; it must likewise be wrong in an Article 
28 context to ask which court is first seised of 'causes of action'. That is 
Article 27 territory because, for the purpose of Article 28, one has to ask 
which court is first  seised of an action, not a cause of action and, still less, an 
issue."  
88. On that basis Longmore LJ concluded at para 67 that, if the original English 
action and the subsequent Greek actions are related, as he concluded they are, 
it was the English court tha t was the court first seised. I agree. First, the 
contrary view seems to me to be inconsistent with the two stage approach to 
Article 28 adopted in Stribog. As Longmore LJ observed at para 66, in the 
context of Article 28 it is wrong in principle to ask wh ich court is first seised 
of a cause of action, because Article 28 is concerned with related actions as a 
whole. Secondly, I would accept the appellants' submission that on the facts of 
this case the claims now brought are not (as Rix LJ put it) entirely n ew. On the 
contrary, applying the "broad and common sense approach" favoured by Lord 
Saville in Sarrio, the claims now brought by the appellants are unquestionably 
"related" to the original action within the meaning of Article 28.  
89. I would only add in conc lusion that it seems to me that it would be very odd 
indeed if a court which is seised of proceedings and stays those proceedings 
by way of a Tomlin order on the express terms that it retains jurisdiction to 
take further steps by way of implementation or p olicing of the order were 
prevented from exercising that jurisdiction, either by lifting the stay or 
otherwise, on the ground that it was no longer seised of the proceedings. It 
seems to me to be at least arguable that those steps should properly be treate d 
as part of the existing proceedings. They might perhaps be treated as part of 
the same "procedural unit" as discussed by the CJEU in Purrucker v Valléz -
Pérez (No 2) (Case C -296/10) [2011] Fam 312  at para 80. The case was on 
very different facts but was concerned with two paragraphs in a regulation 
which were identical to Articles 27 and 30 of the Regulation. In any event to 
treat the enforcement action as som ething entirely new seems to me to be 
wrong.  
90. It is never easy to decide what is an entirely new claim, what is a new claim 
and what is an expansion of an old claim. These claims are not new or entirely 
new because they are brought by way of enforcement of  the outcome of the 
original dispute, in the same way as execution on a money judgment. In these 
circumstances it makes sense to hold that these claims, which largely arise out 
of the settlement agreements, arise out of the attempts made by the 
respondents  to avoid the effect of those agreements and, in particular, the 
exclusive jurisdiction agreements. This solution would, as I see it, be 
consistent with the overall policy of the Regulation to avoid a multiplicity of 
proceedings. However, I can see that th ere is scope for argument under this 
head and, if the issue of first seised were critical to the decision, it might be 
appropriate to refer an appropriate question to the CJEU. I therefore turn to the 
issue of discretion on the assumption that the English court is second seised 
for the purposes of Article 28.  
Discretion  
91. On that assumption, the question arises whether the action or actions should be 
stayed as a matter of discretion. The judge held that no such stay should be 
granted. Given that the shape of  the case has changed considerably since the 
matter was before the judge, it appears to me that this Court should consider 
for itself whether to grant a stay. I have reached the clear conclusion that it 
should not. I have reached that conclusion essentiall y for the reasons advanced 
on behalf of the appellants. They may be summarised in this way.  
92. In Owens Bank Ltd v Bracco (Case C -129/92) [1994] QB 509 , at paras 74 -79, 
Advocate General Lenz identified a number of factors which he thought were 
relevant to the exercise of the discretion. They can I think briefly be 
summarised in this way. The circumstances of each case are of particular 
importance but the aim of Article 28 is to avoid parallel proceedings and 
conflicting decisions. In a case of doubt it would be appropriate to grant a stay. 
Indeed, he appears to have approved the proposition that there is a strong 
presumption in favour of  a stay. However, he identified three particular factors 
as being of importance: (1) the extent of the relatedness between the actions 
and the risk of mutually irreconcilable decisions; (2) the stage reached in each 
set of proceedings; and (3) the proximit y of the courts to the subject matter of 
the case. In conclusion the Advocate General said at para 79 that it goes 
without saying that in the exercise of the discretion regard may be had to the 
question of which court is in the best position to decide a gi ven question.  
93. On the facts here those questions can be considered together. As I see it, the 
issues are not dissimilar from those considered by Cooke J in Primacom at 
para 65, where he said this:  
"Even if I had found that these two sets of proceedings an d the German 
proceedings were related within the meaning of article 28, 'the strong 
presumption' which 'lies in favour of the applicant' on an application for a stay 
would be overridden here by virtue of the terms of the SSFA. Although the 
ECJ decision in Gasser means that a stay is mandatory where article 27 
applies, there is no reason why weight should be given to that decision in the 
context of article 28, where a discretion is given to the court, the jurisdiction 
of which has been agreed by the parties as exclusive. It is nothing to the point 
that an English court could not have issued an anti -suit injunction to prevent 
the German proceedings (as per C -159/02 Turner v Grovit [ [2005] 1 AC 
101]). The injustice of giving precedence to proceedings brought in breach of 
an exclusive jurisdiction clause where the parties have agreed that England is 
the appropriate forum is self -evident. To  breach the clause and to gain the 
benefit of priority for the German courts by such breach offends justice, where 
the court has a discretionary decision to make."  
94. In my opinion, similar considerations apply here. Although the true 
construction of the set tlement agreements and the question whether Starlight 
and OME are in breach of them is ultimately a matter for the court which 
finally determines the summary judgment application or for the court at trial, 
there is a strong argument (to put it no higher) t hat the Greek proceedings have 
been brought by Starlight and OME in breach of the settlement agreements, 
which are subject to the exclusive jurisdiction of the English courts and/or in 
breach of the exclusive jurisdiction clauses in the insurance contracts .  
95. I would reject the submission that those considerations are impermissible in 
the light of the decision in Gasser. It was there held that, if the criteria for 
ordering a mandatory stay under Article 27 are satisfied, then the court second 
seised must sta y its proceedings even if the court second seised has 
jurisdiction under an exclusive jurisdiction clause falling within Article 23. 
That conclusion was reached on the basis that, under Article 27, where there 
are two sets of proceedings which involve the same cause of action and the 
same parties, the court second seised is obliged to order a stay. The Regulation 
only permits one set of proceedings to continue. The position is quite different 
under Article 28, which clearly contemplates that where there are  two related 
sets of proceedings they may proceed in parallel. That conclusion follows 
from the proposition that the grant of a stay is discretionary and not 
mandatory. In these circumstances, I can see no reason why, in exercising that 
discretion under Ar ticle 28, the court second seised should not take into 
account the fact that the parties had previously agreed (or arguably agreed) an 
exclusive jurisdiction clause in favour of that court. On the contrary, 
depending upon the circumstances of the particula r case, that seems to me to 
be likely to be a powerful factor in support of refusal of a stay. After all, 
Recital 14 expressly provides:  
"The autonomy of the parties to a contract, other than an insurance, consumer 
or employment contract, where only limited autonomy to determine the courts 
having jurisdiction is allowed, must be respected subject to the exclusive 
grounds of jurisdiction laid down in this Regulation."  
96. There is a close relationship between the claims in England and the subject 
matter o f the claims in Greece. The natural court to consider the issues raised 
by the CMI and the LMI is the High Court in England because they raise 
contractual questions governed by English law and because it is at least 
arguable that the parties have agreed th at they should be decided by the High 
Court, where the proceedings are more advanced than in Greece. After all, the 
judge granted summary judgment as long ago as December 2011. The court in 
Greece will then have the benefit of the decision of the court whi ch, in the 
Advocate General's language, is in the best position to decide these issues. 
Once there is a final judgment of the English courts, it will be recognisable in 
Greece, as elsewhere in the EU and will assist the Greek court. In this way, the 
princi ples of mutual trust upon which the Regulation is founded will be 
respected and there will be no risk of irreconcilable judgments.  
97. In these circumstances I would uphold the decision of the judge in refusing a 
stay under Article 28. There is no need for a reference to the CJEU because 
the question I would have referred does not arise given my conclusion on the 
exercise of discretion. It was at one time suggested that there is a referable 
question as to whether Article 28 gives the court second seised a choi ce 
between staying the proceedings under Article 28(1) and declining jurisdiction 
under Article 28(2). However, that suggestion was abandoned before the 
hearing. I would in any event have rejected it as unarguable. There is no 
support whatever for it in th e language of Article 28 and none of the sources 
referred to supports the conclusion. The discretion is to stay or not to stay 
under Article 28(1) and to decline or not to decline jurisdiction under Article 
28(2). The Court may thus both refuse to stay and  refuse to decline 
jurisdiction. As the Advocate General explained in Bracco, all depends upon 
the circumstances.  
Too late?  
98. The remaining question is whether the Court of Appeal was wrong to reject 
submissions made on behalf of the appellants that it was too late for the 
respondents to rely upon Article 27. This is another part of the case where the 
facts seem to me to be startling. The appeal on this point is brought by the 
LMI and not the CMI but it is I think accepted that, if the appeal succeeds, the 
CMI will be able to take advantage of it. The most important point raised by 
this part of the appeal is whether the courts had a discretion to hold that the 
LMI should not be permitted to rely upon various procedural acts and 
omissions on the part of the re spondents in response to their attempt at a late 
stage to rely upon Article 27 of the Regulation or whether, once the point was 
brought to its attention, the Court of Appeal was bound to consider Article 27 
(as quoted at para 24 above) because it expressly  provides that, where the 
conditions are satisfied "any court other than the court first seised shall of its 
own motion stay its proceedings until such time as the jurisdiction of the court 
first seised is established".  
99. I have reached the conclusion that the answer is that the appellants were 
entitled to rely upon the acts or omissions of the respondents and that, having 
regard to what had happened before Judge Mackie QC and the judge, the 
Court of Appeal was not bound to take the point of its own motion. Moreover, 
subject to a possible reference, I would hold that the Court of Appeal should 
have considered the acts or omissions of the respondents and have held that it 
was too late for the respondents to rely upon Article 27. The question of the 
scope of th e Court of Appeal's duty to take the point of its own motion in 
circumstances of this kind is however an important point on the construction 
of Article 27 and, if it were necessary for the determination of the appeal, I 
would refer it to the CJEU. However,  if the LMI abandon their claim or claims 
for a declaration of non -liability a reference will not be necessary for the 
determination of the appeal. If they do not, my present view is that it will.  
100. The relevant chronology, which I take from the Statement o f Facts and 
Issues, is briefly as follows. I will omit references to the CMI proceedings, in 
which the applications were heard at the same time as those in the LMI 
proceedings. By application notice dated 3 August 2011, the LMI applied for 
wide ranging rel ief against Starlight to enforce the LMI settlement agreement. 
By application notice dated 18 August 2011 the LMI sought permission to join 
OME and to serve OME out of the jurisdiction. As explained earlier, the LMI 
commenced 2011 Folio 
 702
  against Starlight and OME in order to enforce 
the LMI settlement agreement. They also commenced 20 11 Folio 1043 only 
against the co -assureds, which was an action founded solely on the exclusive 
jurisdiction clause in the policies.  
101. On 20 September 2011 the LMI obtained permission from Judge 
Mackie QC to issue a Part 20 claim against OME in 2006 Folio 8 15 and, lest it 
be needed, to serve that Part 20 claim form and the claim forms in 2011 Folios 
702
  and 1043 out of the jurisdiction and to serve them on Lax & Co in 
London. The applications were supported by a witness statement by their 
solicitor, Mr Zavos, in which he referred both to possible stays under Article 
27 and Article 28 givi ng reasons why stays should not be granted. The orders 
gave notice to each of Starlight, OME and the co -assureds that:  
"You may apply within seven days after the date of service of this Order on 
you to have the Order set aside or varied. This time limit d oes not apply to an 
application to dispute the jurisdiction of the Court in respect of which the 
procedure in CPR Part 11 as modified by CPR Part 58 applies"  
No such application was made.  
102. Starlight did not serve evidence within the time provided in the CPR . 
However, on 4 November 2011 they served evidence which included an 
express request by Mr Crampton of Lax & Co that the relief sought by the 
appellants on the merits be denied, alternatively that the matter be referred to a 
full trial, with provision for disclosure and exchange of witness and expert 
evidence. On 7 November Starlight, OME and the co -assureds each filed a 
defence on the merits in the relevant action, having first obtained an extension 
of time for doing so.  
103. Each of the defences included a pa ragraph which stated:  
"The claims in the Greek Proceedings fall outside the jurisdiction clause in the 
policy and the jurisdiction clause in the Settlement Agreement. It is 
respectfully denied therefore that the High Court of Justice of England and 
Wales has jurisdiction to determine the claims in the Greek Proceedings"  
104. The grounds on which Starlight, OME and the co -assureds opposed the 
appellants' claims and applications for summary relief, were in summary that 
the claims brought in the Greek proceedings  (1) did not fall within the scope 
of the releases contained in the LMI settlement agreement or the CMI 
settlement agreement; (2) did not fall within the scope of the indemnities 
contained in the settlement agreements; and (3) did not fall within the scope  of 
the jurisdiction clauses contained in the settlement agreements or in the 
policies.  
105. Following service of the defences, the LMI applied for summary 
judgment in all the actions and all the applications were fixed to be heard on 
28 and 29 November at the same time as the application for summary relief 
against Starlight in the 2006 proceedings. In their skeleton argument prepared 
for those hearings, which were served on 23 November 2011, the L MI 
included the following:  
"71. There has been no application for a mandatory stay under Article 27 of 
the Judgments Regulation in respect of the [LMI's] claims to enforce the 
jurisdiction clause in the contract of insurance, and to enforce the terms of t he 
[LMI] Settlement Agreement. This is (no doubt) because the claims are 
different claims from the claims advanced by the Assureds in Greece."  
106. On 25 November 2011, Starlight, OME, and the co -assureds, through 
their former counsel, James Drake QC and Emma Hilliard, provided their 
skeleton argument to the court, which expressly disavowed any application 
under Article 27, in these terms:  
"69. It is well -established that in order for Article 27 to operate there must, 
when comparing the two sets of proceedings  in issue, be three identities: of 
parties, of "cause", and of "objet": see generally Briggs & Rees, Civil 
Jurisdiction and Judgments (5th ed 2009) at paras 2 -227 to 2 -231. 
70. Starlight does not here contend that t here is here an identity of 'cause' and 
'objet' between the Greek proceedings and the Insurers' applications. Although 
designed to preclude ' in so far as possible, and from the outset ' a clash of 
verdicts, the operation of Article 27 (as distinct from Arti cle 28) is highly 
restricted in its actual operation. Comparison must be made between the 
claims made in the two actions, regardless of possible defences, to see whether 
they proceed on essentially the same facts and under the same rule of law."  
In the foo tnotes they referred to the cases I have discussed earlier, including 
Gubisch, Gantner and The Tatry.  
107. It is thus plain that before the matter came before the judge the 
respondents had made a clear and reasoned decision not to rely upon Article 
27. Moreover , there is no reason to think that the judge did not consider the 
points they made and accept them. They relied only on Article 28. They did so 
pursuant to an application made by application notice dated 24 November 
2011. However that application was out o f time. So, by further application 
notices in each action dated 28 November 2011, the respondents applied for 
permission to make the Article 28 application out of time, and for relief from 
sanctions pursuant to CPR Part 3.  
108. The sanction referred to was tha t imposed by CPR Part 11, which 
provides that a defendant who files an acknowledgment of service and fails to 
apply to the court within the time allowed under the CPR for an order 
declaring that it has no jurisdiction or should not exercise any jurisdictio n 
which it may have, "is to be treated as having accepted that the court has 
jurisdiction to try the claim": CPR rule 11(5).  
109. As stated in para 19 above, the judge dismissed the stay application 
under Article 28 and held that the appellants were entitled t o summary 
judgment. He held that (1) each of the claims made by Starlight, OME, and the 
co-assureds against the appellants in Greece is in breach of the exclusive 
English jurisdiction agreement in the policies; (2)  each of the claims made by 
Starlight and OME against the appellants in Greece is in breach of the 
jurisdiction agreements in the settlement agreements which provide for 
exclusive English jurisdiction; (3) each of the claims made by Starlight and 
OME against the appellants in Greece is in breach o f the terms of the 
settlement agreements; (4) each of Starlight, OME and the co -assureds is 
liable in damages to the insurers for breach of contract and under Section 50 of 
the Senior Courts Act 1981; and (5)  each of Starlight and OME is bound to 
indemnif y and hold the insurers harmless against each of the claims in the 
Greek proceedings pursuant to the indemnities in the settlement agreements.  
110. The judge handed down his judgment on 19 December 2011 and fixed 
2 February 2012 for the hearing of consequentia l applications. In the 
meantime, on 7 December 2011 Thomas Cooper had replaced Lax & Co as the 
respondents' solicitors. On 24 January 2012 draft grounds of appeal were 
served which included for the first time reliance on Article 27. They were 
considered in  a somewhat amended form by the judge. The judge granted 
permission to appeal on a number of grounds including the Article 27 point. 
As to that he said that he would not have given permission on that point alone, 
as he put it, "not least because the Articl e 27 case could become the subject of 
an independent application at first instance at any time hereafter". He 
recognised that this would have the effect of turning the Court of Appeal into a 
first instance court but concluded that it could be argued withou t the need for 
further evidence and without a great addition of time.  
111. In the Court of Appeal the appellants relied upon the provisions of 
CPR Part 11, but the Court of Appeal held that it did not apply because 
applications under Articles 27 and 28 are not  challenges to the jurisdiction. It 
further held that it was bound to take the Article 27 point of its own motion. 
The LMI say that the Court of Appeal was wrong on both points.  
112. CPR Part 11 provides, so far as relevant as follows:  
(1) A defendant who wis hes to - 
(a) dispute the court's jurisdiction to try the claim; or  
(b) argue that the court should not exercise its jurisdiction,  
may apply to the court for an order declaring that it has no such jurisdiction or; 
should not  
exercise any jurisdiction which it may have.  
(2) A defendant who wishes to make such an application must first file an 
acknowledgment of service in accordance with Part 10.  
(3) A defendant who files an acknowledgment of service does not, by doing 
so, lose any right that he may have to dispute the court's jurisdiction.  
(4)An application under this rule must - 
(a) be made within 14 days after filing an acknowledgment of service; and  
(b) be supported by evidence.  
(5) If the defendant - 
(a) files an acknowledgme nt of service; and  
(b) does not make such an application within the period specified in paragraph 
(4), 
he is to be treated as having accepted that the court has jurisdiction to try the 
claim.  
(6) An order containing a declaration that the court has no juri sdiction or will 
not exercise its jurisdiction may also make further provision including - 
(a) setting aside the claim form;  
(b) setting aside service of the claim form;  
(c) discharging any order made before the claim was commenced or before the 
claim form  was served; and  
(d) staying the proceedings.  
113. In an action in the Commercial Court such as this CPR 11(4) is varied 
by CPR 58.7(2) so that the application under CPR 11(1) must be made within 
28 days after filing an acknowledgment of service and not 14 days . As I 
understand it acknowledgments of service were filed in each case.  
114. The position under CPR Part 11 is different from the position under the 
former Rules of the Supreme Court, under which the equivalent rule, namely 
RSC Order 12 rule 8(1), did not inc lude an application for a stay. By contrast 
CPR 11(1)(b) applies to an application for an order that the court should not 
exercise its jurisdiction. An application for a stay is precisely that. An 
application for a stay under Article 27 is thus an applicat ion within CPR 
11(1)(b). The applicant must file an acknowledgment of service and must 
make an application within 28 days. The respondents did not do that. Nor did 
they seek an extension of time to so do within the CPR. It is arguable that the 
effect of CP R 11(5) is that their failure to do so means that they are treated as 
accepting that the court both has jurisdiction and that it is free to exercise it. 
The difficulty is that the wording of paragraph (5) may only relate to the 
existence of the jurisdictio n rather than the exercise of it. This point was left 
open in Texan Management Ltd v Pacific Electric Wire & Cable Company Ltd 
[2009] UKPC 46  at paras 68 and 69.  
115. However that may be, the LMI rely upon the voluntary submission to 
the jurisdiction evidenced by the acknowledgment of service and the service 
of a defence. They also rely upon the clear and unequivocal statement of the 
respondents' position in their skele ton argument before the judge. It is plain 
from the terms of the concession quoted at para 106 above that serious thought 
had been given to the question both of whether to make the concession and of 
the basis on which it was to be made. In these circumstan ces, unless there is 
some rule of European law to the contrary, it appears to me that the Court of 
Appeal should have considered whether, in the exercise of their discretion to 
permit argument on a new point, they should exercise that discretion in favour 
of the respondents or not. Moreover, it appears to me that, given the clear 
basis on which the concession was made and, given that the judgment had 
proceeded on that basis, the Court of Appeal should have held that it had a 
discretion under CPR rule 11(1) to permit an application under the rule to be 
made out of time but should have refused to exercise it.  
116. However it is said that on the true construction of Article 27, the court, 
including on these facts the Court of Appeal, has a duty to consider the 
application of Article 27 of its own motion whenever the point is taken. This 
strikes me as extremely improbable. I would accept the submissions of the 
LMI in this respect.  
117. The CJEU has recognised the importance of national rules of 
procedure. Thus, for examp le, in Shevill v Presse Alliance SA (Case C -69/93) 
[1995] 2 AC 18  the CJEU said:  
35. ... the object of the [Brussels] Convention is  not to unify the rules of 
substantive law and of procedure of the different contracting states, but to 
determine which court has jurisdiction in disputes relating to civil and 
commercial matters in relations between the contracting states and to facilitat e 
the enforcement of judgments: see Kongress Agentur Hagen G.m.b.H v. 
Zeehaghe B.V. (Case C -365/88) [1990] ECR I -1845 , 1865, para. 17. 
36. Moreover, the court has consistently held that, as regards procedural rules, 
reference must be made to the national rules applicable by the national court, 
provided that the application of those rules does not impair the effectiveness of 
the Convention: paragraphs 19 and 20 of [Kongress Agentur Hagen G.m.b.H. 
v. Zeehaghe B.V. (Case C -365/88) [1990] ECR I -1845 ]." 
118. I would accept the LMI's submission that Article 27 is part of 
European law and overrides national law which is incompatible with it. It does 
not however follow from this proposition that English procedural rules were 
overridden. A national procedural rule mus t not impair the effectiveness of 
Article 27. It must not render the exercise of rights conferred by EU law 
impossible or excessively difficult: Amministrazione delle Finanze dello Stato 
v SpA San Giorgio (Case 199/82) [1983] ECR 3595 , [1985] 2 CMLR 658 . 
This is  the principle of effectiveness, which involves considering whether the 
rule can operate consistently with Article 27, or whether it is incompatible 
with it. The procedural rule should not be less favourable than those governing 
similar domestic actions, w hich is the principle of equivalence: see eg Interfact 
Ltd v Liverpool City Council [2011] QB 744 , Kapferer v Schlank and Schlick  
GmbH (Case C -234/04) [2006] ECR I -2585  at paras 19 to 22, Köbler v 
Austria (Case C -224/01) [2004] QB 848 ; and Eco Swiss China Time Ltd v 
Benetton International NV (Case C -126/97) [1999] ECR I -3055 .  
119. I refer only to Interfact , where the Court of Appeal refused to exercise 
its discretion to allow cases to be reopened under CPR 52.17, so as to give a 
remedy for infringement of a provision of European law. Lord Judge CJ, 
delivering the judgment of the Court of Appeal, said :  
"41 In general, EU law does not require national courts to disapply their own 
procedural rules in order to secure the vindication of EU rights. In Kapferer v 
Schlank & Sch ick GmbH … the Austrian Supreme Court was seised of an 
appeal in which the respondent had failed to lodge within the time stipulated a 
respondent's notice taking a point on jurisdiction under the Brussels 
Convention. The court referred to the Court of Just ice the questions whether it 
was, nevertheless, bound to take the point of EU law of its own motion and 
whether EU law required a national court to review and set aside a final 
judicial decision in circumstances where it later became apparent that the 
decision of the court was in breach of EU law. The Court of Justice held that a 
national court is not so bound …  
44 ...[Kapferer] establishes as a matter of general principle that EU law does 
not require a national court to reopen a final judicial decision, ev en if failure to 
do so would make it impossible to remedy an infringement of a provision of 
EU law: see the Kapferer case, at para 21; Amministrazione dell'Economia e 
delle Finanze and Agenzia delle Entrate v Fallimento Olimpiclub Srl (Case C -
2/08) [2009] ECR I -7501 , para 23; Asturcom Telecommunicaciones SL v 
Rodríguez Nogueira (Case C - 40/08) [2010] 1 CMLR 29  para 37...  
49... The Court of Justice has upheld national time limits and limitation 
periods on grounds of legal certainty and the need to ensure finality in 
decision making, even though the effect has been to preclude enforcement of 
an EU law right: see, for example, Palmisani v Istituto Nazionale della 
Previdenza Sociale (INPS) (Case C -261/95) [1997] ECR I -4025 ; Fantask A/S 
v Industriministeriet (Ehrvervsministeriet) (Case C -188/95) [1997] ECR I -
6783 ." 
120. Finally, I would accept these submissions made by the LMI. Under 
English law a final judgment on the merits sho uld not be set aside without 
very solid grounds: Brown v Dean  [1910] AC 373 at 374, per Lord Loreburn. 
Interest republicae ut sit finis litium. This is part of the common tradition of 
the legal systems of the Member States: Rewe -Zentralfinanz eG and Rewe - 
Zentral AG v Landwirtschaftskammer für das Saarland (Case C -33/76) [1976] 
ECR 1989 . As quoted above, in Interfact the Court of Appea l rejected the 
argument that, where an appellate court has a discretion to exercise under 
national procedural law to allow a final judgment to be challenged on appeal, 
it must exercise that discretion so as to remedy the infringement of EU law.  
121. In my judg ment, there is no sensible basis upon which it can be said 
that the time limit under CPR 11(4), which can in an appropriate case be 
extended under CPR 3.1(2)(a), is contrary to EU law. The time limit satisfies 
the principle of equivalence because it is the  same rule that applies in all cases. 
It fulfils a legitimate aim, namely making sure that points going to whether the 
proceedings are to be tried on their substantive merits in England are taken 
promptly and without unnecessary costs. It satisfies the pri nciple of legal 
certainty because parties need to know where they stand. The absence of a 
time limit would allow a litigant to take the point years afterwards. Moreover, 
the time limit does not render the right to apply for a stay under Article 27 (or 
Article 28) impossible or excessively difficult to exercise. It allows sufficient 
time for the point to be raised, especially given the express rule permitting an 
extension of time in appropriate cases.  
122. As to the expression "of its own motion" in Article 27, there are a 
number of different parts of the Regulation that have a similar provision. On 
the facts here the potential for a stay under Article 27 was before the courts on 
at least two occasions. The position was explained to Judge Mackie QC on the 
without  notice application referred to above. There is no reason to think that 
he did not give consideration to the position. More importantly perhaps the 
position was explained to the judge in the skeleton arguments to which I have 
referred. He was given both re asons and authority on the question whether a 
stay should be granted under Article 27. It seems to me that the judge was 
entitled to accept those submissions, which were made on the respondents' 
behalf by experienced counsel and solicitors.  
123. For these reas ons I would hold that the Court of Appeal should have 
refused to allow the respondents to rely upon Article 27 in the Court of 
Appeal. That said, I would accept that the meaning and effect of the duty to 
consider Article 27 of its own motion are matters of  some potential importance 
and I have (somewhat reluctantly) reached the conclusion that they are not 
acte clair . I would therefore refer an appropriate question to the CJEU if it 
were necessary in order to resolve the appeal. If the appellants abandon the  
claims to the declarations referred to in paras 58 and 59 above, such a 
reference will not be necessary because, for the reasons given above, I would 
allow the appeals under Article 27 in their entirety.  
124. It seems to me that rather different consideration s apply to Article 28 
and that the Court of Appeal were entitled to consider Article 28 as part of the 
appeal from the decision of the judge who had considered it in detail.  
CONCLUSIONS  
125. For these reasons I would invite the CMI and the LMI to consider 
whet her they wish to pursue their claims for declarations (referred to in paras 
58 and 59 above) that the Greek claims fall within the terms of the release in 
the settlement agreements or that under the agreements the tort claims have 
been settled. As Lord Neu berger observes, those are the claims described in 
para 18(a)(1)(i), 18(a)(2)(i) and 18(b)(i) above. They should indicate their 
position within 14 days of this judgment being handed down. If they persist in 
their claims, some limited questions should be re ferred to the CJEU as 
described above. The decision whether to stay those claims would then await 
the result of the reference, although I would allow the appeal under Article 27 
in respect of the other claims. If they abandon them, I would allow all the 
appeals of both the CMI and the LMI under Article 27. I would in any event 
dismiss the respondents' cross -appeal under Article 28 and I would hold that 
their application for a stay under Article 28 should be refused as a matter of 
discretion. The parties sho uld make written submissions on the form of order 
and costs within 21 days of the handing down of this judgment. Finally, I 
would like to thank all counsel and solicitors for their assistance in this 
unusual and in some respects difficult case.  
LORD NEUBE RGER  
126. Subject to one point, I entirely agree with Lord Clarke's reasoning and 
conclusions. The one point concerns the issue discussed in paras 44 -46 and 
58-59 of Lord Clarke's judgment and in Lord Mance's judgment. That issue is 
whether (i) LMI's claim in England for a declaration that the Greek claims 
"have been settled", and (ii) CMI's claim in England for a declaration that the 
Greek claims "were compromised" ("the English declaration claims", 
described in para 18(a)(1)(i), 18(a)(2)(i) and 18(b)(i) of Lo rd Clarke's 
judgment) should be stayed under Article 27.  
127. In my view, if that issue remains live, it should be referred to the 
CJEU, as I do not regard it as acte clair .  
128. I see the force of Lord Clarke's view that the English declaration 
claims do not have "le même objet et la même cause", if one gives that 
expression a very narrow effect. I also accept that, particularly in the light of 
the existence of Article 28, there is good reason to give Article 27 a rel atively 
narrow meaning, as Rix J pointed out in Glencore International AG v Shell 
International Trading and Shipping Co Ltd [1999] 2 Lloyd's Rep 692, 697. I 
also accept that the decisions of the CJEU cited by Lord Clarke at paras 26 -28 
of his judgment supp ort the contention that Article 27 has a relatively narrow 
ambit of application.  
129. However, it is also important to appreciate that the fundamental 
purpose of Article 27, as explained by the CJEU, is to ensure that judgments 
obtained in one member state are  enforceable in other member states, and that 
the consequence of this is that one should avoid mutually inconsistent 
judgments. The purpose of Article 27 is to help achieve that end.  
130. It seems to me that, if the Greek court were to give Starlight and OME 
judgment for a particular sum in respect of its Greek claims, and the English 
court were to give judgment in favour of LMI and CMI in the form of a 
declaration that those very claims have been settled or compromised, the two 
judgments would be incompatible as a matter of principle and logic. It is not 
possible for a court to award a claimant damages in respect of a claim which 
has been compromised with the defendant. To put the point another way, to 
say that a defendant currently owes a claimant damages in r espect of a claim 
which the defendant has settled or compromised with the claimant involves an 
illogicality. Accordingly, it seems to me that there is a real case for saying that 
the English declaration claims should be stayed.  
131. The difference between the English declaration claims and CMI's and 
LMI's claims in England for an indemnity and damages for breach of the 
settlement agreements ("the English indemnity and damages claims", as 
described in paras 18(a)(1)(iii), (v) and (vi), 18(a)(2)(iii) and (iv) and  18(b)(ii), 
(iii) and (iv) of Lord Clarke's judgment) may appear to be relatively small, but 
I believe that there is a crucial distinction, as a result of which it is acte clair 
that the English damages and indemnity claims do not fall foul of Article 27. 
The crucial difference is that, if those claims were successful, they could not 
lead to inconsistent judgments in England and Greece.  
132. I accept that, if they were successful, the English indemnity and 
damages claims could be fairly said to neutralise, at a ny rate in commercial 
terms, any benefit to Starlight and OME of a judgment in the Greek claims. 
However, crucially in my view, success for LMI and CMI in the English 
indemnity and damages claims would not be logically inconsistent in any way 
with success for Starlight in the Greek claims. It is not inconsistent (although 
it is commercially pointless) to say that a defendant is liable to pay a claimant 
a sum by way of damages, while the claimant is bound to indemnify the 
defendant in respect of the whole of  that sum (or is bound to pay an equivalent 
sum to the defendant). Indeed, the indemnity is not merely logically consistent 
with the liability: it is positively meaningless without the liability for damages, 
and the liability for damages, though rendered n ugatory by the indemnity, is 
not logically inconsistent with the indemnity.  
LORD MANCE  
General  
133. I am in substantial but not complete agreement with the reasoning and 
conclusions reached in the course of the judgment prepared by Lord Clarke, 
although, ulti mately, as will appear, we agree on the proper disposition of 
these appeals.  
134. The differences between Lord Clarke and myself relate to the 
significance and operation of article 27 of the Council Regulation (EC) No 
44/2001 ("the Brussels Regulation") with r egard to the respondents' Greek 
claims.  
135. I have no difficulty in agreeing with Lord Clarke's conclusions 
regarding the English claims made by CMI and LMI for damages for (i) 
breach of the exclusive jurisdiction clauses in the Settlement Agreements and 
insurance policies and (ii) indemnity under clauses 3 and 4 of the respective 
Settlement Agreements. Such claims do not assert that there is no tort liability 
because of the Settlement Agreements. They assert (i) that the respondents are 
claiming in the wrong jurisdiction and (ii) that the respondents have agreed to 
indemnify them in respect of any tort claims (valid or not) by the respondents 
themselves as well as by others arising from the loss of the vessel.  
136. However, I do not accept the reasoning by which L ord Clarke reaches 
his conclusions with regard to these claims for damages and the further 
"release" claims (as Lord Clarke conveniently calls them) which he addresses 
in paras 40 to 59 of his judgment. This difference becomes important in 
relation to the first head of the release claims, as I shall show.  
137. One strand of Lord Clarke's reasoning is that the English claims based 
on the Settlement Agreements cannot be the mirror image of the Greek tort 
claims, because they involve contract and tort claims and c annot constitute the 
same "cause of action": para 34, third sentence, para 41, second and third 
sentences and para 43, second and last sentences.  
138. Another strand is that it is relevant or conclusive that the English and 
Greek claims do not "interfere" with  each other, and, in particular, that the 
Greek claims do not "impugn" the settlement agreements: para 35, first and 
second sentences and para 37, in its entirety.  
139. Neither of these strands of reasoning is in my opinion sustainable, for 
reasons which I will explain.  
The release claims  
140. The release claims need a little analysis. There are three heads. The 
first head is summarised by the respondents themselves and by Lo rd Clarke 
(para 18(a)) as involving claims for declarations that the Greek claims fall 
within the terms of the release. But this head is in fact pleaded by LMI as a 
claim for a declaration that the Greek claims "have been settled" (application 
notice, para  (1) 1 and 3), while CMI plead that the Greek claims "were 
compromised" (particulars of additional claim, para 10) and follow this with a 
claim for a declaration that the Greek claims fall within clause 2 of the CMI 
Settlement Agreement (particulars of add itional claim, para 27(a)). These are 
clear statements (right or wrong as they may prove to be) that the Greek 
claims have been settled or compromised within the terms of the Settlement 
Agreements.  
141. The second and third heads are claims for a declaration t hat the 
bringing of the Greek claims was a breach of the release in each of the 
Settlement Agreements and for damages for such breach. They must stand or 
fall together. They raise different considerations from the first head.  
The first head of release cla im 
142. The English claims that the Greek claims "have been settled" or "were 
compromised" are in my opinion mirror images of the Greek tort claims. The 
English pleas mean, and can only mean that the English claimants are not 
liable for the Greek tort claims. T he legal effect of these English statements is 
(under English eyes and, I am confident, European law) that the Greek claims 
are no more. If an English court were to give a judgment to that effect, and 
there was no prior Greek judgment or other reason for n on-recognition, the 
Greek court ought under the Brussels Regulation to accept it.  
143. It cannot make any difference to the application of article 27 that the 
reason for non -liability is a contractual settlement agreement. The only point 
of enforcing the contr act is to show that there are no valid Greek tort claims. 
The Greek claims aim to enforce tort liabilities. The first head of the English 
claims aims to establish that there are no such valid tort liabilities, because 
they have been settled. The Greek and English claims cannot stand together.  
144. The concepts used in article 27 (such as "cause of action" or the 
concept of "same object" which one must read into the English text) are 
autonomous European concepts: Gubisch v Palumbo  Case 144/86, BAILII: 
[1987] EUECJ R -144/86 , [11] and The Tatry Case C -406/92, BAILII: [1994 ] 
EUECJ C -406/92 , [47]. In the latter case, the European Court of Justice said 
that "the 'cause of action' comprises the facts and the rule of law relied on as 
the basis of the action" and that "the 'object' of the action" for the purposes of 
article [27] means "the end the action has in view" [39] -[41]. An analysis of 
the cases helps to understand what was meant.  
145. Gubisch v Palumbo happened to concern a situation where the mirror 
image claims were in a general sense contractual. The German claim was for 
the price of machinery delivered. The later Italian claim by the buyer was, 
firstly, that there was no liability because he had revoked his offer before it 
had reached the seller for acceptance – strictly, this was not a contractual 
claim, but a claim that t here was no contract – and, secondly, that, if there was 
a contract, his consent was vitiated and the contract should be set aside for 
mistake or on the ground of the seller's fraud, or, thirdly, that any contract had 
been discharged on account of the sell er's late delivery.  
146. Both the question referred and the Court of Justice's summary of the 
facts embraced all three aspects of the Italian claim: see e.g. judgment [2] and 
[4]. The subsequent reasoning and the answer given refer to mirror image 
claims, one seeking enforcement, the other seeking rescission or discharge, of 
a contract: see [13] and [15] and the Court's answer. The Court said [17] that 
"it must be held that the two actions have the same subject -matter, for that 
concept cannot be restricted so a s to mean two claims which are entirely 
identical". The absence of express reference at these points to the first Italian 
claim (that no contract had ever been concluded) cannot mean that the Court 
was drawing any distinction between that claim and the oth er two. On the 
contrary, the inference is that it saw it as posing no different issue.  
147. It could not have made any difference to the Court of Justice's 
conclusions if, instead of or in addition to some or all of the pleas actually 
made in the Italian proce edings, the Italian claimants had alleged that the 
contract had been rescinded or discharged under some separate subsequent 
agreement, whether, for example, by novation or by some compromise 
relating to the parties' past dealings or outstanding issues. Nor , in a situation in 
which concurrent contract and tort claims are possible (see e.g. Henderson v 
Merrett Syndicates Ltd [1994] UKHL 5 ; [1995] 2 AC 145 ), could it be crucial 
to the application of article 27 whether the foreign claim was being pursued in 
contract or tort, when the later English claim a sserted a settlement agreement 
wide enough to cover both.  
148. Lord Clarke cites at para 28(iii) a useful encapsulation by Cooke J in 
JP Morgan Europe Ltd v Primacom AG [2005] 2 Lloyd's Rep 665 , [42], of the 
meaning of the expression "legal rule" or "rule of law" which the Court of 
Justice used in The Tatry Case C -406/92, [39]. Cooke J suggested that, in 
investigating "cause", it was nec essary, after looking at the basic facts, to look 
at "the basic claimed rights and obligations of the parties". Here, the basic 
claimed rights and obligations of the parties are, in Greece, that the English 
claimants are liable in tort, and, in England, un der the first head which asserts 
that the Greek claims have been settled, that there is no or no further liability 
for the Greek claims.  
149. The way in which article 27 was applied in The Tatry is also of 
interest. Having said that the cause of action compris es the facts and the rule 
of law relied on as the basis of the action [39], the Court of Justice went on:  
"40 Consequently, an action for a declaration of non -liability, such as that 
brought in the main proceedings in this case by the shipowners, and another 
action, such as that brought subsequently by the cargo owners on the basis of 
shipping contracts which are separate but in identical terms, concerning the 
same cargo transported in bulk and damaged in the same circumstan ces, have 
the same cause of action."  
Here, the English claim that the Greek claims fall within the release and have 
been settled or compromised concerns, and seeks to negative, the same tort 
claims as the Greek actions seek to enforce.  
150. It can make no diff erence that the Greek claimants have not sought, 
pre-emptively, to refer to, address or "impugn" in their Greek claims a 
possible defence (the Settlement Agreements) that might be raised in the 
Greek proceedings. One would not expect them to do so, any mor e than the 
German claimants in Gubisch v Palumbo addressed or would be expected to 
address every or any of the multiple arguments that the Italian claimants later 
deployed. The fact that the English claims do not seek directly to "interfere" 
with the Greek  claims is also irrelevant. It would anyway be impermissible to 
claim in England an injunction restraining the Greek proceedings, but, quite 
apart from that, article 27 and the principle in Gubisch v Palumbo do not 
depend upon one set of proceedings seekin g directly to prevent another. They 
derive from the principle that Member States must recognise each other's 
judgments, and the aim of avoiding inconsistent judgments.  
151. As to the "same object", the end which the Greek and English 
proceedings have in view i s the same in each case, to decide the issue of 
liability for the torts alleged in Greece. That this is what is meant by the "same 
object" is clear from both Gubisch v Palumbo and The Tatry . The matter is 
directly addressed in the latter case in paras 42 t o 45:  
"42 The question accordingly arises whether two actions have the same object 
when the first seeks a declaration that the plaintiff is not liable for damage as 
claimed by the defendants, while the second, commenced subsequently by 
those defendants, s eeks on the contrary to have the plaintiff in the first action 
held liable for causing loss and ordered to pay damages.  
43 As to liability, the second action has the same object as the first, since the 
issue of liability is central to both actions. The fac t that the plaintiff's 
pleadings are couched in negative terms in the first action whereas in the 
second action they are couched in positive terms by the defendant, who has 
become plaintiff, does not make the object of the dispute different.  
44 As to dama ges, the pleas in the second action are the natural consequence 
of those relating to the finding of liability and thus do not alter the principal 
object of the action. Furthermore, the fact that a party seeks a declaration that 
he is not liable for loss im plies that he disputes any obligation to pay damages.  
45 In those circumstances, the answer to the fifth question is that, on a proper 
construction of Article 21 of the Convention, an action seeking to have the 
defendant held liable for causing loss and o rdered to pay damages has the 
same cause of action and the same object as earlier proceedings brought by 
that defendant seeking a declaration that he is not liable for that loss."  
The reference in [44] to a party's claim for a declaration of non -liability 
implying that it disputes any obligation to pay damages is equally applicable 
to the present English claims that the Greek tort claims fall within the release 
or have been settled or compromised. The English claims imply that the Greek 
claims are disputed.  
152. In short, the issue of liability is central to both the Greek and the 
English proceedings here, as it was to the Dutch and English proceedings in 
The Tatry . Not merely the same cause of action but also the same object is 
involved in the present case, as i t was in The Tatry. The two sets of 
proceedings would, if pursued to judgment, lead to judgments which were 
legally and directly incompatible. It is therefore necessary under article 27 to 
consider whether it is the Greek or the English courts which fall i n this 
connection to be regarded as first seised.  
The second and third heads of the release claims  
153. The second and third heads are more elusive. Claims for a declaration 
that the bringing of the Greek claims was a breach, and for damages for the 
breach, of  the release in the Settlement Agreements may on one view be seen 
as little different from the claims made under the first head. But I have come 
to the conclusion that this would be wrong. The second and third heads 
postulate, and for present purposes at l east we must accept, that the releases 
contain some positive continuing promise which the respondents by their 
Greek claims are now breaching. The terms of the releases were in each case 
(clause 2 in the case of CMI, clause 3 in the case of LMI) that the r espondents 
would accept underwriters' due proportion of the relevant payment "in full and 
final settlement of all and any claims it may have under Policy No. …. against 
the Underwriters in relation to the loss of Alexandros T". One must make the 
assumption , for present purposes, that the Greek tort claims fall within this 
agreement.  
154. The difficulty is that the agreement was performed, in the sense that 
there was not merely an accord, but an accord and satisfaction. All policy 
claims were thus not just agree d to be settled, but they actually were settled, 
and, if and to the extent that that is the nature of the second and third heads of 
English release claim, they would not in reality differ from the first head.  
155. The question therefore arises, what if any out standing promise could 
there be left to perform which the second and third heads claim to enforce? I 
have come to the conclusion that the acceptance of the sums paid "in full and 
final settlement" involves, certainly very arguably, a continuing outstanding  
promise not further to pursue claims of the nature identified in clauses 2 and 3 
respectively.  
156. Even after the settlement, the pursuit of such claims could cause CMI 
and LMI loss. Most obviously, such loss could consist in the costs of 
defending the Greek  claims. If they let the Greek proceedings go undefended, 
it could, subject to issues arising from the potential recognition of any Greek 
judgment under the Brussels Regulation, include the amount of any judgment 
awarded against them in the Greek proceedin gs. Likewise potentially, though 
subject to additional questions arising from any potential issue estoppel or 
application of the rule in Henderson v Henderson (1843) 3 Hare 100 , even if 
they unsuccessfully defended the Greek claims.  
The consequences  
157. Accordingly, the second and third heads of release claims, analysed as 
I have analysed them, are outside the scope of article 27. As regards the first 
head, the remaining issue is whether the Greek or the English courts fall for 
the relevant purpose to be regarded as first seised. In so far as the first head of 
release claims was added into the pre -existing English proceedings by an 
amendment made after the Greek proceedings were  begun, is it to be viewed 
discretely as a new claim of which the English court is second seised? Or does 
it fall to be viewed as part, by amendment, of a single set of English 
proceedings commenced well before any Greek proceedings?  
158. I agree with Lord Clarke at para 60 that a court is only seised of claims 
by or against new parties from the date that those parties are added to the 
proceedings. In relation to the 2006 proceedings, the English court was only 
seised of claims against OME once OME was joined to the proceedings on 20 
September 2011 and, as against OME therefore, the English courts were only 
seised of the first head of release claims made by CMI and LMI in 2011. Since 
the first head of release claims is in my opinion the mirr or image of the Greek 
tort claims, article 27 must, on that basis, apply to preclude the pursuit of the 
first head of release claims as against OME in England.  
159. The respondents submit that article 27 also applies to preclude the 
pursuit in the English proc eedings of the first head of claim against Starlight, 
which was party to the English proceedings from their outset. The Court of 
Appeal accepted this submission. CMI and LMI challenge it. Lord Clarke has 
in his paras 61 to 71 set out and discussed the resp ective submissions.  
160. To my mind, the sense of the Regulation as well as the case law and 
the academic guidance all point in one direction. The chronological priority 
contemplated by the Regulation cannot be gained, or subverted, by the 
addition by amendmen t of a new claim in proceedings otherwise second 
brought (any more than it can be affected by the addition of new claimants or 
defendants, as Lord Clarke accepts: para 60). To the authorities under the 
current Regulation to which Lord Clarke refers, I woul d only add that similar 
thinking is to be found under the predecessor provisions of Article 21 and 22 
of the Brussels Convention in the decisions at both levels in Grupo Torras SA 
v Shekh Fahad Al -Sabah  [1995] 1 Lloyd's Rep 374, 418 -419 (Mance J) and 
[1996] 1 Lloyd's Rep 7 , 24 (CA).  
Conclusion  
161. It follows that the conclusions I would reach, were all the issues to be 
finally decided now , would be that:  
i) The first head of English release claims would be precluded under article 27, 
having regard to what I conclude are in this respect the prior Greek claims.  
ii) All the remaining heads are outside the scope of article 27 and are 
permissi ble. 
It is however necessary to consider whether these conclusions are founded on 
principles of European law which are so clear that no reference to the Court of 
Justice is required.  
A reference to the Court of Justice  
162. In relation to the conclusion express ed in para 161ii, we are all in 
agreement in our conclusions. Any differences in reasoning regarding article 
27 are irrelevant, and no reference is necessary.  
163. As to para 161i, Lord Clarke would reach the opposite conclusion to 
that which I have expressed and he considers in the light of my judgment that 
a reference is called for, if the English appellants persist in their first head of 
release claims. With the latter view I agree. The differences between Lord 
Clarke's and my reasoning are not, I believe, s imple differences regarding the 
application to facts of clear principles of European law. I might by myself 
have thought that all the relevant principles of European law were clear, but I 
certainly do not dissent from the proposition that the differences, being 
material to our respective conclusions, require a reference. If the appellants 
wish to persist in, rather than abandon, the first head of release claims, there 
should accordingly be a reference as Lord Clarke suggests.  
164. Ultimately, therefore, althoug h by different reasoning, Lord Clarke and 
I arrive at the same conclusions regarding the appropriate disposition of these 
appeals.  
Note 1    Toulson LJ noted at paras 74 and 75 that the present state of English law was criticised by the 
Law Commission and the Scottish Law Commission in para 2.87 of a joint consultation paper on 
Insurance Law; Post Contract Duties (LCCP201/SLCDP152) published on 20 December 2011. The 
Commissions have provisionally proposed that the law should be reformed .