Financial List sinks Venice’s application to strike-out parts of Intesa and Dexia Banks’ Pleadings

26/11/20

On 9 November 2020, following a one day hearing on 5 November, Mr Justice Butcher (sitting in the Financial List (Commercial Court)) handed down judgment rejecting an application by the Defendant, the Municipality of Venice (“Venice”), to: (1) strike-out parts of the claim brought against it by two Italian banks, Banca Intesa Sanpaolo and Dexia Crediop (“Banks”) for declaratory relief in relation to certain interest rate swaps (“Swaps”) entered into between the parties in 2007; or (2) stay the Financial List proceedings (“English Proceedings”) pending the resolution of a jurisdictional appeal in proceedings involving the same parties pending before the Italian Courts (“Italian Proceedings”).  

The Swaps provided for an exclusive choice of jurisdiction in favour of the English courts.  Prior to executing the Swap documentation, the parties had entered into a Mandate Agreement, which contained an exclusive choice of jurisdiction in favour of the Italian courts. 

In June 2019, Venice commenced the Italian Proceedings.  Two months later, the Banks commenced the English Proceedings seeking declaratory relief in broad terms as set out in the Claim Form. 

Venice initially indicated it would challenge jurisdiction, but subsequently filed an unconditional acknowledgment of service submitting to the jurisdiction, and indicated it would defend the Banks’ claims.  The Banks then served their Particulars of Claim in the English Proceedings, and, in Italy, served substantive defences to Venice’s claims along with a challenge to the Italian courts’ jurisdiction.

On the day on which Venice’s defence was due in the English proceedings, Venice instead served its application to strike-out and/or for a stay.  Venice’s primary argument was that certain paragraphs of the Banks’ Particulars of Claim which referred to the Italian Proceedings and to the Mandate Agreement amounted to an abuse of process justifying striking-out under CPR r. 3.4(2)(b).   The paragraphs were said to be abusive because, Venice argued, they expanded the scope of the claim beyond that of the claim form (in respect of which Venice had submitted to the English Court’s jurisdiction) and encroached upon the content and subject matter of the Italian proceedings.

In agreement with the Banks’ submissions, Butcher J concluded that the disputed paragraphs did not plead any claim distinct from that which appeared in the Claim Form; the relief sought in the Claim Form was, in any event, wide enough to extend to the Italian Proceedings; and the disputed paragraphs were not irrelevant and, therefore, did not constitute an abuse of process.

In relation to Venice’s application for a stay on case management grounds, relying on the decision of Bryan J in MAD Atelier International BV v Manes [2020] 3 W.L.R. 631 (here) Butcher J concluded that in circumstances where the English Court had jurisdiction under Articles 25 and/or 26 of the Brussels Regulation, Venice was required to show exceptionally strong grounds to justify a stay, which it had not done.  Moreover, the presence of exclusive jurisdiction clauses in favour of the English courts in the swap documentation weighed against a stay, as did the fact that such a stay would not be consistent with the operation of Art. 29 and 30 of the Brussels Regulation (which were not engaged in this case).

The judgment is here.