Neutral Citation Number: [2015] EWHC 43 (Ch ) 
  Case No: HC 2014 00051 8 
IN THE HIGH COURT OF JUSTICE  
CHANCERY DIVISIO N 
  Royal Courts of Justice  
Strand, London, WC2A 2L L 
  16/01/201 5 
B e f o r e :  
MRS JUSTICE PROUDMA N 
____________________  
Between:  
 
 PLAZA BV  Claimant  
 - and -  
 THE LAW DEBENTURE TRUST 
CORPORATION PLC  Defendant  
____________________  
Gabriel Moss QC and Robert Ham QC (instructed by Harcus Sinclair) for the 
claimant  
Richard Snowden QC, Andrew Clutterbuck QC and Sharif Shivji (instructed by 
Eversheds LLP) for the defendant  
Hearing dates: 29 and 30 October 2014   
_____ _______________  
HTML VERSION OF JUDGMENT
 
____________________  
Crown Copyright ©  
Mrs Justice Proudman :   
1. The defendant The Law Debenture Trust Corporation PLC ("LDTC") seeks an 
order pursuant to CPR Part 11 r 11 (1) staying proceedings brought by Plaza 
BV ("Plaza"). If it should be unsuccessful, it seeks an order under CPR Part 24 
granting summary judgment or, in the alternative, striking out the whole claim.  
2. Mr Moss QC and Mr Ham QC appeared for the claimant and Mr Snowden 
QC, Mr Clutterbuck QC and Mr Shi vji appeared for the defendant.  
Background  
3. LDTC is the trustee of five subordinated bond issues issued by an Australian 
Group of companies, the Bell Group. There are, briefly, two categories of 
subordinated bond issues:  
o Three bond issues ("the BGNV bonds ") issued by Bell Group NV (in 
insolvent liquidation in Curaçao (the place of the principal liquidation) 
and Australia (the place of the ancillary liquidation)), a Dutch Antilles 
Curaçao company. The BGNV bond issues (and also the BGF bond 
issue - see below ) were guaranteed by the Bell Group's holding 
company, The Bell Group Ltd, ("TGBL") on a subordinated basis. 
TBGL's obligations under its subordinated guarantee rank equally with 
TBGL's other present and future subordinated indebtedness.  
o There are two oth er bond issues, one issued by TBGL and one issued 
by Bell Group Finance Pty ("BGF"). Both TBGL and BGF are 
Australian companies in insolvent liquidation in Australia. The 
Insurance Commission of Western Australia ("ICWA") is the sole 
bondholder but not the  sole beneficiary under the trust deeds. The 
senior creditors of TBGL and BGF including BGNV are also 
beneficiaries and they rank in priority to ICWA.  
4. All the trust deeds are governed by English law, all have a non -exclusive 
English jurisdiction clause an d all expressly authorise LDTC to act as trustee 
in relation to bond issues by other companies in the Bell Group.  
5. The claimant ("Plaza") was incorporated in the Netherlands but its address is 
in Curaçao. It is a substantial holder of BGNV bonds. BGNV lent on the 
proceeds of the bond issues to TBGL and BGF. TBGL is also a guarantor of 
the BGNV and BGF bond issues. The loans have not been repaid and BGNV 
is a senior unsubordinated creditor of TBGL and BGF.  
6. Plaza, as beneficiary under the BGNV trust  deeds, has brought proceedings in 
England against LDTC and contends that its claim is both meritorious and 
appropriately brought in this country.  
7. The way the bonds work has been treated in detail by Owen J in his judgment 
in Western Australia in The Bell  Group Ltd (in liquidation) v. Westpac 
Banking Corporation (No 9)  [2008] WASC 239 at [2574] and following. 
However, at the risk of repetition, I propose to explain briefly: (i) the structure 
of the Bell group financing arrangements, (ii) the disputes which  have arisen 
from the insolvency of the Bell Group, (iii) distribution issues arising after 
what has been termed the Main Action, namely an action described in more 
detail below and (iv) Plaza's current claim with which I am concerned.  
The structure of th e Bell Group Financing Arrangements  
8. TBGL undertook to the BGNV bondholders not to create, have outstanding or 
guarantee any other indebtedness for borrowed money other than the BGNV 
bonds convertible into the equity of TBGL unless such indebtedness was 
subordinated and ranked equally in all respects with or junior to the BGNV 
bonds or TBGL's subordinated guarantee of the BGNV bonds.  
9. Accordingly, TBGL could only issue or have outstanding the TBGL bonds or 
guarantee the BGF bonds if those bonds and guarantee  ranked at all times 
equally with or junior to TBGL's subordinated guarantee of the BGNV bonds. 
Thus ICWA's rights as bondholder of the TBGL and BGF issues are 
contractually subordinated through the trust deeds.  
10. Further, as one of the senior creditors of TGBL and BGF, BGNV also benefits 
from a turnover trust. The trust deeds require LDTC to hold any moneys paid 
to it in the winding up of TGBL and BGF on trust to pay out the claims of, 
inter alia, the senior creditors of TBGL and BGF. Owen J in Western Aust ralia 
has held that these provisions create "a presently constituted trust": see the 
Bell Group  case (cited above) at [3326].  
11. Thus Plaza, through BGNV, stands in priority to ICWA as a creditor of the 
Bell Group under these arrangements.  
Collapse of the B ell Group  
12. The Bell Group collapsed in 1991 and BGNV, TBGL and BGF all went into 
liquidation. On 18 December 1995 the liquidators of the principal companies 
in the Bell Group commenced proceedings in Western Australia (CIV 1464 of 
2000, "the Main Action") c hallenging security taken prior to the liquidation by 
two groups of banks which were at that time senior creditors benefiting from 
the same turnover trust subordination provisions in the TBGL and BGF trust 
deeds as BGNV.  
13. It seemed at the time that the Bel l Group's unsecured creditors would recover 
nothing unless the Main Action was successful. Two of those major unsecured 
creditors were Plaza and ICWA (as the principal bondholders of BGNV, 
TBGL and BGF) and they therefore largely (with the Commonwealth of 
Australia) funded the Main Action to the tune of hundreds of millions of 
Australian dollars. Without such funding it was doubtful whether the Main 
Action would have proceeded at all and there would be no recovery for the 
BGNV, TBGL and BGF bondholders.  
14. The funding arrangements proceeded on the basis that the parties would 
receive a preferential share of any recoveries by the liquidators under the 
provisions of s.564 of the Australian Corporations Act 2001 ("s.564"), which 
provides as follows:  
"Power of Co urt to make orders in favour of certain creditors  
Where in any winding up:  
(a) property has been recovered under an indemnity for costs of litigation 
given by certain creditors, or has been protected or preserved by the payment 
of moneys or the giving of indemnity by creditors; or  
(b) expenses in relation to which a creditor has indemnified a liquidator have 
been recovered;  
the Court may make such orders, as it deems just with respect to the 
distributio n of that property and the amount of those expenses so recovered 
with a view to giving those creditors an advantage over others in consideration 
of the risk assumed by them."  
15. However ICWA's main interest in the Bell Group liquidation was as 
bondholder and under the terms of the TBGL and BGF issues, it was LDTC as 
trustee and not ICWA as beneficiary, which had the legal right to prove in the 
liquidations. There was thus a risk that the court might take the view that 
ICWA was not a creditor within the meaning  of s. 564. Its funding was 
therefore provided through LDTC as trustee for the TBGL and BGF bonds. 
Likewise, Plaza provided its funding through BGNV.  
16. This did not solve ICWA's problems; since the banks being sued in the Main 
Action were senior creditors o f TBGL and BGF, there was still a risk that a 
s.564 award would primarily benefit them rather than ICWA.  
17. It was therefore decided to amend the TBGL and BGF trust deeds by 
supplemental deeds ("the Second Supplemental Deeds") disapplying the 
subordination p rovisions to the extent of any award pursuant to s.564. This has 
been referred to before me as the "Partial Desubordination" strategy.  
18. The Second Supplemental Deeds were executed by LDTC on 20 March 1995, 
but were not executed by TBGL and BGF, whose liqui dators sought the 
approval of the Supreme Court of Western Australia ("the Western Australian 
Court") before doing so. That approval was not forthcoming because of the 
intervention of the Other Action referred to and defined below. However Plaza 
and BGNV w ere kept informed of these developments at the time and indeed 
ICWA, LDTC and BGNV entered into an agreement dated 4 July 1997 
whereby BGNV specifically agreed (by Clauses 1 and 5) that it would not 
challenge Partial Desubordination.  
19. It is notable that Mr  R. Paul Griese has been closely affiliated with both 
BGNV and Plaza throughout, and executed documents as a representative of 
both. It is fair to assume that in practice BGNV and Plaza make common 
cause.  
20. The banks who were defendants in the Main Action l aunched separate 
proceedings, CIV 2061 of 1996 ("the Other Action"), challenging the 
propriety of Partial Desubordination and the Second Supplemental Deeds. 
ICWA and LDTC counterclaimed for declaratory relief upholding that 
propriety.  
21. In 1999 Plaza ceased  to fund the liquidators. However BGNV was to remain 
entitled to a share of any recoveries made against the banks. Plaza agreed that 
the liquidators would apply for a s.564 award resulting in BGNV receiving 
37.5% of 2/3 of net recoveries, the Commonwealth of Australia receiving 9% 
and ICWA and LDTC 53.5%. An agreement has been approved by the court 
in Curaçao whereby Plaza is to receive 70 -80% of BGNV's net bankruptcy 
estate. Thus Plaza will receive most of any recoveries that may enure to 
BGNV. Mr Snowden pointed out that Plaza's expectation of receiving 
recovery through LDTC as BGNV trustee in consequence of its status as 
BGNV bondholder is very small by comparison.  
22. The trial of the Main Action commenced on 22 July 2003. On 7 April 2004 the 
banks were per mitted to amend their claim (and thus extend the trial) raising 
some of the issues already raised in the Other Action. Rather than face this 
prospect, the liquidators of the Bell Group Companies invited ICWA to 
withdraw its proposal to effect Partial Desub ordination and ICWA and LTDC 
agreed. Thus the liquidators of TGBL and BGF, ICWA, LDTC and BGNV 
agreed to suspend the Partial Desubordination strategy. ICWA also obtained 
BGNV's express consent to this change, a fact of which Plaza was aware.  
23. On the same d ay, 7 October 2004, the banks discontinued their claims in the 
Other Action. ICWA and LDTC also dropped their counterclaim as to the 
validity of the Second Supplemental Deeds but maintained the counterclaim 
against the TBGL and BGF senior creditors (includ ing the banks) that a s.564 
award would not be caught by the subordination provisions of the TBGL and 
BGF trust deeds.  
24. Also on the same day, 7 October 2004, undertakings were given to the 
Western Australian Court. In the Main Action the liquidators of TGB L and 
BGF (personally and on behalf of TBGL and BGF) gave undertakings not to 
allow Partial Desubordination; and in the Other Action, both the liquidators 
and LDTC in its capacity as trustee of the TBGL and BGF bonds gave similar 
undertakings. The undertak ings were, in the Main Action, that the liquidators 
would not enter into the Second Supplemental Deeds or any similar deeds. 
They also undertook that they would not otherwise consent to any amendment 
of or modification having the same effect. In the Other Action, there were 
similar undertakings save that there would be no consent to any amendment or 
modification to the trust deed without notice being given to the plaintiffs in the 
Other Action. However both sets of undertakings were expressly given on the 
basis that:  
"there be liberty to apply to be released or to vary the undertakings if any 
amendment sought to be made… does not in any way adversely affect the 
rights, interests or position of [Senior Creditors of the Bell Group Ltd or Bell 
Group Finance Pty Ltd]"  
25. Thus it was decided not to proceed with the Second Supplemental Deeds. 
They were returned to LDTC on 24 September 2011 unsigned by the 
liquidators.  
26. LDTC says it regards the Second Supplemental Deeds as  being of no effect 
and that it has no present intention of implementing them or of taking any step 
to effect Partial Desubordination. ICWA has also accepted that LDTC is not 
now bound by its execution of the Second Supplemental Deeds. ICWA has 
made no for mal request to LDTC to effect Partial Desubordination. LDTC has 
undertaken to Plaza that it will not perfect the Second Supplemental Deeds 
without notice to Plaza and it says that if ICWA were to request it to do so, it 
would consider whether to do so in a ccordance with its trustee obligations at 
the date of such request.  
27. In 2008 judgment in the Main Action was given at first instance in favour of 
the liquidators. The judgment was upheld on appeal in 2012. The banks 
appealed to the High Court of Australia.  While that appeal was pending, the 
Main Action was settled by a Deed of Settlement dated 17 September 2013. 
On satisfaction of sundry conditions (the Deed of Settlement was conditional 
on third party approvals) it came into full force on 27 June 2014. The  parties 
to the Deed of Settlement were not only the parties to the Main Action but also 
LDTC as trustee for the TBGL and BGF bondholders and, importantly for 
present purposes, Plaza.  
28. The Deed of Settlement's principal purpose was to resolve the issues be tween 
the plaintiff Bell Group companies and the defendant banks by disposal of all 
the proceedings. The banks dropped their claims as creditors in the liquidation 
so, as I have said, they are not now senior creditors for the purposes of the 
subordination provisions of the TBGL and BGF trust deeds. However, the 
Deed of Settlement also contains other important provisions set out below.  
Distribution issues  
29. After entering into the Deed of Settlement, the liquidators of TBGL and BGF 
received 1.7 billion Austra lian dollars.  
30. In the absence of Partial Desubordination Plaza retains priority because 
BGNV is a senior creditor, ahead of LDTC as trustee for ICWA. As the banks 
were removed as creditors, Plaza is a very significant creditor.  
31. However, the Deed of Settle ment envisages implementation of the Partial 
Desubordination strategy. Two clauses provide for steps to be taken to remove 
the undertakings to the Western Australian Court which block Partial 
Desubordination:  
Clause 6(h) provides that (inter alios) TBGL a nd BGF (but excluding LDTC 
as BGNV trustee):  
"…severally (and not jointly or jointly and severally) will take any and all 
steps reasonably necessary to facilitate [release of the undertakings in the 
Main Action]…"  
And Clause 20(a)(vii) provides:  
"Each part y to this deed that is a current or former party to [the Other Action] 
(except for BGNV), will severally (and not jointly or jointly and severally) 
promptly take any and all steps reasonably necessary to facilitate the release of 
any current or former part y to that proceeding from any undertaking given in 
the proceeding to the Supreme Court of Western Australia… "  
Another relevant provision of the Deed of Settlement is the exclusive 
jurisdiction clause contained in Clause 33 (a) and (b), which subclauses ar e in 
the following form:  
"GOVERNING LAW.  
(a) This deed is governed by the laws of the State of Western Australia.  
(b) Each party submits to the exclusive jurisdiction of the courts of that State 
and of any courts that may hear appeals from any of those cou rts, over any 
proceedings in connection with this deed."  
32. The remaining disputes relating to the Bell Group insolvency are being 
managed together in the Western Australian Court in a specialist list by a 
single allocated judge, Pritchard J. These include:  
(a) An application under s.564 filed on 4 August 2014 by the liquidators of 
TBGL and BGF (the liquidators of the principal Bell companies had 
previously applied for s. 564 relief on 7 April 1995 but that application had 
been dismissed on 13 November 1996 a s premature);  
(b) Two applications by ICWA filed on 17 September 2014 asking for 
resolution of matters including,  
o Whether ICWA can benefit from an award under s.564 without Partial 
Desubordination and whether the subordination provisions in the 
TBGL and BG F trust deeds are an obstacle to receipt of such an award;  
o Whether those trust deeds could be amended as envisaged in the 
Second Supplemental Deeds and  
o Whether BGNV can challenge such amendments.  
Plaza's current claim  
33. After about six months of pre -actio n correspondence, Plaza served its claim 
form and particulars of claim on LDTC in England on 3 June 2014, that is to 
say, before the applications mentioned above made by the liquidators and by 
ICWA, but after 17 September 2013, the date of the Deed of Sett lement.  
34. Plaza is mistrustful of LDTC and fears (a) that ICWA is controlling it and (b) 
that LDTC intends to implement the Second Supplemental Deeds. It says that 
LDTC is in an impossible position of conflict between its position as trustee 
for the BGNV bo ndholders and as trustee of the TBGL and BGF bonds and it 
has "undertaken an engagement in which it owes conflicting duties to parties 
with conflicting interests", namely ICWA as sole holder of the TBGL and 
BGF bonds on the one hand, and the BGNV bondholde rs on the other.  
35. In the action, Plaza seeks to restrain LDTC from acting contrary to Plaza's 
interests in alleged breach of trust and in alleged conflict of interest. If 
effective, Plaza says that the Second Supplemental Deeds will adversely affect 
the ri ghts of the senior creditors of TBGL and BGF, including BGNV. 
TBGL's indebtedness will be desubordinated so that the obligations do not 
rank equally with TBGL's subordinated obligations in respect of the BGNV 
bonds. The Second Supplemental Deeds will have the effect that any s.564 
award paid to LDTC will be held for the benefit of ICWA, currently a 
subordinated bondholder, rather than for the benefit of the senior creditors of 
TBGL and BGF, including BGNV. If the Second Supplemental Deeds are not 
brought in to effect, Plaza can take steps to restrain LDTC from participating in 
proposed scheme meetings, but if they are, Plaza will be deprived of the 
opportunity to do so.  
36. By its pleading Plaza alleges that LDTC has put itself in a position where its 
duties und er the BGNV trust deed and the TBGL and BGF trust deeds conflict 
and is in breach of trust in effecting Partial Desubordination. Plaza alleges that 
LDTC intends to take steps to effect Partial Desubordination by:  
o Facilitating the release of the undertakin gs given by LDTC in the 
Other Action;  
o Facilitating the release of the undertakings given by TBGL, BGF and 
their liquidators in that action and in the Main Action;  
o Supplying TBGL, BGF and their liquidators with either the Second 
Supplemental Deeds or deed s to similar effect for execution;  
o Otherwise seeking to bring about Partial Desubordination.  
37. Plaza claims injunctive relief restraining LDTC from implementing the 
Second Supplemental Deeds (or deeds to similar effect), claiming that all such 
deeds should  be delivered up, that LDTC's execution of the Second 
Supplemental Deeds should be annulled and also claiming declaratory relief 
that the steps outlined above would (among other things) constitute breach of 
trust.  
38. Plaza now seeks to amend its particulars of claim so as not to plead relief with 
respect to the alleged wrongdoing from the 1990s, on the ground that it would 
be likely to be time -barred.  
39. LDTC applies for a stay under CPR Part 11 r. 11 (1) (b) and under the Court's 
inherent and CPR case management powers.  
CPR Part 11  
40. Two questions arise. First, is the exclusive jurisdiction clause in Clause 33 (b) 
of the Deed of Settlement engaged? Secondl y, what is the effect of article 2 of 
Council Regulation (EC) 44/2001 ("the Brussels Regulation") in the light of 
Owusu v. Jackson and Ors  [2005] QB 801 . I propose to deal with these two 
questions in turn.  
Clause 33 (b)  
41. In considering the scope of the jurisdiction clause contained in Clause 33 (b) 
of the Deed of Settlement, the words "any proceedings in connection with", 
fall to be g iven a broad and purposive construction: see Sebastian Holdings 
Inc v. Deutsche Bank AG  [2010] EWCA Civ 998  [2010] 2 CLC 300  at [39] in 
which Thomas LJ (with whom the other members of the Court of Appeal 
agreed) cites Lord Hoffmann in Fion a Trust & Holding Corporation v. 
Privalov [2007] UKHL 40  [2007] 2 CLC 553  at [7] and [13],  
"If, as appears to be generally accepted, there is no rational basis upon which 
businessmen would be likely to wish to have questions of the validity or 
enforceability of the contract decided by one tribunal  and questions about its 
performance decided by another, one would need to find very clear language 
before deciding that they must have had such an intention."  
42. Clause 6 (h) of the Deed of Settlement requires the banks and the Main 
Respondents (an expressio n which excludes BGNV) other than LDTC as 
BGNV trustee, to take all steps reasonably necessary to facilitate the release of 
the Liquidators, TBGL and BGF, from their undertakings in the Main Action.  
43. Plaza indirectly cites this obligation at [44.2], [49] a nd [49.3] of its particulars 
of claim when pleading that LDTC proposes to engage in conduct bringing 
about the implementation of Partial Desubordination, considering such 
conduct to be inconsistent with the duties that it is owed. Incidentally the 
language  of the pleadings ("facilitating the release") mirrors the language of 
the obligation at clause 6 (h) of the Deed of Settlement. Since Plaza pleads at 
[52.14] of the Particulars of Claim that it would be a breach of trust for LDTC 
not to take steps to prev ent TBGL, BGF and their liquidators from 
implementing the Second Supplemental Deeds it seeks injunctive and 
declaratory relief both in effect to prevent LDTC from complying with clause 
6(h) and to take positive action to breach the obligation therein conta ined.  
44. Clause 20 (a)(vii) requires all the parties to the Other Action (including 
LDTC), except BGNV, to take all steps reasonably necessary to facilitate the 
release of the Liquidators, TBGL and BGF, and also LDTC as the TBGL and 
BGF trustee, from their u ndertakings in the Other Action. Again Plaza avoids 
directly citing this clause but, again, obliquely cites it in [44.1], [44.2] and 
[49.3] of its particulars of claim.  
45. At [52.7] Plaza pleads that it would be a breach of LDTC's obligations for it to 
"take  steps to bring into effect, approve or implement the Second 
Supplemental Deeds". One major such step would be to seek the release of the 
undertakings in the Main Action and the Other Action as provided for in the 
Deed of Settlement itself.  
46. The substance of Plaza's claim is thus that it would be in breach of trust for 
LDTC to comply with its obligations under the Deed of Settlement. Such a 
claim is in my judgment squarely "in connection with" the Deed of Settlement 
and the pleadings advanced by Plaza also refer indirectly to matters that are 
clearly "in connection with" the Deed of Settlement. In my judgment the 
exclusive jurisdiction of Clause 33 (b) is therefore engaged and the form in 
which Plaza's complaint is expressed cannot detract from the substance  of the 
dispute.  
47. Plaza disavows any intention to stand in the way of LDTC fulfilling its 
obligations under the Deed of Settlement. It says that it did not seek in its 
prayer any relief preventing LDTC from performing such obligations. That is 
too narrow a n approach. An injunction awarded by this Court preventing 
LDTC from modifying the TBGL and BGF trust deeds to achieve Partial 
Desubordination would frustrate the purpose underlying LDTC's obligations 
in the Deed of Settlement regarding the release of the undertakings given to 
the Western Australian Court.  
48. This Court must consider a wide range of material, including all the pleadings 
and the circumstances directly or indirectly referred to in the pleadings. That 
wider assessment exposes the connection betw een these proceedings and the 
Deed of Settlement.  
49. Plaza also says that LDTC's obligations under the Deed of Settlement arose on 
and from Completion, i.e. 27 June 2014, and it has not taken any steps to 
comply with them. However that seems to me to be immaterial.  
50. A trial of the issues in the current action would be bound to require detailed 
evidence as to whether and how LDTC intends to comply with the Deed of 
Settlement. In the light of this it is irrelevant that the Deed of Settleme nt is not 
directly referred to on the face of the Particulars of Claim. The claim requires 
consideration of the Deed of Settlement and LDTC's obligations under it.  
51. Again, in my judgment it does not matter that Plaza now seeks to remove 
(from [49.3]) the e xplicit reference in its pleadings to LDTC's intention to seek 
the release of the undertakings given in the Main Action and the Other Action. 
The strongest point in support of the imminence of Partial Desubordination is 
the fact that LDTC is contractually obliged to seek the discharge of the 
undertakings that currently debar Partial Desubordination.  
52. Further, I am told that LDTC's defence to the claim would be, in part, that 
Plaza cannot challenge LDTC's compliance with the Deed of Settlement 
because Plaza is subject to an implied obligation under Australian law not to 
stand in the way of other parties' performance of their obligations under the 
Deed of Settlement. The dispute is thus focused, at least in part, on both 
parties' obligations under the Deed of Settlement. The exclusive jurisdiction 
clause is therefore firmly engaged.  
53. I reach this conclusion expressly without deciding whether or not the 
defendant is right in saying that "engagement" in [49] of the Particulars of 
Claim means engagement with the D eed of Settlement, a matter staunchly 
denied by Plaza.  
54. It seems to me plain therefore that the issue of release of the undertakings is 
"in connection with this Deed" for the purposes of Clause 33 (b) within the 
test propounded by Lord Hoffmann in Fiona Tr ust.  
55. I now turn to the question whether the operation of this exclusive jurisdiction 
clause is ousted by application of Council Regulation (EC) 44/2001  ("the 
Brussels Regulation") and whether any of the provisions of the Brussels 
Regulation can be applied  reflexively.  
The Brussels Regulation (sometimes called "the Judgment Regulation")  
56. Article 2(1) of the Brussels Regulation provides:  
"Subject to this Regulation, persons domiciled in a Member State shall, 
whatever their nationality, be sued in the courts  of that Member State."  
LDTC is incorporated under English law and registered in England and is 
therefore domiciled in England under article 60 of the Brussels Regulation.  
57. Plaza says that the mandatory effect of the Brussels Regulation is that, as 
LDTC is domiciled in England, it must be sued in England. In C -281/02 
Owusu v. Jackson and others  [2005] QB 801  the European Court of Justi ce 
held (at [35]) that article 2 applies to circumstances involving relationships 
between the courts of a single contracting state and those of a non -contracting 
state. Although Owusu  is a case on the Brussels Convention (which the 
Brussels Regulation repl aced) there is "no doubt that the same conclusion 
applies in the case of [the Brussels Regulation]": Dicey, Morris and Collins on 
the Conflict of Laws  15th (2012) Ed at [11 -028].  
58. Mr Moss submitted that not only has Owusu  ousted the common law 
jurisdiction  of the court of any member state to stay its proceedings on forum 
non conveniens  grounds, but both exclusive jurisdiction clauses and the 
principle of lis alibi pendens  are no more than constituent factors in the wider 
principle of forum non conveniens.  Accordingly, notwithstanding the 
exclusive jurisdiction clause and the fact that an action may be proceeding in 
the Western Australian Court, the Brussels Regulation does not merely permit 
but positively requires Plaza to bring proceedings in England to obt ain a 
remedy for breaches of trust by an English domiciled trustee.  
59. Owusu  considered the impact of article 2 on the ability of the English court to 
stay proceedings in its discretion on the grounds of forum non conveniens , that 
is to say that it would be more appropriate for a court in a jurisdiction outside 
the European Union to resolve the dispute. The ECJ considered (at [41] -[44]) 
that allowing such discretion to override the otherwise mandatory effect of 
article 2 would undermine the principles of legal certainty and the legal 
protection of persons domiciled in Member States and affect the uniform 
application of the rules of jurisdiction across member states Accordingly at 
[46] it concluded:  
"the Brussels Convention prec ludes a court of a contracting state from 
declining the jurisdiction conferred on it by article 2 of that Convention on the 
ground that a court of a non -contracting state would be a more appropriate 
forum for the trial of the action, even if the jurisdicti on of no other contracting 
state is in issue or the proceedings have no connecting factor to any other 
contracting state."  
60. It is not therefore open to LDTC to say that it would be more appropriate for 
the Western Australian Court to resolve the dispute, in  other words, to make 
submissions on the basis of forum non conveniens . It would be wrong to allow 
those of Mr Snowden's submissions which can properly be characterised as 
forum non conveniens  submissions, that is to say, his submissions about the 
"obvious  advantages" of staying Plaza's claim on the ground that the 
underlying dispute is an overwhelmingly Australian one.  
61. There is however a separate issue whether one can glean the wider principle 
from Owusu for which Mr Moss contends, that is to say that the  court should 
not undermine the mandatory effect of article 2 through means other than 
forum non conveniens  in the strict sense.  
62. Mr Snowden points out that there are exceptions to art 2 in arts 23 and 28. 
Article 23 provides for a contractual jurisdiction  provision to have effect 
where the jurisdiction is that of the court of a member state. Article 28 
provides for jurisdiction to stay where related actions (actions where there is a 
risk of irreconcilable judgments arising from separate proceedings) are 
pending in the courts of different member states.  
63. Article 23 (1) provides:  
"If the parties, one or more of whom is domiciled in a Member State, have 
agreed that a court or the courts of a Member State are to have jurisdiction to 
settle any disputes which h ave arisen or which may arise in connection with a 
particular legal relationship, that court or those courts shall have jurisdiction."  
And article 28(1) and (3) provides:  
"Where related actions are pending in the courts of different Member States, 
any cour t other than the court first seised may stay its proceedings.  
… 
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 irreconcila ble judgments resulting from separate 
proceedings."  
64. Mr Moss is of course right that these provisions do not apply directly because 
Western Australia is not a member state. However, Mr Snowden submits that 
these provisions should be applied reflexively. He says that, despite Owusu , 
the Court may apply articles 23 and 28 reflexively if it determines (a) that the 
exclusive jurisdiction clause should operate and (b) that the existence of the 
proceedings in the Western Australian Court renders it expedient that Plaza's 
arguments be heard there.  
65. Reflexive application is a term of art in the field of conflicts of law, allowing 
the court to apply by analogy provisions of European law by treating non -
member states as if they were member states. It was given extensiv e 
consideration by Andrew Smith J in  Ferrexpo  at [125] -[127]. The court's 
vehicle for analogous application is via a purposive use of its discretion to stay 
proceedings under the CPR. As Andrew Smith J said in Ferrexpo  at [127]:  
"…this is required in orde r to give effect to the purpose (albeit not the letter) 
of the Regulation."  
66. I therefore turn separately to article 23 and article 28.  
Article 23(1)  
67. There are first instance decisions (see Konkola Copper Mines plc v. Coramin 
Limited [2005] EWHC 898 (Comm) , Winnetka Trading Corporation v. Julius 
Baer International Limited [2008] EWHC 3146 (Ch)  and the analysis by 
Andrew Smith J in Ferrexpo v. Gilson Investments  [2012] EWHC 721 Comm)  
[2012] 1 Ll R ep 588) in which the court has held that Owusu  does not prevent 
the English court from enforcing exclusive jurisdiction clauses. As Norris J 
said in Winnetka ,  
"The parties in [ Owusu ] were advancing arguments concerning forum non 
conveniens , not exclusive jurisdiction clauses. The court did not therefore have 
to consider what role an agreement between the parties might play, and 
compare the weight to be given to the agreement between the parties with the 
mandatory terms of art 2.  
…My own view is that the terms of art 2 cannot deprive the parties of their 
autonomy in agreeing which court shall have the jurisdiction to determine 
their disputes." [He then cites Briggs and Rees's Civil Jurisdiction and 
Judgments  (4th edn para 2.102 p.128, (also cit ed in the later 5th edition), 
mentions r 32 (2) in Dicey, Morris and Collins  on the Conflict of Laws  (14th 
edn 2006) Vol 1 p.513 and the obiter comments of Colman J in Konkola to the 
same effect and continues:]  
"I therefore do not think that art 2…provide[ s] a compelling reason for 
departing from the first choice made by the parties in the exclusive jurisdiction 
clause… Nor do I think that it constitutes an independent factor which in its 
own right militates against recognising the jurisdiction of the Guern sey court 
and the force of its order."  
68. A reflexive approach to article 23 (1) was thus applied in Winnetka , in which 
Norris J relied on the obiter dicta of Colman J in Konkola  in confining Owusu  
to its terms.  
69. In Ferrexpo , Andrew Smith J said at [131] and [133],  
"…para 37 of the judgment in Owusu v. Jackson… is not to be understood to 
prevent the national court declining jurisdiction in all circumstances unless 
they are expressly recognised by the Brussels Regulation. A basic principle of 
the Regulation emp hasised by the ECJ in Owusu  itself is that a well -informed 
party should be able to predict where he might be sued and where he is 
entitled to sue, and it would not promote this principle to interpret the 
Regulation so as to defeat the parties' express agre ement for exclusive 
jurisdiction, an agreement that is generally designed to achieve just such 
certainty….  
Accordingly, the defendants submit, once it is recognised that the mandatory 
effect of article 2 of the Brussels Regulation is subject to the excepti on of an 
exclusive jurisdiction clause whereby the parties have chosen to resolve their 
disputes in the courts of a non -member state, there is no reason to interpret the 
judgment in Owusu v. Jackson  as requiring the courts of member states to 
exercise juri sdiction over matters covered by article 22. There is support for 
this conclusion in Choudhary v. Bhatter  [2009] EWCA Civ 1176 , in which Sir 
John Chadwick sa id this (at para 52):  
'…Properly understood, the decision in Owusu  provides no direct authority on 
the question whether a court of a contracting state is precluded from declining 
the jurisdiction (if any) conferred on it by art 22 of the [Brussels] Regulat ion 
in respect of a person not domiciled in a member state on the ground that a 
court of a non -contracting state would be a more appropriate forum for the 
trial of the action.'"  
70. Andrew Smith J then went on to cite Lawrence Collins LJ in Masri v. 
Consolidat ed Contractors International Co SAL  [2008] EWCA Civ 303 ; 
[2008] 2 Lloyd's Rep 128  in which Lawrence Collins LJ recognised the 
similarity of questions about declining jurisdiction in favour of non -member 
states in relation to articles 22 and 23, saying (at [125]),  
"…article 23 provides th at if the parties, one or more of whom are domiciled 
in a Regulation State have agreed that the courts of a Regulation State are to 
have jurisdiction to settle any disputes which may arise between them. What if 
they have designated the courts of a State wh ich is not a Regulation State, 
such as the courts of New York and an action is brought in England in breach 
of the jurisdiction agreement? In such cases it would be odd if the [Brussels 
Regulation] did not permit the English court to stay its proceedings."  
71. Mr Moss submitted that if any part of article 23 was applicable, it was article 
23 (4):  
"The court or courts of a Member State on which a trust instrument has 
conferred jurisdiction shall have exclusive jurisdiction in any proceedings 
brought against a s ettlor, trustee or beneficiary, if relations between these 
persons or their rights or obligations under the trust are involved."  
72. However, the BGNV trust deed provides at clause 28 as follows:  
"…nothing in this Clause contained shall hinder or prevent the Trustee from 
taking proceedings in any other jurisdiction as the Trustee shall decide and 
from exercising all rights and powers under the laws for the time being in 
force in any such jurisdiction which it would have been entitled to take or 
exercise but fo r the inclusion of this Clause in these presents…"  
And each of the Issuer (BGNV) and the Guarantor (TBGL):  
"…hereby submits for all purposes of or in connection with these presents to 
the non -exclusive jurisdiction of the English courts… "  
73. I do not consider article 23 (4) to be applicable. Clause 28 makes it plain that 
LDTC does not accept the jurisdiction of the English court in all 
circumstances.  
74. I also agree with Mr Snowden that article 23 (4) does not contain any magic 
which elevates a non-exclusive jurisdiction clause into an exclusive one. The 
reference to "exclusive jurisdiction" simply means that the parties' choice of 
forum should take effect to the exclusion of jurisdictions identified by the 
other articles of the Brussels Regulati on: see per Hoffmann J in Kurz v. Stella 
Musical Veranstaltungs GmbH  [1992] Ch 196 at 203 -204. Jurisdiction is a 
question of the intention of the parties.  
75. I agree with Norris J's decision in Winnetka  and Lawrence Collins LJ's 
observations in Masri . The pa rties' autonomy to choose the forum in which to 
settle their disputes is an important one which exists in European law as well 
as national law as can be seen from article 23 (1) itself. The court should not 
lightly override that principle.  
76. I note that art icle 23 (1) is a mandatory exception to article 2, unlike forum 
non conveniens . In my judgment Owusu  does not bar a reflexive application of 
article 23 (1). A mandatory exception to a rule does not have the same 
potential to undermine legal certainty as a discretionary exception.  
Article 28  
77. If I am wrong about article 23 (and I do not think I am) I go on to consider 
article 28, relying on lis alibi pendens  on the basis that discretion is given to 
the English court to stay proceedings where another court is  already seised of 
a dispute which is so closely connected to the proceedings that there is a risk 
of irreconcilable judgments. The aim of article 28 is thus to avoid parallel 
proceedings and conflicting decisions.  
78. There are two first instance decisions i n which the court has declined 
reflexively to apply provisions that involve discretionary considerations.  
79. One is Catalyst Investment Group Limited v. Lewinsohn  [2009] EWHC 1964 
(Ch); [2010] Ch 218 , in which Barling J decided that a reflexive application of 
article 27 of the Brussels Regulation (article 27, like ar ticle 28, is also based 
on lis alibi pendens ) was not available. Barling J considered (at [65]) that 
under Owusu  legal certainty and uniform application of jurisdictional rules 
were central to the Convention and, latterly, the Brussels Regulation. At [99] 
he commented on the reflexive approach:  
"it is not open to me to interpret and apply article 27 reflexively so as to 
enable me to exercise a discretion to stay proceedings which have been 
properly founded on article 2, on the grounds that the same dispute  is pending 
between the same parties in the Utah courts and that the latter and not this 
court is the natural and appropriate forum. Such an interpretation would 
introduce the wide forum conveniens  discretion by the back door, contrary to 
the ruling of the  ECJ in Owusu's  case."  
80. Barling J was thus persuaded that the question whether there is a lis alibi 
pendens  is no more than a constituent factor within the doctrine of forum non 
conveniens.   
81. Again, in Skype Technologies SA and another v. Joltid and Kasesalu  and 
others  [2009] EWHC 2783 (Ch)  (incidentally an exclusive jurisdiction clause 
case, but one where exclusive jurisdiction was given to the English court), 
Lewison J said (at [22]):  
"I am inclined to agree…that the decision of the ECJ in Owusu  has now 
removed discretionary considerations (such as those relating to forum non 
conveniens ) from playing any part in the decision of a court in a Member State 
from staying its own proceedings. I am also inclined to agree that the court 
should not, under the guise of case management, achieve by the back door a 
result against which the ECJ has locked the front door ." 
82. These two cases, Catalyst  and Skype , run counter to other first instance 
decisions which allow for a reflexive application of the Brussels Regulation on 
lis alibi pendens  grounds.  
83. In JKN v. JCN  [2010] EWHC 843 (Fam)  Miss Lucy Theis QC (sitting as a 
Deputy Judge of the Family Division) refused to follow Catalyst in applying 
Owusu  to cases where there are parallel proceedings in a non -Member state, 
citing fou r main reasons (at [149]) for the following conclusion:  
"It is neither necessary nor desirable to extend the Owusu  principle in cases 
where there are parallel proceedings in a non -member state."  
84. It is instructive to note the observations of Lewison LJ when he cited JKN 
with approval in Mittal v. Mittal  [2013] EWCA Civ 1255 ; [2014] Fam 102  at 
[41],  
"Accordingly in my judgment it is not appropriate to extend the reasoning in 
the Owusu  case [2005] QB 801  to the very different circumstances of our case, 
which concerns a stay in favour of prior competing proceedings in a non 
member state ( lis alibi pendens ). I therefore agree with both the decision and 
the reasoning of Ms Lucy Theis QC, sitting as a deputy judge of the Family 
Division, in JKN v JCN  (Divorce: Forum) [2011] 1 FLR 826 , para 149(ii). It is 
not necessary for us to be drawn into a wider debate (which Ms Theis also 
considered) on the extent to which the Owusu  case applies to the [Brussels 
Regulation]; and anything I might say on that topic would be simply obiter."  
85. Ferrexpo was concerned with an application to stay proceedings in England in 
favour of proceedings in the Ukraine. Andrew Smith J's view was that there 
was an undeniable connection between the principles of forum non conveniens  
and lis alibi pende ns. However he had no difficulty in giving effect to the 
ECJ's finding in Owusu that because of article 2 a defendant cannot pray in aid 
the former principle while deciding that Owusu  did not apply to the latter. The 
court retained its inherent and also it s CPR case management powers: see 
Ferrexpo  at [200] and Blue Tropic Limited v. Chkhartishvili [2014] EWHC 
2243 (Ch)  at [32].  
86. Andrew Smith J considered the de cision of the Court of Appeal in Lucasfilm v. 
Ainsworth  [2009] EWCA Civ 1328 . He contrasted the decision of Barling J in 
Catalyst but preferred (consistently  with it being the later decision) JKN. He 
was willing (at [167]) reflexively to apply articles 27 and 28. He considered 
(at [187]) that article 27 applied to the exclusion of article 28 because the 
English court had first been seised of the issue. However , if that had not been 
the case he said (at [191]) that he would have ordered a stay on the basis of a 
reflexive application of article 28.  
87. I am therefore faced with two older first instance decisions that go one way 
and two more recent first instance dec isions that go the other. LDTC invites 
me to follow one route and Plaza the other.  
88. The Brussels Regulation does not say that this Court has lost its discretionary 
powers to stay proceedings where a non -Member state has been first seised of 
the issue. Inde ed article 28 suggests that the discretion exists as a matter of 
principle in European law. Importantly, not only did the ECJ in  Owusu  not 
rule out a stay of proceedings (otherwise falling within article 2: pace  Lewison 
J's decision in Skype ) on the basis of lis alibi pendens , but at [47] -[52] it 
expressly declined to answer the question.  
89. One way of reconciling Catalyst and Skype  with Ferrexpo  is simply to say that 
forum non conveniens submissions cannot be dressed up as lis alibi pendens  in 
order to avoid  Owusu . The fear expressed by both Barling J and Lewison J 
was that to allow circumvention of Owusu  would be to reintroduce judicial 
discretion based on forum non conveniens  which would undermine the 
principle of legal certainty.  
90. I believe it may be open to me to apply article 28 reflexively, but the question 
is whether in all the circumstances of the case I should do so.  
91. When writing this judgment I came across the decision of the Supreme Court 
in The Alexandros T  [2013] UKSC 70 ; [2014] Bus LR 873 . As it had not, I 
believe, been cited to me and i t is a leading case of the highest authority on the 
(direct) application of article 28, I invited written submissions on it which I 
received from both parties. This judgment takes those submissions into 
account.  
92. The Alexandros  sets out three stages of the  test for the application of article 
28:  
(i) To identify which set of proceedings were commenced first: at [75] per 
Lord Clarke (with whom Lord Sumption and Lord Hughes agreed) quoting 
with approval FKI Engineering Ltd v Striborg Ltd [2011] Bus LR 1410 , at 
[119] –[120] per Rix LJ. However the proceedings must still be pending. If 
they have been finally concluded by way of dismissal or  discontinuance they 
cannot be regarded as pending although a stay does not mean that the action 
does not remain pending: see [77] –[90] per Lord Clarke.  
(ii) Secondly, the proceedings must be related to the current action, in the 
sense that they are, to q uote article 28(3): "so closely connected that it is 
expedient to hear and determine them together to avoid the risk of 
irreconcilable judgments resulting from separate proceedings". The answer as 
to relatedness should be reached applying a "broad and comm onsense 
approach…refraining from an over -sophisticated analysis of the matter": 
Sarrio SA v Kuwait Investment Authority  [1999] 1 AC 32 , at 41 per Lord 
Saville, cited with approval in The Alexandros  at [88] per Lord Clarke.  
93. Following satisfaction of the first and second stages (and it does not matter in 
which order those stages are addressed: see [76]), the third stage (iii) is to 
consider  the exercise of the court's discretion.  
94. As to the first stage, the s.564 Application and the ICWA Applications were 
commenced after Plaza's current claim. Thus the only proceedings that remain 
to be considered for lis alibi pendens  are the Main Action and the Other 
Action, both of which started some considerable time before Plaza's present 
claim.  
95. As regards the Main Action, Mr Moss submitted that it was in no sense 
"pending" following the Deed of Settlement, which, by clause 13, pla ced the 
parties to the Main Action under obligations to discontinue the appeal to the 
High Court of Australia. However this overlooks the fact that those 
proceedings remain current for the purposes of the undertakings which still 
bind the parties. Any appl ication for the release of those undertakings under 
the liberty expressly set out in them, would not constitute fresh proceedings 
but rather an application within the existing actions: see per Lord Clarke in 
The Alexandros  at [78] -[79]. The liberty to appl y is the key: instead of starting 
a fresh action, the old one can be utilised.  
96. Mr Moss submitted that the Other Action was also no longer pending. The 
counterclaim launched by ICWA and LDTC was amended in 2004 to remove 
the application for declaratory rel ief as regards the validity of the Second 
Supplemental Deeds. The banks similarly dropped their challenge to Partial 
Desubordination. Only the application by ICWA and LDTC about s. 564 
remained and, on the issue of the ICWA Applications, counsel for ICWA h as 
informed the Western Australian Court that it proposed to abandon that 
remnant because the Other Action was no longer an appropriate vehicle for the 
determination of the relevant issues which fall to be dealt with in the ICWA 
applications instead. Mr Mo ss submitted that a common sense approach meant 
that the Other Action was now dead. However, as before, I consider that the 
Other Action remains pending to the extent that the undertakings remain in 
force because of the liberty to apply. Citing Lord Clarke  in The Alexandros  at 
[89]:  
"…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 policing 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….to treat the enforcement action as 
something entirely new seem s to me to be wrong."  
97. The heart of Plaza's claim is that LDTC, amongst others, is contractually 
obliged under the Deed of Settlement to facilitate the release of its own and 
others' undertakings to the Western Australian Court in both the Main Action 
and t he Other Action. That court has been seised of all issues relating to those 
undertakings for some ten years.  
98. It is true that there is no risk of an irreconcilable judgment otherwise arising 
from the Main Action because proceedings have been discontinued, and there 
is no risk of an irreconcilable judgment arising from the Other Action because 
the pleadings have been amended to remove the dispute with respect to the 
Second Supplemental Deeds. It is appropriate that this court take such 
amendments into accoun t: see The Alexandros at [75] per Lord Clarke.  
99. However, what remains live in the Main Action and the Other Action is so 
closely connected to Plaza's claim that it is expedient to hear and determine 
them together to avoid the risk of the following irreconc ilable judgments. 
Severe difficulties might arise if this Court determined that, say, LDTC could 
not seek a release of the undertakings while the Western Australian Court (for 
example on an application by TBGL, BGF and their liquidators) decided that 
the u ndertakings could now be released. The entire matter should be heard by 
the court to which the undertakings have been given.  
100. Mr Moss further submitted that the proceedings in Australia could not 
be regarded as "live" as no steps have yet been taken to app ly to the Western 
Australian Court for release of the undertakings. This misses the point. The 
critical position is not that of the parties but that of the relevant court. From 
the perspective of the Western Australian Court, the position for the last ten 
years has been that an application must be made to it, and no other court, were 
any party to breach or seek to release the undertakings. The Western 
Australian Court is therefore still seised of the issue.  
101. Mr Moss also submitted that there was no relatedn ess between the 
actions because Plaza was not a party and LDTC was only a party qua TBGL 
and BGF trustee and not as BGNV trustee. However, such considerations are 
irrelevant to the test for related actions: the focus is on the risk of 
irreconcilable judgme nts. Nowhere in article 28.3 is there any requirement that 
the parties be the same in both actions. Mr Moss's submission does not reflect 
the law and I note that Andrew Smith J took the same view in Ferrexpo  (at 
[167]).  
102. Mr Moss also said that the undertak ings were not themselves actions 
and therefore could not be considered in the test for relatedness. The 
conclusion does not in my view follow. In FKI Engineering , Mummery LJ 
stressed the correct question is whether the court concerned is seised of an 
actio n and not of a particular issue in an action (at [40] –[44] noted in the The 
Alexandros  at [75]). However, as I have already said, I consider that the 
undertakings exist within actions that must be considered still to be pending. 
The case is similar to a st ay by way of Tomlin  Order.  
103. It was also submitted that any seisin on the part of the Western 
Australian Court was conditional and limited such that it could not be regarded 
as related to the present proceedings. Two conditions must be met before the 
libert y to apply could be invoked: first, an amendment must be proposed to the 
trust deeds; secondly, that amendment must not adversely affect the rights, 
interests or position of the senior creditors. At present, no amendment had 
been proposed and any amendment  seeking to effect Partial Desubordination 
would necessarily prejudice the senior creditors. As these conditions have not 
yet been met, the Western Australian Court is not currently seised.  
104. In my view, this is a narrow, technical and over -sophisticated ap proach 
of the type that Lord Saville warned against in Sarrio . It is not for this court to 
police the boundaries of the Western Australian Court's seisin. On Lord 
Saville's "broad and commonsense" approach the Western Australian Court is 
seised of all issu es relating to the undertakings. Plaza would be entitled to 
raise the same argument in the Western Australian Court in opposition to an 
application by LDTC or indeed others.  
105. I therefore consider that the first two requirements of The Alexandros  
are satisfied. The question therefore arises whether I should (iii) exercise the 
court's discretion to stay these proceedings.  
106. The leading authority remains Advocate General Lenz's opinion in C -
129/92 Owens Bank Ltd v Bracco  [1994] QB 509 , [74] – [79], as Lord Clarke 
made clear in The Alexandros  (at [92]). There is a strong presumption in 
favour of a stay but three important factors are also mentioned.  
107. The first factor is the extent of the relatedness between the actions and 
the risk of mutually irreconcilable decisions. The extent of relatedness is very 
great in the present case. At the heart of Plaza's claim lies the obligation und er 
the Deed of Settlement to seek the release of the undertakings. The Western 
Australian Court is seised of all issues relating to those undertakings and their 
release. The obligations under the Deed of Settlement require that an 
application to release th e undertakings will be made in the near future. In 
deciding whether or not to release the undertakings, the Western Australian 
Court will have to deal with the question of the propriety of any release given 
the potential prejudice that Plaza and others may  suffer. It could well be that 
an English court and an Australian court would arrive at different responses. I 
therefore consider this first factor to weigh heavily in favour of a stay.  
108. The second factor is the stage reached in each set of proceedings. Mr  
Moss submitted that Plaza's present claim is well advanced as the facts are not 
in dispute and the matter could proceed to trial in the near future. By way of 
contrast, the proceedings in the Western Australian Court are either more 
recent than these proc eedings (the s.564 Application and the ICWA 
Applications) or substantially at an end (the Main Action and the Other 
Action).  
109. However Plaza's claim in England is not significantly advanced. The 
only substantial step that has happened is the issue and servi ce of the claim 
form and particulars of claim. There is, as yet, no defence. I therefore consider 
that this second factor also weighs in favour of a stay.  
110. The third factor is the proximity of each of the courts to the matter. On 
the one hand, the underlyi ng dispute relates to the distribution of moneys in 
the insolvency proceedings of the Bell Group. That is, as Mr Snowden put it,  
"fundamentally a Western Australian affair: it is the further resolution of 20 
year old Western Australian litigation and is t he working out of the Western 
Australian liquidation of a Western Australian corporate group."  
111. Further, the dispute raised issues in connection with the Deed of 
Settlement which is governed by the law of Western Australia and contains an 
exclusive jurisdic tion clause. In The Alexandros  Lord Clarke, when exercising 
his discretion not to stay proceedings, placed weight (at [94]) on the fact that 
proceedings elsewhere had been brought in breach of an exclusive jurisdiction 
clause in favour of the English court s. Similar weight should be given in 
favour of a stay in the converse situation where proceedings have been 
brought in England in breach of an exclusive jurisdiction clause.  
112. On the other hand, the dispute involves a trust domiciled and 
administered in Eng land, governed by English law, raising questions of 
English trust law subject to a non -exclusive jurisdiction clause in favour of the 
English courts, and is against a English trustee. I note that in The Alexandros , 
Lord Clarke considered (at [96]) that the  "natural court" to consider issues 
raised in contracts governed by English law is an English one.  
113. However, the balancing factor is that Plaza's claim for breach of trust 
involves (i) the question of the undertakings given to the Western Australian 
Court and (ii) the question of compliance with obligations relating to those 
undertakings under the Deed of Settlement, which is governed by an exclusive 
jurisdiction in favour of the Western Australian Court.  
114. Although I have to be careful not to bring in forum  non conveniens by 
the back door, I note both the presumption in favour of a stay and also the 
weight in favour of a stay given by the first two factors specified in Owens v. 
Bracco.  
115. Finally, the three factors identified in Owens v. Bracco are not an 
exhaustive statement as to what the court can take into account when 
considering whether to exercise its discretion. I therefore add that I have also 
taken into account the fact that Plaza's complaint that it will be materially 
prejudiced by Partial Desubordin ation is likely to be heard by the Western 
Australian Court before any amendments of the trust deeds can take place.  
116. Far from rebutting the presumption that a stay will be ordered, all the 
circumstances of the case weigh in favour of LDTC.  
117. However, it seems to me that the question of the nature of lis alibi 
pendens  (that is to say, whether it is merely a constituent factor of forum non 
conveniens and, if so, the effect of  Owusu ) is one that merits full argument. 
While I tend to agree with An drew Smith J in Ferrexpo  that the Court is not 
bound by Owusu  to reject the lis alibi pendens  argument, I can and do limit 
my decision to the fact that the Deed of Settlement contains an exclusive 
jurisdiction clause and that, following the decision of Norris J in Winnetka , it 
should be applied.  
Article 5 (6)  
118. Before leaving the Brussels Regulation, I should consider a submission 
raised very late in the day by Mr Moss and Mr Ham.  
119. They submitted that article 5(6), applied reflexively, may  be relevant to 
refusing a stay. This reads:  
"A person domiciled in a Member State may, in another Member State, be 
sued … as settlor, trustee or beneficiary of a trust created by the operation of a 
statute, or by a written instrument, or created orally a nd evidenced in writing, 
in the courts of the Member State in which the trust is domiciled."  
120. However, article 5(6) is irrelevant because it is concerned with 
bringing an action against a trustee in another Member State to the one in 
which it is domiciled.  Here, Plaza seeks to sue LTDC in the Member State in 
which it is domiciled. Further, even were it engaged, I am not convinced that, 
as an apparently permissive rather than mandatory provision, it could override 
the mandatory effect of article 23(1), consi dered at length above.  
121. Mr Moss submitted that article 5(6) was mandatory on the basis of a 
passage in Gomez v Gomez -Monche -Vives  [2008] EWHC 259 (Ch)  at [111]  – 
[113] per Morgan J. I do not consider this passage to support Mr Moss's 
submission and, in any event, I am not bound by it as it is obiter dicta  at first 
instance in a case that was later reversed in part by the Court of Appeal: see 
[2008] EWCA Civ 1065 ; [2009] Ch 245 .  
122. Further, even were Mr Moss right as to t he relevance of article 5(6), I 
do not believe (and I do not think that Mr Moss suggested) that it would be 
determinative of the case. It is not therefore necessary to consider it any 
further.  
Case management powers  
123. Mr Snowden submitted that this court c ould also order a stay on the 
basis of its case management powers, either by reference to the court's 
inherent power or under CPR rule 3.1(2)(f).  
124. In Reichhold Norway ASA v Goldman Sachs International  [1999] 1 All 
ER (Comm) 40, 47, Moore -Bick J held that c ase management powers might 
be used when two sets of proceedings are being, or could be, pursued 
concurrently:  
"not only because the existence of concurrent proceedings may give rise to 
undesirable consequences in the form of inconsistent decisions, but a lso 
because the outcome of one set of proceedings may have an important effect 
on the conduct of the other."  
125. In the Court of Appeal, Moore -Bick J's decision was affirmed but Lord 
Bingham CJ stressed ( [2000] 1 WLR 173 , at 186) that, "stays should only be 
granted in cases of this kind in rare and compelling circumstances".  
126. What amounts to such rare and compelling circumstances? In 
Reichhold , there were parallel arbitration and court proceedings about the 
purchase of a company. The arbitration between buyer and seller would have 
implications for the claim in the English courts against the financial adviser. It 
was therefore appropria te to stay the court proceedings. In Ferrexpo (at [200]), 
Andrew Smith J indicated that, had he not stayed proceedings through a 
reflexive application of the Brussels Regulation, he would have stayed 
proceedings on case management grounds. The same compell ing 
circumstances that had led him to consider that the proceedings were an abuse, 
as they had no other purpose than to replicate the Ukrainian proceedings, also 
led him to consider that the case management powers could be exercised.  
127. He made it clear that  the stay was not on the basis of anything that 
might introduce considerations of forum non conveniens . In Blue Tropic Ltd v 
Chkhartishvili  [2014] EWHC 2243 ( Ch), Newey J recognised that a stay could 
be granted but at [30] –[33] refused to order one as he too said, citing Lewison 
J in Skype,  that forum non conveniens arguments were being advanced. Mr 
Moss took this court to a number of authorities about the unav ailability of 
forum non conveniens  arguments (such as Jefferies International Limited v 
Landisbanki Islands HF  [2009] EWHC 894 (Comm) , [24] –[37] per Cooke J 
and Lornamead Acquisitions Ltd v Kaupthing Bank HF  [2011] EWHC 2611 
(Comm) , [116] –[121] per Gloster J), but I do not consider that they take the 
matter any further.  
128. Even having discounted those of Mr Snowden's submissions which are 
or may be dressed up forum non conveniens  points, I would still be inclined to 
use the court's case management powers to stay these proceedings because of 
the undertakings at the heart of this dispute and because of LTDC's obligations 
under the Deed of Settlement engaging the exclusive jurisdiction clause. For 
those reasons, the propriety of LDTC taking steps to secure the release of the 
undertakings is properly resolved through th e proceedings in the Western 
Australian Court. This is not introducing forum non conveniens  by the back 
door; the point is squarely focused on party autonomy or alternatively on lis 
alibi pendens .  
129. I observe that it seems relatively clear that, should Plaz a fail in these 
proceedings, it will simply re -litigate them in Australia, either by opposing 
any application to release the undertakings or in the other proceedings now 
commenced in Australia. It is therefore within this court's discretion not to 
allow Pl aza two bites at the cherry and order a stay of these proceedings.  
130. Had I not ordered a stay by reflexive application of article 23 of the 
Brussels Regulation, I would therefore have ordered a stay on case 
management grounds.  
Singularis Holdings Limited v . PricewaterhouseCoopers  [2014] UKPC 36  
("Singularis ") 
131. On 19 November 2014 the Privy Council gave judgment in Singularis 
and Mr Moss and Mr Ham made submissions in writing to the effect that 
Article 28 of the Brussels Convention could not be applied by analogy. It was 
decided in Singularis  that the court cannot apply legislation by analogy if it 
does not apply directly according  to its terms. Such application would be, said 
Lord Collins at [108], an impermissible usurpation of the legislative function:  
"…wholly inconsistent with established principles governing the relationship 
between the judiciary and the legislature and there fore profoundly 
unconstitutional."  
132. However, Singularis was concerned with the scope of the common law 
power to assist foreign winding -up proceedings, addressing the interplay of 
common law and statute in English common law jurisdictions. It was focused 
on Cambridge Gas Transportation Corpn v. Navigator Holdings plc  [2007] 1 
AC 508 , Re African Farms Limited  [1906] TS 373, Re HIH Casualty & 
General Insurance Limited  [2008] 1 WLR 852 , Rubin v. Eurofinance SA  
[2013] 1 AC 236 , the principle of modified universalism and the existence of a 
common law power to order the production of information. It is of no 
assistance in cases concerning the Brussels Regulation.  
133. To the contrary there is no doubt that under the English authorities 
some reflexive application of the Brussels Regulation is available: see 
Ferrexpo  at [126] and [123] citing Dicey Morris & Collins  (14th Ed) at [12 -
021] and Lawrence Collins LJ in Masri , in the passage quoted above.  
134. Further, in Singularis  at [76] Lord Collins expressly distinguished the 
issue there arising for decision from the different issue:  
"whether a statutory rule may be taken into account in the exercise of a 
discretion".  
135. A reflex ive application of the exceptions to article 2 does no more than 
take into account those exceptions when exercising the discretion. There is 
nothing in Lord Collins's judgment to suggest that he was in any way revising 
his views, expressed in the Court of Appeal in Masri , on the reflexive 
application of the Brussels Regulation.  
136. In any event, Plaza argues only that a reflexive application of article 28 
is impermissible. It does not address articles 22 and 23, which the court in 
England has (see above) accepted can be applied reflexively.  
137. As I have said, I therefore stay the proceedings.  
Summary judgment/strike out  
138. If I had determined against LDTC on the first issue, I would have to 
decide whether or not to give summary judgment for LDTC on the whole 
claim or strike out the claim.  
139. I have decided in favour of LTDC on that issue so the second questions 
do not strictly arise. However I ought to consider them briefly in any event.  
140. Summary judgment should only be given if Plaza's claim had no 
realistic pro spects of success and there is no other reason for a trial: CPR rule 
24.2.  
141. In S v Gloucestershire County Council  [2001] Fam 313 , 342, May LJ 
held that the cou rt must first:  
"be satisfied the all substantial relevant facts relevant to the 
allegations…which are reasonably capable of being before the court, are 
before the court; that these facts are undisputed or that there is no real prospect 
of oral evidence af fecting the court's assessment of the facts."  
142. Mr Moss submitted that there were significant factual disputes between 
the parties.  
143. The first dispute relates to LDTC's stated "no present intention" to 
implement the Second Supplemental Deeds. Mr Moss submitt ed that this 
would require examination of the state of mind of the relevant individual 
decision makers within LDTC, of why this defence was raised only latterly in 
correspondence and of the time when LDTC first formed the view that the 
Second Supplemental Deeds ceased to have effect.  
144. LDTC's putative defence does appear to contradict its obligations 
under clause 20 (a) (vii) of the Deed of Settlement "promptly" to take steps to 
release the undertakings that currently block the implementation of the Second 
Supplemental Deeds. More information could be put before a court than the 
bald assertions as to "no present intention" currently to be found in the witness 
statements. I observe that LDTC could have given an undertaking (but did not) 
in the present action n ot to implement the Second Supplemental Deeds and to 
destroy the old deeds.  
145. Cross -examination with the benefit of disclosure at trial would be the 
only way for a court to ascertain the true intentions of LDTC with respect to 
the Second Supplemental Deeds.  As Floyd J said in Radiocomms Systems Ltd 
v Radio Communications Systems Ltd [2010] EWHC 149, [19]:  
"It is not unrealistic, as everyone experienced in litigation knows, for evidence 
… to take on a very different character after being subjected to cross -
examination…Where the true facts lie is a matter that can only be determined 
when the full context is exposed at trial."  
146. The second factual dispute is whether LDTC acts at the direction of 
ICWA. That would necessarily involv e a historical examination of LDTC's 
prior actions in the Bell Group insolvency. Mr Moss submitted that the first 
factual dispute fed into this second dispute because "no present intention" may 
leave room for an intention on the part of LDTC that it would implement the 
Second Supplemental Deeds in the future should ICWA direct it to do so. Mr 
Moss further submitted that ICWA plainly intends, if possible, to implement 
Partial Desubordination. Indeed, it has now sought declaratory relief with 
respect to those  deeds in the ICWA Applications.  
147. I note that in inter -party correspondence, an admission was made on 
behalf of LTDC that:  
"In relation to the domestic bonds [i.e. the TBGL and BGF bond issues], 
LDTC exercised no independent trustee discretion when enteri ng into the 
Deed of Settlement and was directed to do so by the sole bondholder, ICWA."  
148. Mr Moss submitted that the sole bondholder (ICWA) is not the sole 
beneficiary under the trust deeds as there is a turnover trust which has been 
held by the Western Aust ralian Court to be a validly constituted trust. The 
senior creditors of TBGL and BGF, including BGNV, are beneficiaries under 
that trust. As such he submits that it was inappropriate not to exercise 
independent trustee discretion so as to take into account  the interests of the 
senior creditors.  
149. LDTC has now sought to revoke this admission in further 
correspondence. The conflicting correspondence makes it impossible for this 
factual issue to be conclusively determined in the present application. Indeed it 
is not clear from the correspondence whether LDTC recognises the senior 
creditors at all as beneficiaries ranking ahead of ICWA, under the turnover 
trusts. LDTC is probably therefore in effect reserving the right (in the absence 
of a stay) to challenge the validity of the turnover trust as part of its defence.  
150. There are other unresolved issues relating to this second factual dispute 
that cannot be determined in the present application. For instance, LDTC 
previously delegated broad powers to ICWA under a pow er of attorney to 
conduct litigation with respect to the Second Supplemental Deeds. However, 
LDTC refuses now to say when this power of attorney took effect and ceased 
or, indeed, whether a similar arrangement exists or existed with respect to the 
present proceedings. Such a refusal could be overcome by disclosure 
obligations ahead of trial. Until that point, as Mr Moss identified, the 
documents that the court sees are only those that LDTC has chosen to put 
before the court: see Microsoft Corporation v P4 C om Ltd [2007] EWHC 746 , 
at [44] per Rimer J.  
151. Likewise, the fact that Mr Moss and Mr Snowden disputed the manner 
in which, and significance of the fact that, L DTC gave ICWA a general proxy 
to act at a meeting of creditors of BGF on 22 August 2014 leads me to the 
suspicion that there are factual controversies which are inappropriate to 
entertain on a hearing for summary judgment.  
152. Mr Snowden however said that it was appropriate to strike out or give 
summary judgment because the claim was no more than a premature quia 
timet action. In other words, it was an action brought in fear of LDTC's future 
conduct where there was no evidence to support the question of immedi acy. 
He reiterated that LDTC had no present intention to take steps to implement 
Partial Desubordination but that it would consider any request by ICWA to 
revisit the issue by reference to its obligations as trustee and the circumstances 
at the time of any  such request.  
153. He relied on Sir Andrew Morritt C's summary judgment in CIP 
Property (AIPT) v TFL  [2012] EWHC 259 (Ch), [24] and [28]:  
"there must be before the court, before it will entertain a quia timet  action, 
satisfactory evidence that the defendant is threatening or intending to do that 
which it is said he is not entitled to do, or that which, it is said, will lead to 
serious damage to the plaintiff…for the grant of a quia timet  injunction there 
must be an immediate threat to do something which requi res the intervention 
of the court to prevent it."  
154. Mr Snowden said that there was no such immediate threat in the 
present case because there were a number of hurdles in the way of achieving 
Partial Desubordination, including the release of the undertakings and the need 
for the TBGL and BGF liquidators to seek directions on Partial 
Desubordination.  
155. However clause 20 (a) (vii) of the Deed of Settlement requires LDTC 
"promptly" to seek the release of the various undertakings which currently 
block Partial Desub ordination. On the face of the wording in the relevant 
clauses of the Deed of Settlement, there may well be some immediacy on the 
facts.  
156. Striking out or giving summary judgment would prevent satisfactory 
evidence from being put before the court allowing a proper assessment of 
LDTC's intentions as to when it intends to comply with the Deed of Settlement 
and whether and how it will implement Partial Desubordination.  
157. Much could turn on the subjective intentions of LDTC as to its position 
on the Second Supplemental Deeds, Partial Desubordination and compliance 
with the Deed of Settlement. It may be that satisfactory evidence reinforcing 
or contradicting LDTC's position could arise from disclosure of its documents, 
both internal and with ICWA, a nd in cross -examination by Plaza's counsel of 
the relevant decision makers within LDTC.  
Conclusion  
158. As the claim for summary judgment and strike out is an alternative 
one, I do not need to express a concluded view because, for the reasons 
previously given,  I order a stay of these proceedings. However, if I had to 
make a decision, I would neither grant summary judgment nor strike out the 
claim