SCOR SE v Barclays Bank Plc

This is the Defendant’s (“Barclays’”) application for a stay pending the outcome of related proceedings in France, under Article 30 of Regulation (EU) 1215/2012 (the “Recast Regulation”) or pursuant to the Court’s inherent jurisdiction/case management powers.

The essential facts are not in dispute. I take the account principally from the Defendant’s skeleton argument.

Following the hearing before me, I was told that an application to stay the French Commercial Court proceedings, which had been made by the Claimant, had been dismissed, and I was provided with a copy of that judgment and submissions were made by the parties in relation to the relevance of that decision and the fact that those proceedings would now be ongoing. I was also informed that the next stage in these proceedings would be a collegiate hearing in March 2020, at which point a date for the final hearing would be set, which is likely to be between April and June 2020 depending on how many judges are to sit on that hearing.

I address the specific allegations made against Mr Derez further below, in the context of my consideration of whether the proceedings are related or not.

Article 30 of the Recast Regulation provides:

“(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 the action in the court first seised is pending at first instance, any other court may also, on 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”.

The parties were agreed that, under this head, there were essentially two questions that I had to answer. The first was whether the French criminal proceedings, which were first in time, were related to the English Commercial Court action before me. The second was whether I, as the Court second seised, should stay these proceedings, it being accepted that I had the power to do so under Article 30. The parties were also agreed that, although the civil proceedings which formed part of the criminal action were an “adjunct” to the criminal part of the proceedings, they were nonetheless civil and commercial proceedings within the meaning of the Regulation.

This Article has been considered in a number of authorities, and I was referred to a number of cases in this regard. I consider each in turn.

The first in time was the decision of the ECJ in The Tatry (Case C-406/92) [1999] QB 515. In that case the ECJ said this:

“53.

In order to achieve proper administration of justice, that interpretation must be broad and cover all cases where there is a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive.

54.

The cargo owners and the Commission contend that the adjective "irreconcilable," which is used both in the third paragraph of article 22 and in article 27(3) of the Convention, must be used in the same sense in both provisions, meaning that the decisions must have mutually exclusive legal consequences, as was held in Hoffmann v. Krieg (Case 145/86) [1988] E.C.R. 645 , 668, para. 22. They point out that the court there held, at p. 669, para. 25, that a foreign judgment ordering a person to make maintenance payments to his spouse by virtue of his conjugal obligations to support her is irreconcilable, within the meaning of article 27(3) of the Convention, with a national judgment pronouncing the divorce of the spouses.

55.

That argument cannot be accepted. The objectives of the two provisions are different. Article 27(3) of the Convention enables a court, by way of derogation from the principles and objectives of the Convention, to refuse to recognise a foreign judgment. Consequently the term "irreconcilable . . . judgment" there referred to must be interpreted by reference to that objective. The objective of the third paragraph of article 22 of the Convention, however, is, as the Advocate General noted in his opinion (paragraph 28), to improve co-ordination of the exercise of judicial functions within the Community and to avoid conflicting and contradictory decisions, even where the separate enforcement of each of them is not precluded.

56.

That interpretation is supported by the fact that the German and Italian versions of the Convention use different terms in the third paragraph of article 22 and in article 27(3).

57.

The conclusion is therefore inescapable that the term "irreconcilable" used in the third paragraph of article 22 of the Convention has a different meaning from the same term used by article 27(3) of the Convention.

58.

Consequently the answer to the fourth question is that, on a proper construction of article 22 of the Convention, it is sufficient, in order to establish the necessary relationship between, on the one hand, an action brought in a contracting state by one group of cargo owners against a shipowner seeking damages for harm caused to part of the cargo carried in bulk under separate but identical contracts, and, on the other, an action in damages brought in another contracting state against the same shipowner by the owners of another part of the cargo shipped under the same conditions and under contracts which are separate from but identical to those between the first group and the shipowner, that separate trial and judgment would involve the risk of conflicting decisions, without necessarily involving the risk of giving rise to mutually exclusive legal consequences.”

The House of Lords then had to consider the Article in the case of Sarrio SA v Kuwait Investment Authority [1991] 1 AC 32. In that case the Court of Appeal had said that it was only where the primary facts in the two cases (ie those facts which were necessary in establishing the cause of action) might be found differently, that the Article came into play. That approach was rejected by the House of Lords, and in view of the importance placed by both parties on this case, I will set out the relevant passages at length. Lord Saville, who gave the leading judgment in the House of Lords, said this:

“I cannot accept that article 22 should be interpreted or applied in this way. (sc. in the way the Court of Appeal had interpreted it).

In the first place, I can find nothing in the opinion of the Advocate General or the judgment of the European Court in The Maciej Rataj which lends support to the suggestion that a distinction should be drawn between those facts necessary to establish a cause of action and other facts and matters on which conflicting decisions might arise. On the contrary it seems to me that the case leads to the opposite conclusion.

Both the Advocate General and the European Court were at pains to emphasise that the objective of article 22 is to improve coordination of the exercise of judicial functions within the Community and to avoid conflicting and contradictory decisions, thus facilitating the proper administration of justice in the Community: see the opinion of the Advocate General [1994] E.C.R. I-5439 , 5457-5458, para. 28 and the judgment, at pp. 5473, 5478 and 5479, paras. 32, 52 and 55. On this basis the court rejected the argument that the phrase "irreconcilable judgments" should be interpreted so as to confine it to cases where the decisions would have mutually exclusive legal consequences, as Hoffmann v. Krieg (Case 145/86) [1988] E.C.R. 645 had decided was the case under article 27(3) . As the court pointed out, at p. 5479, the objective of article 27(3) is different from the objective of article 22 . Thus the court concluded, at pp. 5478, para. 53:

"In order to achieve proper administration of justice, that interpretation must be broad and cover all cases where there is a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive."

This reasoning does not suggest that the phrase "irreconcilable judgments" in article 22 should be given a limited meaning. Indeed, to limit the application of article 22 to cases where there is a potential conflict between so-called "primary" issues, so far from giving the article a broad interpretation, comes dangerously close to the argument rejected in The Maciej Rataj . If there are only to be irreconcilable judgments where one or more of "the facts which are necessary to establish a cause of action" are potentially in conflict, then at least in cases where the parties are the same, the article will be likely to be confined to situations where there is a risk that the legal consequences will be legally exclusive.

In the second place, it seems to me that the words of the article itself militate against the suggested limitation. The actions, to be related, must be "so closely connected that it is expedient to hear and determine them together" to avoid the risk of irreconcilable judgments resulting from separate proceedings. To my mind these wide words are designed to cover a range of circumstances, from cases where the matters before the courts are virtually identical (though not falling within the provisions of article 21 ) to cases where although this is not the position, the connection is close enough to make it expedient for them to be heard and determined together to avoid the risk in question. These words are required if "irreconcilable judgments" extends beyond "primary" or "essential" issues, so as to exclude actions which, though theoretically capable of giving rise to conflict, are not sufficiently closely connected to make it expedient for them to be heard and determined together. The words would hardly be necessary at all if the article was to be confined as suggested. Indeed, in that event, it seems to me that quite different words would have been used.

In the third place, it seems to me that to adopt the suggested limitation would in truth be to give the phrase "related actions" a special "English" meaning, which would be contrary to what the court decided in The Maciej Rataj , where it was pointed out, at p. 5478, para. 52, that since that phrase did not have the same meaning in all the member states, it was necessary to give it an independent interpretation. Evans L.J. defined "primary" issues as those necessary to establish a "cause of action," and, it would seem, distinguished what he described as "secondary" or "nonessential" issues by reference to the principles of issue estoppel to be found in our common law. However, those who framed article 22 can hardly be suggested to have had in mind our English concepts of "cause of action" or "issue estoppel" when using the phrase "irreconcilable judgments" any more than courts in other Community countries faced with interpreting or applying article 22.

In the fourth place, I take the view that to attempt to analyse actions so as to distinguish between different kinds of issues would be likely to add to the complexity of applications under article 22 and thus to the expense and delay in dealing with them. Instead of simply considering whether the actions were so closely connected that it was expedient that they should be heard and determined together to avoid the risk of conflicting decisions, the parties and the court would have to embark upon a sophisticated and difficult exercise of legal analysis, made more complicated by the fact that the court would be dealing not with actual judgments, but with what judgments yet to be given would be likely to contain. It must be borne in mind that article 22 is concerned not with the substantive rights and obligations of the parties, but with the ancillary and procedural question as to where in the Community those rights and obligations should be heard and determined. There is nothing in the Convention that suggests that it is in the interests of the Community that litigation on this question should be made more expensive and timeconsuming than is necessary. If, for example, the difficulties encountered by our courts in trying to apply our sophisticated law of issue estoppel are anything to go by, and such concepts are used for the purpose of article 22 applications, this would in my view be calculated to make such applications a peculiarly complicated kind of what Lord Bingham of Cornhill C.J. has described as "satellite litigation," for what in my view would be no good reason.

Finally, it is noteworthy that Evans L.J. [1997] 1 Lloyd's Rep. 113 , 120-121 drew attention to the fact that in The Maciej Rataj [1994] E.C.R. I-5439 the Advocate General said in his opinion, at pp. 5457-5458, para. 28:

"The court second seised should therefore be able to have recourse to the machinery envisaged by [article 22] whenever it considers that the reasoning adopted by the court hearing the earlier proceedings may concern issues likely to be relevant to its own decision."

Evans L.J. considered that since the opinion referred to issues which arise in the earlier proceedings the word "reasoning" should be read accordingly; and then seems to have relied on this when drawing the distinction between "primary" and other issues to which I have already referred. In the Italian in which the opinion was actually written, however, the word used is "questioni" and though "issues" is doubtless a perfectly acceptable translation, it would not appear that the Advocate General was using the words he did in any special legally technical sense.

For these reasons, I am of the view that there should be a broad commonsense approach to the question whether the actions in question are related, bearing in mind the objective of the article, applying the simple wide test set out in article 22 and refraining from an over-sophisticated analysis of the matter. It seems to me that this was the approach adopted by Mance J. [1996] 1 Lloyd's Rep. 650 , who concluded that the allegations (common to both proceedings) in relation to whether the negotiations leading to the sale were conducted by or on behalf of the defendant, as well as the circumstances of the Grupo Torras group in Spain and the defendant's relationship with it, raised a risk of irreconcilable judgments in circumstances where the two actions were so closely related that it was expedient that they should be heard and determined together to avoid that risk. In particular Mance

J. drew attention to the fact that one of the persons alleged in Spain to have been acting on behalf of the defendant in the negotiations and otherwise was the same individual who is alleged in the English action to have made the misrepresentations on behalf of the defendant in the same negotiations, in circumstances where these allegations are hotly denied in both sets of proceedings.”

The nature of the comparative exercise was then considered by the Court of Appeal in Research in Motion UK v Visto [2008] 2 All ER (Comm) 560), who said:

“30.

It should be observed that what the House of Lords was considering in Sario were two claims , the first Spanish, the second English, each by the same plaintiff. What had to be considered is whether, if those two claims went forward in parallel there was a risk of inconsistent judgments. Here things are different. The comparison we are invited to make is between Visto's defence in the English action and its claim in the Italian action. The defence came after the Italian proceeding — indeed relies on the taking of the Italian proceedings as part of the reason why it is said a declaration should be refused here.

31.

So we have the topsy-turvy proposition that the English court is said to be “first seised” of a “related action” by reason of the later, Italian, action.

32.

The position is rendered even more topsy-turvy by Mr Carr's acceptance that the English court (which he claims is first seised of the Art.96 claim) could not proceed to decide that claim (and the defence) until the Italian court had first dismissed the Italian claim. It is a condition precedent to an Art.96 claim that there should be a “losing party.” So it is Mr Carr's submission that the

Italian court, assuming it got the point of dismissing the

“torpedo” claims, could not on go on decide the Art.96 claim although it would obviously be best placed to do so. It would get to the very brink, but have to stop there and let the English court take over.

33.

Yet another absurdity if Mr Carr is right is that it would be for the English Court to decide whether there had been abuse of process — “bad faith or gross negligence” — in Italy.

34.

It is tolerably clear that one of the objects of the Regulation was to lay down rules for deciding which, of two or more courts, should decide a claim. Broadly the thrust is that the first seised does that, and then its judgment is to be recognised by the others. Standing back, it would at first sight seem that whole purpose would be subverted if Visto are right. The link is said to be the Italian action. The Italian courts have to be seised of their own action before the link can arise, so how can it be said as soon as it is started, the English court becomes first seised?

35.

One answer to that potential oddity might be that it is built into the scheme of the Regulation itself. The Regulation relies on mechanical tests — the mechanical test of the court first seised, and the further largely mechanical test in Article 30 as to how one ascertains which court is first seised. In determining these matters what is important is the action , not the claim . The trouble with mechanical tests is that they are sometimes prone to yield results which do not coincide with the clear merits or even common sense.

36.

Happily that is not the result here. The reason for that lies in the operation of Article 28 . That Article deals with related actions; contrast Article 27 which deals with actions involving the same cause of action. Those two concepts are different. Article 27 involves a comparison of claim documents to see of causes of action in two documents are the same — see Lawrence Collins LJ in Kolden Holdings v Rodette Commerce Ltd [2008] EWCA Civ 10 at para 93. Article 28 involves a different concept, tested by reference to the matters referred to in Article 28(3) . The exercise of seeing whether actions are related may well require one to look beyond the claim documents and into the defences. In the present case it is this feature which potentially raises the topsy-turvy situation identified above. If one can look at the Defence, and if the Defence relies on postclaim matters, then there is scope for the relationship between actions to come from post-claim matters. Where the post-claim matter is in fact the commencement of the second proceedings, then one begins to travel towards the oddity already identified. That possibility arises because of the mechanical test of first seisin.

37.

However, that is not the result of the application of Article 28 in the present matter because its effect is not entirely mechanical. It requires an assessment of the degree of connection, and then a value judgment as to the expediency of hearing the two actions together (assuming they could be so heard) in order to avoid the risk of inconsistent judgments. It does not say that any possibility of inconsistent judgments means that they are inevitably related. It seems to us that the Article leaves it open to a court to acknowledge a connection, or a risk of inconsistent judgments, but to say that the connection is not sufficiently close, or the risk is not sufficiently great, to make the actions related for the purposes of the Article. Mechanics do not, for once, provide a complete answer.

38.

The relevant parts of the Defence in the present case are set out above. From that the following things can be seen. (It must be remembered that for these purposes the Counterclaim, which is conceded to be a separate action for these purposes and to come second, is not relevant at this point in the argument). First, the Italian proceedings are said to be “spurious”. It does not matter whether that amounts to an allegation that they are an abuse; we assume (in favour of the Visto) that it does, though the Defence does not go further and plead Article 96 . Second, commencement of those proceedings is but one item in a wider field of misconduct which is said to disentitle the claimant to the declaration it seeks. It is not the only item; it is not even the main item. It is one of the things which are thrown into the melting pot. Third, if one looks at them, and compares them with the Italian action, it does not appear at all expedient that the claims should be tried together. The English claim is differently based. The English Defence raises matters said to go to whether an English court should grant a declaration in relation to that different claim, and raises matters not raised in the Italian proceedings. It does not seem to us to be at all expedient that those actions can be heard together, not least because we do not see how they can be, whether here or in Italy. Furthermore, if one is entitled to form a value judgment of the closeness of the relationship, then it is not particularly close at all. The substance of the English proceedings is declaration about an English patent and a particular product. The substance of the Italian proceedings is other designations, but not focusing on the same product. The abuse of Italian process is a link between them, but it is the only link; it is only in relation to that point that there is a risk of inconsistent judgments. It does not seem to us that Article 28(3) requires one to find that any possibility, no matter how small the point, requires the conclusion that the actions are related. One still has to consider expediency. We consider that the area of potential conflict is not sufficiently great to lead to the conclusion that expediency would require one trial even if it were theoretically possible.

39.

For those reasons, therefore, we do not consider that the

English and the Italian proceedings are “related” within the meaning of the Regulation.” (Footnote: ¹)

Finally, the Claimant pointed out that there had been a debate in the authorities as to what was meant by “expedient” in the Article, with some authorities taking the line that this meant possible or capable, and others suggesting that the relevant synonym was “desirable”. At the hearing before me, both parties were agreed that this debate has now been resolved by the Court of Appeal in Privatbank v Kolomoisky [2019] EWCA Civ 1709, where the Court of Appeal said, at paragraph 191:

“191.

We agree with Ms Tolaney QC that the approach of Rix J in Centro Internationale and of Eder J in Nomura is to be preferred to that of Mr Buxton QC, Neuberger J and Cooke J.

Both Rix J and Eder J correctly focus on the language of article

28/article 34. The word "expedient" is more akin to "desirable", as Rix J put it, that the actions "should" be heard together, than to "practicable" or "possible", that the actions "can" be heard together. We also consider that there is force in Ms Tolaney's point that, if what had been intended was that actions would only be "related" if they could be consolidated in one jurisdiction, then the Convention would have made express reference to the requirement of consolidation, as was the case in article 30(2) of the Recast Brussels Regulation .”

However, following the hearing, my attention was drawn to the more recent Court of Appeal decision in Euroeco Fuels (Poland) Limited and others v Sczezin and Swinoujscie Seaports and others [2019] EWCA Civ 1932. In that case, the Court of Appeal referred, without apparent disapproval, to the decision in Privatbank. However the Court went on to hold that, on the facts of that case, the fact that the English action in issue could not be tried together in the same court by the same judge meant that the first instance judge in England had had no jurisdiction either to decline jurisdiction or to stay jurisdiction. As Bean LJ, who delivered the leading judgment, put it:

“52.

If the judge's decision to decline jurisdiction is upheld or even if the English claim for libel and malicious falsehood is stayed the Claimants could, of course, start similar proceedings in Poland. But on the material before us there appears to be no real possibility of such a claim and the existing claim for nuisance brought by the Defendants being "heard and determined together".

53.

In these circumstances I consider that the judge had no discretion to decline jurisdiction nor to order a stay under Article 30 of the RBR , and that the appeal must be allowed….”.

It was suggested by the Claimant that this case was authority for the proposition that if the two claims could not be heard and determined together in the same Court, then they could not be related. Accordingly, the suggestion was that this later Court of Appeal decision had reverted to the proposition that in order to be related actions, it must actually be possible for the actions to be heard and determined together, and that, in the event that this is not so, the English Court has no jurisdiction either to decline jurisdiction or to stay its own proceedings. The Claimant suggested various bases on which the later judgment could be read as consistent with the earlier one, even though it was accepted that each of these was not made explicit.

The Defendant, for its part, submitted that the Court of Appeal in Euroeco could not be regarded as disapproving Privatbank, since it referred to the earlier decision without any disapproval and indeed relied on it as setting out the relevant principle. Alternatively, the Defendant submits that if the later case is inconsistent with the earlier, it was decided per incuriam and is wrong.

I derive the following principles from the above authorities:

The Defendant submits as follows:

It is unnecessary for there to be a legal overlap between the proceedings; a factual overlap is sufficient: see Sarrio. Here the factual overlap between the proceedings is clear. Thus, the summary of facts and misconduct alleged against Mr Derez in the RAPOC are the same or substantially overlapping to the facts alleged in the Citation Directe. The evidence on which SCOR relies in both sets of proceedings is largely the same. The conduct of Mr Derez, and the fundamental issue of whether he misused SCOR’s confidential information, is at the heart of both sets of proceedings.

Whilst a legal overlap is not necessary, in the present case, there is in fact a clear legal overlap between the English Proceedings and the French Criminal Court Proceedings:

Proceedings are inextricably linked; the misconduct alleged against Mr Derez is a

“necessary prerequisite” to any liability on the part of Barclays.

The Claimant, for its part, submitted that there were two overarching reasons why these actions could not be regarded as related.

As to the first of these points, the Claimant submitted as follows:

Turning to the Claimant’s second point, SCOR does not contend that the actions are unconnected. It is plain that both arise out of a shared factual background. However, the degree of connection cannot be said to be more than modest and they are certainly, it submits, not so closely connected that it would be expedient to hear and determine them together to avoid the risk of irreconcilable judgments from separate proceedings (the test as stated in Nomura at §45).

For the reasons set out above, there is now potentially a dispute of law about whether proceedings can be related if the claims cannot in fact be tried together even if it would be desirable to do so. For the purposes of this judgment, I am prepared to assume that the correct test is that set out in Privatbank. Accordingly, if it would be desirable to try the claims together, then the proceedings will be treated as related even if they cannot in fact be tried together (although this latter factor will be a powerful factor against the grant of a stay at the stage of the exercise of discretion).

I accept also the Claimant’s submission that the relevant comparison for these purposes is between the French criminal proceedings and the English proceedings, because the French criminal court was first seised of the matter, and because that action included a claim which is civil and commercial as well as purely criminal claims. I return to the relevance of the French civil claims below.

Thirdly, it is, as I understand it, common ground that, as a matter of fact, the proceedings cannot be tried together. I would in any event have accepted the Claimant submission to this effect.

The question then becomes whether, hypothetically, it would be desirable to try the two actions together in order to avoid the risk of inconsistent judgments. In this regard, and as regards the two points made by the Claimant:

Overall, I have concluded, on the basis the application of the test in Sarrio, as interpreted in later cases including in particular Privatbank, that the French criminal proceedings and the English proceedings are related. I move on to consider the exercise of my discretion on this basis.

Of course, if the actual test is that which may be suggested by the Euroeco case, then the proceedings would not be related, and I would have no discretion to exercise.

I turn to the second of the issues posed on this application, namely whether, if the actions are related, I should exercise my discretion (it being common ground that this is a question of discretion) to stay the current proceedings.

Both parties were agreed as to the starting point, which was the decision of the ECJ in Owens Bank v Bracco [1994] QB 509, in which Advocate General Lenz set out the three non-exhaustive factors relevant to the exercise of the discretion: (1) the extent of the relatedness of the proceedings and the risk of mutually irreconcilable decisions; (2) the stage reached in each set of proceedings; and (3) the proximity of the courts to the subject matter of the case. However, the case law stresses that the factors are not exhaustive and that the circumstances of each case are of particular importance: The Alexandros T [2014] 1 All ER 590 at §92 and 97 per Lord Clarke.

Barclays submits that where actions are related, there is a strong presumption for a stay in favour of the applicant or, at the very least, in cases of doubt the Court should grant a stay, relying on Virgin Aviation Services Ltd v CAD Aviation Services [1991] ILPr 79, which was in turn referred to by Advocate General Lenz in Owens Bank v Bracco, who said at [75]:

“It would therefore be appropriate in case of doubt for a national court to decide to stay its proceedings under Article 22: see in this regard the judgment of the High Court (Ognall J) of 31 January 1990 in Virgin Aviation Services Ltd v CAD Aviation Services [191] I L Pr 79, in which the court held that there was a strong presumption in favour of allowing an application for a stay....”.

However, as SCOR pointed out, this approach was not adopted by Rix J in Centro Internationale Handelsbank AG v Morgan Grenfell [1997] CLC 870 who said at 891-892 that “I do not see why the normal rule should not apply, which is that the burden of proof or persuasion is on the applicant”.

Barclays in their turn sought to rely on the words of Lord Clarke in The Alexandros T, ref supra, who said that “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…..”; but SCOR riposted by relying on the words of the Chancellor in Office Depot International BV v Holdham S.A. [2019] 7 WLUK 623, who said at [53]:

“Looking at Lord Clarke's decision in Starlight I do not think that he was saying that he thought there was a presumption in favour of a stay. He was simply recording… Advocate General Lenz's opinion that referred to Mr Justice Ognall's judgment in Virgin Aviation. The concept of there being a stay in the case of doubt is, I think, quite different from the concept of a broad presumption in favour of a stay. Both cannot be correct. Advocate General Lenz was undoubtedly advocating the former and Lord Clarke was following his approach.”

I have concluded that there is in fact no presumption at all of this type, for the following reasons:

In my judgment, the answer to this question must be yes, in the light of the decision in Privatbank. Indeed, both parties were agreed at the hearing that this was the case.

In my judgment, this is the nub of the question that I have to decide.

I set out Barclays’ submissions in the following paragraphs.

The first factor identified by Advocate General Lenz in Owens Bank v Bracco is the extent of relatedness of the proceedings and the risk of mutually irreconcilable decisions. In the present case, there is a large degree of overlap between the two sets of proceedings and a significant risk of inconsistent decisions as explained above. Whilst it may be the case that, as a matter of English procedural law, the French Criminal Court Proceedings would not give rise to a res judicata or issue estoppel for the purposes of the English Proceedings (because Barclays is not party to the French Criminal Court Proceedings) this does not assist SCOR. In particular:

As for the stage reached in each set of proceedings, the second of the relevant factors:

As for the third of Advocate General Lenz’s factors (proximity of the courts to the subject matter of the case), it is obvious that the French court has a much greater proximity. In particular: (i) SCOR’s claims are governed by French law, and it would be more appropriate for the French court (rather than the English court) to determine matters of French law; (ii) the events in question took place in France; (iii) SCOR, Mr Derez and Covéa are all French; (iv) many of the witnesses are based in France and native French speakers; (v) contemporaneous documents are also likely predominantly to be in French; (vi) Barclays’ engagement documentation with Covéa was executed by its Paris branch office, and the engagement agreement is in French, governed by French law and includes an exclusive jurisdiction clause in favour of the Paris Courts.

Finally, the Defendant submits that there are a number of other factors which support their application:

I turn to SCOR’s submissions on discretion.

Dealing first with the degree of relatedness, the Claimant contends that there is little connection between the French criminal proceedings and the current proceedings, for the reasons I have already outlined.

Secondly, as to the relative state of the proceedings:

Finally, as to the issue of proximity of the courts to the subject matter of the case. The Claimant accepts that the centre of gravity of the dispute is more closely connected to France. That said, it contends that Barclays is domiciled in England and it is currently unknown by SCOR whether, or to what extent, confidential information was received and used by it in England. In any event, given that the stay sought is purely temporary in nature, this factor carries relatively little weight.

I turn to my conclusions on the question of discretion, which are as follows:

Overall, I conclude that Barclays has not shown any compelling reason for a stay of these proceedings.

I can summarise my conclusions, overall, as follows:

Overall, I conclude that, in the exercise of my discretion, and on the assumption that I have such a discretion despite the possible suggestion, based on the Euroeco case, that such a discretion only arises where cases can in fact be tried together, I should not stay these current English proceedings.