BARCLAYS BANK PLC V ENTE NAZIONALE DI PREVIDENZA ED ASSISTENZA DEI MEDICI E DEGLI ODONTOIATRI

[2016] EWCA Civ 1261, Court Of Appeal (Civil Division), Lord Justice Moore-Bick, Vice-President of the Court of Appeal, Civil Division, Lord Justice Tomlinson and Mr Justice Arnold 8 December 2016

Jurisdiction - Exclusive jurisdiction clause - Breach of jurisdiction clause - Same or different cause of action - Discretionary stay of related action - Summary judgment - Brussels I Regulation (EC) No 44/2001, article 5(3)

The claimant was an English bank and the defendant ("ENPAM") an Italian pension fund. Through a transaction, entered into by a Conditional Asset Exchange Letter (the "Letter Agreement"), ENPAM exchanged fund assets for securities which were in the form of credit-linked securities and involved more risk than appropriate for its profile. There was subsequently also a Professional Client Agreement including terms of business (the "PCA"). Both agreements were governed by English law and contained English jurisdiction clauses using different wording: the first was exclusive, the second non-exclusive. ENPAM lodged a claim against Barclays before the court in Milan on the basis that it had incurred a major loss in the transaction and Barclays must make good that loss on the basis of the advice and ancillary services provided by Barclays in connection with the transaction. ENPAM's claim in Milan was structured as a "main claim" for damages for pre-contractual liability and a "secondary claim" for nullity of the relevant agreements. Jurisdiction was therefore assessed by the Italian court based on the main claim and article 5(3) of the Brussels I Regulation (occurrence of the harmful event), regardless of the existence of any jurisdiction clause. Barclays disputed before the Italian court that the jurisdiction clause was null and void and before the English court sought an indemnity for breach of jurisdiction clause. ENPAM sought a stay arguing that the actions involved the same cause of action (article 27) or were related (article 28). At first instance, the judge declined to stay the proceedings and gave summary judgment for Barclays on the issue that the Milan proceedings constituted a breach of jurisdiction clause. ENPAM had subsequently amended its claim in Milan to correct deficiencies identified by the judge in his decision, with purportedly retroactive effect until the first date of the claim, raising issues under article 27 of the Judgments Regulation.