Tag: article 32

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Simon v Tache. Interesting issues on post-Brexit Brussels lis pendens, and on moment of seizure in amended claims.

Simon v Tache & Ors [2022] EWHC 1674 (Comm) is an interesting judgment which one assumes is very appealable given the untested Withdrawal Agreement and other angles.

At issue is i.a. whether Article 67 Withdrawal Agreement requires both sets of proceedings which are a candidate for Brussels Ia’s Article 29-30 lis pendens /related cases provisions, to have been pending prior to Brexit Implementation Date and what date needs to be considered the date of seizing.

Claimants argue, that the Belgian Proceedings, which I outline below, could only have become related on 3 May 2021 by the lodging of the 3 May Submissions, and that the English Court only became seized of the English proceedings after 31 December 2020, either on the making of Service Out Application or on the subsequent issue of the English Proceedings. On this basis it would not be open to the Defendants in the English proceedings to rely upon Article 67 as applying Articles 29 and 30 of Brussels Recast to the English Proceedings.

Claimant is a French national living in London. She is a medical doctor who previously practiced. She now focuses on art and design. Defendants are Belgian nationals, contemporary art dealers with a gallery website in English. This element notably raises issues whether the contract could qualify as a consumer contract. Defendants deny this, citing the very example I often give in class when teaching the relevance of language in the context of the Pammer Alpenhof criteria: the very use of English on websites, particularly in the art, design or hospitality sector in cities like Brussels are hardly an indication of direction of activities outside the location. The contract being a consumer contract seemingly was not flagged in claim form or submissions, it only came up at hearing.

Claimant and defendants having met in Paris, various artworks were delivered to claimant’s Paris address. Lex contractus is disputed [20]. The relationship soured and Belgian libel proceedings by defendants in the E&W proceedings were initiated end of October 2020. End of March 2021 Dr Simon was given permission to serve out. Her application mentioned the Belgian proceedings but argued that these were unrelated, ia in light of the different (non)contractual basis of those proceedings [35]. A claim form was sent to defendants’ lawyers early April 2021 and the claim form was filed 10 May 2021. On 3 May the defendants in the E&W proceedings amended thier Belgian claim, adding a request for declaration of non-liability: in other words they requested the Belgian court to declare that there was no wrongdoing on their part in the contractual relationship.

End of October 2021 the first instance Belgian court held it does have jurisdiction, but that no damage was proven. That court however declined to rule on the claim for a negative declaration because the allegations were before the English court. The Belgian court’s dictum on that issue is very brief, declaring only ‘“Whereas the ensuing dispute was never resolved and is currently the subject of a lawsuit in London, such that this court will refrain from commenting on the merits of that case.” : it did not specify why which clearly is a failure on its part.

[50] it is the Defendants’ case that the Belgian court was first seized on 3 May 2021, before the E&W Court was first seized on 10 May 2021 on the issue of proceedings. On the other hand, it is Dr Simon’s case that the E&W Court was first seized on the making of the Service Out Application and/or the making of the Service Order on 30 March 2021, alternatively on the issue of the Claim Form on 10 May 2021, but that the Belgian court was only seized when the Defendants’ claim for a negative declaration was filed on 5 August 2021.

It is undisputed [52] that as a matter of Belgian procedural law, it would be open to Dr Simon to raise a counterclaim in respect of the causes of action that she seeks to pursue by the English Proceedings in the Belgian Proceedings, and to do so notwithstanding that they are now before the Belgian Appeal Court. Expectations of the Court of Appeal ruling varied between one and five years [54] however in the end that Court surprised all and held after the English judge’s draft judgment had been circulated.

In November 2021 Dr Simon at her turn added a claim to her English claim form, one in dishonesty.

The judge holds [74] that BIa continues to apply to new claims added to proceedings commenced prior to 31 December 2020 and claims against new defendants joined to such proceedings after that date. He refers to  On the Beach Ltd v Ryanair UK Ltd [2022] EWHC 861 (Ch) in support (acknowledging that that case is not authority to him and that the parties in that case were in agreement on the issue).

On the issue of seizure, the judge holds [92] that this must be linked to the formal lodging of a claim form in order to issue proceedings, rather than the taking of some preliminary step to obtain permission with regard to the service of proceedings which might never be issued. I have sympathy with the view [85] that this gives the other party a great opportunity to torpedo proceedings.

‘“the same cause of action, between the same parties” is judged, despite an acknowledgment of EU autonomous interpretation, with reference to Belgian procedural law and expert reports on same [103]. That must be a vulnerable position.

Conclusion on A29 is that a stay must be ordered [114] and obiter [120] that one would have been ordered on A30 grounds.

Service out is discussed [121] in a bit of a vacuum because of course is BIa applies then service out is not required. Here reference is made to Rome I’s applicable law as an element of the gateway requirements (contract governed by English law) (held: no: Belgian law is prima facie lex contractus [134], with discussion ia of the consumer title. As a pudding, forum non conveniens is considered and this is surely where the jurisdictional arguments become excessive per Lord Briggs’ speech in Vedanta.

Then comes the final pousse-café: the Belgian Court of Appeal, unexpectedly fast, found it had no jurisdiction (this may be appealable to the Belgian Supreme Court), leaving the possibility of a negative conflict of jurisdiction which the parties were invited to comment upon.

A case to watch.

Geert.

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The Belgian DPA yet again on processing of activities and Article 3(1) v 3(2) GDPR. Google appeals a prime example of circular reasoning.

The Belgian Data Protection Controller (DPA)’s decision of March 2022 (thank you Peter Craddock for alerting me to it at the time) has been travelling with me since it was issued mid March 2022: a late posting, I realise. There is however follow-up because Google have appealed.

The case concerns a classic ‘right to be forgotten’ aka delisting request, which Google refused, made by a practising solicitor with a criminal conviction and disciplinary measures taken against him. Google was rebuked, but not fined, for not dealing with the request promptly. However in substance the DPA agreed with Google’s refusal to delist, citing the link of the convictions to the applicant’s current profession, the recent nature of the conviction, and the severity of the facts.

This post however wants to signal the issue for which Google have appealed: the territorial reach of the GDPR under Article 3(1) v 3(2) GDPR,  as also explained in the European Data Protection Board (EDPA) December 2019 guidelines on the territorial scope of the GDPR (and something which the Belgian Court of Appeal has grappled with before, albeit not in the 3(1) v 3(2) setting).

Article 3(1) of the GDPR applies to “the processing of personal data in the context of the activities of an establishment of a controller or processor in the Union, regardless of whether processing takes place in the Union or not“. Article 3(2) applies the GDPR to “the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to (a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union, or (b) the monitoring of their behaviour as far as their behaviour takes place within the Union“.

Google Ireland was fast out off the picture by consent among the parties and the DPA [39-40]: it had no role at all in any of the processing. Google LL.C. admitted [44] that Article 3(1) applies to it, while Google Belgium [53] posits that as a mere internal consultancy /lobbying outfit for the Google group, it, too, has no role in the processing of the data.

Citing earlier decisions and CJEU Google Spain, the DPA nevertheless takes a broad view of ‘data processing’, arguing [64] that Google Spain identifies an ‘inextricable link’ between the various units of a group as sufficient to trigger DPA jurisdiction, even if one of these units has no role in the data processing.  While this reasoning ([68] and [71] in particular) suggests the wide notion of inextricable link triggers Article 3(1), in subsequent paras ([69] in particular) suggest the opposite causality: suggesting that because Article 3(1) applies, the activities are inextricably linked. Clearly, as Peter Craddock had pointed out before (I read it at the time but cannot find the source anymore I fear) that is a case of circular reasoning.

For Google, application of the GDPR to the US based entity as opposed to the EU based ones clearly is of significant difference. Its appeal with the Court of Appeal will be heard in the autumn.

Geert.

EU private international law, 3rd. ed. 2021, 2.256 ff.

 

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Lis alibi pendens denied traction in Lotus v Marcassus Sport.

[2019] EWHC 3128 (Comm) Lotus v Marcassus Sport Sarl concerns the application of Articles 29-30 Brussels Ia – the lis alibi pendens rules.

Lotus, an English company, is a well-known manufacturer of cars. By a series of four written contracts entered in 2016, Lotus appointed Marcassus, a French company in the business of distributing sports cars, as a non-exclusive dealer and authorised repairer of Lotus cars in Toulouse and Bordeaux. Each of these contracts was governed by English law and provided for the non-exclusive jurisdiction of the English courts.

In September 2018 Lotus gave notice terminating one of the four agreements. It is common ground that the parties’ overall relationship thereafter terminated. Marcassus then brought proceedings in the Toulouse Commercial Court, claiming loss of profits and bonuses and seeking to enforce contractual penalties. A summons was filed with the Hussier de Justice on 21 December 2018 for onward transmission to the Foreign Process Section of the High Court for service on Lotus, summoning Lotus to appear in Toulouse on 26 March 2019. Marcassus’ claim was filed at the Toulouse Commercial Court on 7 January 2019. Lotus did indeed appear at the hearing on 26 March 2019 and has served a defence disputing the claim, but not claiming in respect of or relying on Marcassus’ non-payment of the 2018 invoices. Lotus offered to undertake not to make such a claim in the Toulouse proceedings hereafter, provided of course that these proceedings were permitted to continue. Meanwhile, on 13 March 2019, Lotus issued these proceedings claiming the amounts due under the 2018 invoices. Marcassus was served with the claim form on 24 April 2019.

Phillips J first of all (at 15 ff ) deals with the issue of which course was ‘seized’ first (compare MB v TB). Lotus contended that Marcassus’ application should fall at the first hurdle because Marcassus has not demonstrated when, if at all, the summons in the Toulouse proceedings was received by the “authority responsible for service” of that summons for the purposes of A32 Brussels Ia, and so cannot establish that the Toulouse court was seised before the English court was seised by the issue of the claim form on 13 March 2019. Marcassus’ case is that the relevant authority is the Hussier de Justice, it being accepted that he received the summons on 21 December 2018. But, in the alternative, if the relevant authority is the Foreign Process Section of the High Court (as Lotus contends), Marcassus invites the inference that it was received by that authority shortly after that date, but in any event before 13 March 2019. Marcassus points to the fact that Lotus appeared before the Toulouse court on 26 March 2019 and has taken no point on service in those proceedings.

Phillips J decides not to hold on this point given that he rejects Article 29 lis alibi pendens anyway – however he indicates he does not find Lotus’ assertion very attractive.

On Article 29, Marcassus accepted that the proceedings, whilst between the same parties, do not presently involve the same “cause of action” however argued that the court could take into account the likely future shape of the proceedings, namely, that Marcassus would seek to set-off and counterclaim the very same claims it has brought in Toulouse. This approach however cannot fly per CJEU C-111/01 Gantner, at 31: in order to determine whether there is lis pendens in relation to two disputes, account cannot be taken of the defence submissions, whatever their nature, and in particular of defence submissions alleging set-off, on which a defendant might subsequently rely when the court is definitively seised in accordance with its national law” and the Article 29 route was duly dismissed.

On Article 30, the claims were found not to be ‘related’ on grounds of Lotus having secured an exclusion of set-off in the contract (Phillips J spent some time debating whether the contract did include such clear exclusion of set-off). This clause effectively keeps the claims on various invoices at arm’s length.

Even had Article 30’s conditions been met, the case would not have been stayed on grounds that the judge (unlike in A29 cases) has discretion whether to do so. Referring to The Alexandros T, at 44: ‘it is obvious that these proceedings should be permitted to continue so that the question of whether clause 29.2 is an effective no set-off clause is determined in this jurisdiction. That issue. (sic) which does not arise in the Toulouse proceedings (limiting the extent of “relatedness”), is an issue of the interpretation of an English law contract (establishing close proximity with this jurisdiction) and can be determined speedily in a summary judgment application (indicating that the stage proceedings have reached is not a factor against this jurisdiction). Further, the parties have expressly agreed to the jurisdiction of the English courts, albeit on a non-exclusive basis.

Application dismissed.

Geert.

(Handbook of) European Private International Law – 2nd ed. 2016, Chapter 2, Heading 2.2.14.5

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