|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Awendale Resources Incorporated v Pyxis Capital Management Ltd  EWHC 1286 (Ch) (22 May 2020)
Cite as:  EWHC 1286 (Ch)
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (CH D)
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
B e f o r e :
| AWENDALE RESOURCES INCORPORATED
|- and -
|PYXIS CAPITAL MANAGEMENT LIMITED
Mr Paul Burton (instructed by Blake Morgan LLP) for the Claimant
Hearing dates: 30 April 2020
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date and time for hand-down is deemed to be 2 pm on 22 May 2020.
Tom Leech QC :
i) Mr Mikhail Movshevich and Mr Alexander Nikolaev were the ultimate beneficial owners of Melward although Mr Nikolaev had complete control of the company.
ii) On 22 April 2015 Infinitum acquired 500 shares in Pyxis through Ms Papaioakeim and on 19 May 2015 it acquired 250 shares again through Ms Papaioakeim.
iii) Hatley Investments Ltd ("Hatley") holds the remaining 41 shares or 2.5% through Mr Christodoulou but is essentially controlled by Mr Nikolaev through Melward.
iv) Until 11 January 2016 Mr Andreou was the sole director of Pyxis but on that date Despo Efstathiou was appointed as a director to be replaced by Ivi Nuska on 14 October 2016 to be replaced by Ms Papaioakeim on 26 May 2017.
v) On 15 November 2017 Mr Andreou resigned as a director of Pyxis and his resignation took effect that day.
The Loan Agreements
The Cypriot Derivative Claim
i) Infinitum was identified as the Claimant and the heading stated that it was bringing the claim in its capacity as a shareholder in Pyxis and that it was a derivative or representative action.
ii) Mr Andreou, Awendale and Pyxis were identified as the Defendants although no relief was claimed against Pyxis itself.
iii) The primary relief which Infinitum claimed was a "declaratory judgment" for deceit, fraud, conspiracy, conspiracy to defraud, unlawful means conspiracy, damage by illegal means and fraudulent or dishonest assistance in a breach of trust in connection with the loan agreements.
iv) In paragraphs 4 and 5 of the Writ Infinitum also claimed the following relief:
"4. Further and/or Alternative declaratory judgment of the Honorable [sic] Court that the terms of the Loan Agreements in relation to the amount of the interest rate and the repayment margin foreseen are abusive and/or punitive and/or constitute penalty clauses and are therefore invalid.
5. Declaratory judgment against Defendants 1 and 2 in favour of Defendants 3 that the Loan Agreements are invalid."
v) In paragraph 6 Infinitum also claimed a declaration that the Loan Agreements had been modified by written or oral agreement and in paragraph 7 it claimed a declaration that Awendale had acted in breach of that agreement.
"24. In any case, based on Order 6(1)(e) of the Civil Procedure Rules, on when the service out of the jurisdiction is permitted provided always that a good arguable case is demonstrated, it is for the action to be raised to impose or rescind or dissolve or in any way affect a contract or rectify damage or other relief for or in relation to a breach of contract made in Cyprus. In the present case, the illegal and irregular loan agreements were signed in Cyprus.
25. At this stage, I would also note that, according to the five loan agreements, it is provided that the courts of England and Wales are competent over disputes arising under those agreements but do not have exclusive jurisdiction; As a result such dispute may also be settled in the courts of Cyprus, even if the law to be applied is English. Regarding this, I attach the 5 Loan Agreements as a set of Exhibits 9 and in particular I refer the Court to Term 10 of each loan agreement."
The Cypriot Winding Up Petition
"64. Therefore, and in accordance with all the above, it is clear that this is not a genuine liquidation, as the Applicants call it, debt, but a shareholders' dispute. It should also be noted that there is no Shareholders' Agreement between the shareholders of the Company (and the other companies involved in the development of the 3 projects in general), governing their relations.
65. Alexander Nikolaev himself, who for a long time had control over the Company and was and continues to be the ultimate beneficial owner of the Applicants, has created the Company's alleged debts and the moment he lost complete control of the Company by trying to exploit the same, he decided to pursue its dissolution to regain control of the 3 projects as the Company holds a key position in the group of companies behind these projects. He had followed the same tactic in the British Virgin Islands (BVI) which had failed. This paragraph summarizes the essence of this Application."
"What Pyxis contends to establish its defence in the present petition, namely that there is a genuine dispute with regards to the debt and therefore the Petitioner's claim is not liquidated, is raised and asked in the form of declaratory orders in the action which the Respondent characterizes as a derivative action. The Petitioner challenges whether that action is indeed a derivative action. It is not for the present Court, in the context of the winding up petition, to decide on the merits of the action. Neither the Court will decide whether the claimants are to be given the remedies they seek. This is a matter for the Court, before which the aforementioned action is pending. Otherwise, the substance of the claim would be decided in the context of a winding up, which I consider impermissible."
The English Claim
"If you do not file an application to dispute the jurisdiction of the court within 14 days of the date of filing this acknowledgment of service, it will be assumed that you accept the court's jurisdiction and judgment may be entered against you."
"11.….In preparing the witness statement Osborne Clarke consulted Infinitum's Cypriot lawyers about the steps taken in the derivative action, and specifically Mr Tsirides. In circumstances where there was not known to be any dispute about the fact that Pyxis had been served, nor indeed that such a dispute might be relevant (which is any event denied, since Awendale has submitted to the Cypriot jurisdiction), it did not appear necessary to exhibit any document evidencing the fact that Pyxis had been served. The affidavit of service of Awendale was also not exhibited to that witness statement. When we realised that Awendale disputed service, we sought and obtained the affidavit of service.
12. As to the earlier absence of the affidavit from the court file, we understand from Mr Tsirides that is it not the practice in the District of Limassol for the affidavit of service to be placed on the court file by the bailiff after service. It is usually given by the bailiff to the lawyers, who will file it in Court only if they need to prove service as part of some application. We trust that this resolves the question."
i) The same cause of action: Are the English Claim and the Cypriot Derivative Claim "proceedings involving the same cause of action"?
ii) The same parties: If so, are the English Claim and the Cypriot Derivative Claim "between the same parties"?
iii) Seisin: If so, was the Cypriot court first seised?
iv) The scope of Article 29: If so, is Article 29 nevertheless inapplicable because of the jurisdiction clause in each Loan Agreement?
v) The time of application: Is the operation of Article 29 excluded because the stay application was not filed earlier and in accordance with CPR Part 11.
vi) Reference to the CJEU: If Pyxis succeeds on the first four issues but fails on the fifth issue, should the Court consider referring a question to the CJEU?
"1. Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
2. In cases referred to in paragraph 1, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised in accordance with Article 32.
3. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court."
"1. Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court.
2. Without prejudice to Article 26, where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement.
3. Where the court designated in the agreement has established jurisdiction in accordance with the agreement, any court of another Member State shall decline jurisdiction in favour of that court."
"Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 24."
1. For the purposes of this Section, a court shall be deemed to be seised: (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the claimant has not subsequently failed to take the steps he was required to take to have service effected on the defendant;…"
i) The same cause of action
28. The principles of EU law which are relevant to the determination of this question are in my opinion clear. They have been considered in a number of cases in the CJEU and are essentially as submitted on behalf of the CMI. They may be summarised in this way.
i) The phrase "same cause of action" in Article 27 has an independent and autonomous meaning as a matter of European law; it is therefore not to be interpreted according to the criteria of national law: see Gubisch at para 11.
ii) In order for proceedings to involve the same cause of action they must have "le même objet et la même cause". This expression derives from the French version of the text. It is not reflected expressly in the English or German texts but the CJEU has held that it applies generally: see Gubisch at para 14, The Tatry at para 38 and Underwriting Members of Lloyd's Syndicate 980 v Sinco SA  Lloyd's Rep IR 365 , per Beatson J at para 24.
iii) Identity of cause means that the proceedings in each jurisdiction must have the same facts and rules of law relied upon as the basis for the action: see The Tatry at para 39….
iv) Identity of objet means that the proceedings in each jurisdiction must have the same end in view: see The Tatry at para 41, Gantner Electronic GmbH v Basch Exploitatie Maatschappij BV (Case C-111/01)  ECR I-4207 at para 25, Primacom at para 42 and Sinco at para 24.
v) The assessment of identity of cause and identity of object is to be made by reference only to the claims in each action and not to the defences to those claims: see Gantner at paras 24-32,….See also to similar effect Kolden Holdings Ltd v Rodette Commerce Ltd  1 Lloyd's Rep 434 , per Lawrence Collins LJ at para 93 and Research in Motion UK Ltd v Visto Corporation  2 All ER (Comm) 560 , per Mummery LJ at para 36.
vi) It follows that Article 27 is not engaged merely by virtue of the fact that common issues might arise in both sets of proceedings. I would accept the submission on behalf of the CMI that this is an important point of distinction between Articles 27 and 28. Under Article 28 it is actions rather than claims that are compared in order to determine whether they are related……
29. How do these principles provide an answer to the question whether the 2006 proceedings involve the same cause or causes of action as the Greek proceedings? It is necessary to consider the claims advanced by the CMI and the LMI separately and, in the case of each cause of action relied upon, to consider whether the same cause of action is being relied upon in the Greek proceedings. In doing so, the defences advanced in each action must be disregarded.
30. The essential question is whether the claims in England and Greece are mirror images of one another, and thus legally irreconcilable, as in Gubish and The Tatry , in which case Article 27 applies, or whether they are not incompatible, as in Gantner, in which case it does not. Thus in Gantner a claim for damages for repudiation of a contract and a claim for the price of goods delivered before the repudiation could both have succeeded and the fact that a set-off of the damages would make the price less beneficial to the seller did not make them incompatible. And in Maersk Olie & Gas A/S v Firma M de Haan en W De Boer (Case C-39/02)  ECR I-9657 owners of a vessel which damaged a pipeline (owned by Maersk) sought a declaration that they were entitled to limit their liability under the 1957 International Convention relating to the Limitation of Liability of Owners of Sea-going Ships and the Dutch legislation that gave effect to it and that a limitation fund be established. Maersk subsequently commenced proceedings in Denmark claiming compensation for damage to the pipeline. The CJEU held that the causes of action were not the same: see paras 35 to 39."
" In particular, in a case such as this, involving the international sale of tangible moveable property, it is apparent that the action to enforce the contract is aimed at giving effect to it, and that the action for its rescission or discharge is aimed precisely at depriving it of any effect. The question whether the contract is binding therefore lies at the heart of the two actions. If it is the action for rescission or discharge of the contract that is brought subsequently, it may even be regarded as simply a defence against the first action, brought in the form of independent proceedings before a court in another Contracting State.  In those procedural circumstances it must be held that the two actions have the same subject-matter, for that concept cannot be restricted so as to mean two claims which are entirely identical."
i) In the English Claim Awendale seeks to recover the principal due under the Loan Agreements together with interest at the contractual rate and default interest either in debt or as damages for breach of contract. The Particulars of Claim also anticipate the defence that the default interest provision is penal and contains an alternative claim for the principal and contractual interest only.
ii) In the Cypriot Derivative Claim Infinitum claims declarations that the Loan Agreements were void or invalid or that the sums payable under them have not fallen due because they have been varied by the Term Sheet 2 agreement. Infinitum also claims that the default interest provision is a penalty and unenforceable. As in Gubisch, the question whether the Loan Agreements (and the default interest provision) are binding lies at the heart of the two actions.
iii) Although a separate claim has been made against Mr Andreou, Infinitum's end in view, so far as Awendale is concerned, is to prevent enforcement of the Loan Agreements and Awendale's end in view is to enforce them. I bear in mind that Infinitum's claims in Cyprus only fall within Article 29 to the extent that they involve proceedings between Awendale and Pyxis: see The Tatry (above) at  (which I set out below). It follows that the claims made against Mr Andreou are not relevant to the question whether Awendale's cause of action against Pyxis in the English Claim is the mirror image of Infinitum's cause of action against Awendale in the Cypriot Derivative Claim.
iv) Finally, Mr Dracos reminded me that I am required to consider the substance of the claims not their form. For example, in The Tatry a ship owner had brought a claim for a declaration that it was not liable to the cargo owners in the Netherlands and the cargo owner brought in rem proceedings to arrest the ship in England. It was held that they involved the same cause of action and the form of action was irrelevant: see  and . In my judgment it is not material that Infinitum has claimed to set aside the Loan Agreements on a number of different grounds or sought a number of different declarations. In substance, Infinitum's claim is that the Loan Agreements are not enforceable (or the debts are not due).
ii) The same parties
"It is true that, in Gubisch, the court held that the concept of "the same subject matter," which, in effect, it interpreted into the English text by reference to the other language versions, could not "be restricted so as to mean two claims which are entirely identical:" para. 17. In practice, it applied that reasoning to the two actions, one of which was brought to enforce, and the other to rescind or discharge, the same contract. In doing so, it attached great importance to the purpose expressed, inter alia, in article 27(3) of the Convention of avoiding irreconcilable judgments between the same parties and how such judgments could arise if the competing claims had to be "entirely identical" before a lis alibi pendens plea could be upheld. That reasoning is not, however, equally applicable to the concept of "the same parties," since the judgment proceeds on the assumption that, whatever differences exist in the subject matter, the parties are the same. Nothing in the judgment, in the text of article 21 or in the purpose of the Convention requires that a flexible approach be adopted in that instance. The contrary is rather the case. Judgments are, in my view, truly irreconcilable only if they are contrary and given in actions between the same parties."
"86. How are these principles to be applied to the present case? If there has been an effective legal assignment of the rights of the original claimants under the Assignment, then (section 136(1) of the Law of Property Act 1925) the assignment is effective to transfer (from the date of notice to the "debtor"), the legal right in the thing in action transferred, all legal and other remedies for the thing in action and also "… the power to give a good discharge for the same without the concurrence of the assignor." As the judge said (para 69 of the judgment), the effect of this is that the assignee becomes the owner of the thing in action. He can sue the debtor in his own name without joining the assignor: In re Westerton: Public Trustee v Gray  2 Ch 104. The assignor has no further interest in the right in action: see Compania Colombiana de Seguros v Pacific Steam Navigation Co  1 QB 101 , 121.
87. First, as I have said, the parties must be "identical" (The Tatry, para 33; Drouot, para 18), but this does not mean that two separate legal entities cannot be "identical" for this purpose, as is shown by the rulings in those cases.
88. Second, a decision against one must be res judicata as against the other. In English law res judicata estoppels operate for or against not only the parties, but those who are privy to them in interest, and privies include any person who is identified in estate or interest, and accordingly "assignees will be bound as privies of the assignor" (Spencer Bower, Turner and Handley, Res Judicata , 3rd ed. 1996, 230–231, citing Effem Foods Pty Ltd v Trawl Industries Pty Ltd (1993) 43 FCR 510 , 540–2)…..
89. I am satisfied that there is the requisite privity of interest which would preclude an assignor from re-litigating any finding on liability under the contracts in a proceeding to which the assignee had been a party.
90. Third, their interests must be "identical" and "indissociable." The word "indissociable" is very rarely used in English legal parlance except where it has been used to translate the same French word in judgments of the European Court of Justice and the European Court of Human Rights, and acts of the European institutions. The point frequently arises in the context of VAT in determining whether the supply of goods and services is one service, or two: see, e.g. Case 353/85 Commission v United Kingdom  STC 25; Doctor Beynon and Partners v Customs and Excise Commissioners  UKHL 53,  STC 55. The European Court of Human Rights has emphasised that some of the rights are indissociable from "a danger of arbitrary power" (Golder v United Kingdom (1975) 1EHRR 524, para 35) or indissociable "from a democratic society" (Kokkinakis v Greece (1993) 17 EHRR 397 , para 31: see also New Testament Church of God v Stewart  EWCA Civ 1004, paras 38–39). So also Council Regulation (Dublin II) provides in Article 4(iii) that the situation of a minor who is accompanying the asylum seeker and meets the definition of a family member is to be "indissociable" from that of his parent or guardian: see AA (Somalia) v Secretary of State for the Home Department  EWCA Civ 1540.
91. In my judgment the interests are identical, because in relation to each of the SPAs there is only one right, and there are successive owners of that one right. It follows that the interests of assignor and assignee are indissociable in the sense of indivisible. It does not matter that an assignment only passes the benefit and not the burden of a contract, nor that the assignor remains primarily liable to the obligor for the non-performance of its outstanding contractual obligations. The interest of the assignor and assignee in relation to the claim being advanced against the appellants is identical. There is also force in the point made by Kolden that the question of outstanding contractual obligations is irrelevant on the facts, as the SPAs are executed so far as the original claimants are concerned; they have no further obligations under the SPAs. It is the appellants who continue to have an obligation under the SPAs, viz. to transfer the Maltsovsky shares immediately onwards to JV (or to pay damages for breach of that obligation)."
"19. A derivative action under Cyprus Law is a procedural device, under the Foss v Harbottle rule, whereby an action may be brought by the aggrieved minority shareholders for a wrong allegedly done to the company where they are shareholders. The alleged wrongdoers are made the defendants in the action and the company is joined as a nominal defendant so that the company can be bound by the judgment and recover any damages awarded by the Cyprus Courts.
20. Although any remedy recovered goes to the company, the company is not named as a plaintiff."
"The company must be made a defendant to the action. As already pointed out, the company is the true plaintiff, and if a money judgment is recovered against the true defendants – the wrongdoing directors or other controllers – this will be in favour of the company and not in favour of the individual shareholder who is nominal plaintiff. The company cannot, in fact, be the plaintiff, because neither of its organs – the board of directors and the general meeting – will authorise suit by it. As the next best thing the court insists upon its being made the nominal defendant."
i) Although it is quite possible that Mr Haviaras's view of the law is correct, I consider it well arguable that the Supreme Court of Cyprus will adopt the view expressed by Mr Panteli and hold that the beneficial owner of shares in a company has standing to commence a derivative claim.
ii) Mr Haviaras gave a number of good reasons why the Court might strike out the Cypriot Derivative Claim. In particular, Pyxis provided no real explanation why it could not have brought proceedings in Cyprus itself (other than that Ms Papaioakeim was unwilling to get involved in litigation). Nevertheless, as Mr Dracos submitted, the Cypriot Derivative Claim is still pending in the District Court of Limassol and no application has yet been made to strike it out. Indeed, he went as far as to offer an undertaking to apply to lift any stay if such a strike out application was successful.
iii) But in any event, Mr Dracos submitted (and I accept) that the Cypriot Court has already had to consider whether Infinitum has a good arguable case in the Cypriot Derivative Claim in order to permit service out of the jurisdiction on Awendale. It has also had to decide whether there was a genuine dispute that the debt to Awendale was due. Indeed, on the hearing of the Cypriot Winding Up Petition, Awendale challenged "whether that action [i.e. the Cypriot Derivative Claim] was indeed a derivative action".
"ix. If both affiants say the truth then I can only conclude that the claimant in the Cyprus Action failed to file the evidence of service on Pyxis and I can say that what matters are the contents of the Court file and nothing else.
x. If the fact that Pyxis service documents were not in the court's file was brought to the attention of the Cyprus judge the order to serve on Awendale abroad would never have been issued. This is because the phrase "against some other person" in Order 6(1)(h) of the Cyprus procedure Rules (see paragraph 41(ii) above) should not be understood to mean that it suffices to serve just any one of the defendants who are Cypriot residents. The requirement should be understood that all Cypriot residents must be first served before the claimant being eligible to apply for leave to serve abroad."
iv) The scope of Article 29
"(1) A defendant who wishes to— (a) dispute the court's jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction, may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.
(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.
(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court's jurisdiction.
(4) An application under this rule must— (a) be made within 14 days after filing an acknowledgment of service; and (b) be supported by evidence.
(5) If the defendant— (a) files an acknowledgment of service; and (b) does not make such an application within the period specified in paragraph (4), he is to be treated as having accepted that the court has jurisdiction to try the claim."
"The claims in the Greek proceedings fall outside the jurisdiction clause in the policy and the jurisdiction clause in the settlement agreement. It is respectfully denied therefore that the High Court of Justice of England and Wales has jurisdiction to determine the claims in the Greek proceedings."
"19. The insurers sought to enforce the settlement agreements referred to in the Tomlin orders and, in a judgment handed down on 19 December 2011, having refused a stay under article 28, the judge held that they were entitled to summary judgment for (inter alia) a declaration that the matters sought to be raised in Greece were part of the settlement of the claim and that Starlight (and OME) are bound to indemnify the insurers against any costs incurred and any sums that may be adjudged against them in the Greek proceedings.
20. As stated above, the Court of Appeal held that it was bound to stay the 2006 proceedings and 2011 Folio 702 and 1043 under article 27, made no final determination of the position under article 28 and declined to consider the issues of summary judgment. The Court of Appeal also held that it was not too late for the owners to rely on article 27 or article 28."
"121. In my judgment, there is no sensible basis on which it can be said that the time limit under CPR r 11(4), which can in an appropriate case be extended under CPR r 3.1(2)(a), is contrary to EU law. The time limit satisfies the principle of equivalence because it is the same rule that applies in all cases. It fulfils a legitimate aim, namely making sure that points going to whether the proceedings are to be tried on their substantive merits in England are taken promptly and without unnecessary costs. It satisfies the principle of legal certainty because parties need to know where they stand. The absence of a time limit would allow a litigant to take the point years afterwards. Moreover, the time limit does not render the right to apply for a stay under article 27 (or article 28) impossible or excessively difficult to exercise. It allows sufficient time for the point to be raised, especially given the express rule permitting an extension of time in appropriate cases.
122. As to the expression "of its own motion" in article 27, there are a number of different parts of the Regulation that have a similar provision. On the facts here the potential for a stay under article 27 was before the courts on at least two occasions. The position was explained to Judge Mackie QC on the without notice application referred to above. There is no reason to think that he did not give consideration to the position. More importantly perhaps the position was explained to the judge in the skeleton arguments to which I have referred. He was given both reasons and authority on the question whether a stay should be granted under article 27. It seems to me that the judge was entitled to accept those submissions, which were made on the owners' behalf by experienced counsel and solicitors.
123. For these reasons I would hold that the Court of Appeal should have refused to allow the owners to rely on article 27 in the Court of Appeal. That said, I would accept that the meaning and effect of the duty to consider article 27 of its own motion are matters of some potential importance and I have (somewhat reluctantly) reached the conclusion that they are not acte clair. I would therefore refer an appropriate question to the Court of Justice of the European Union if it were necessary in order to resolve the appeal. If the insurers abandon the claims to the declarations referred to in paras 58 and 59 above, such a reference will not be necessary because, for the reasons given above, I would allow the appeals under article 27 in their entirety."
i) First, Lord Clarke accepted that it was not clear whether Article 29 imposes a duty on the English Court to stay proceedings regardless of the procedural history of the case.
ii) Secondly, Lord Clarke expressed the view that the correct answer is that the procedural history of the case may be such as to permit an English Court to consider that the point was settled and to refuse to allow a party to reopen it. Lord Clarke expressed the view that the facts of The Alexandros T were such an instance, but he accepted that it was not acte clair.
iii) Thirdly, it was not necessary to resolve the point because Article 29 did not apply.
"As there may be several concurrent international jurisdictions, and the courts of different States may properly be seised of a matter (see in particular Articles 2 and 5), it appeared to be necessary to regulate the question of lis pendens. By virtue of Article 21, the courts of a Contracting State must decline jurisdiction, if necessary of their own motion, where proceedings involving the same cause of action between the same parties are already pending in a court of another State. In cases of lis pendens the court is therefore obliged to decline jurisdiction, either on the application of one of the parties, or of its own motion, since this will facilitate the proper administration of justice within the Community. A court will not always have to examine of its own motion, whether the same proceedings are pending in the courts of another country, but only when the circumstances are such as to lead the court to believe that this may be the case."
"It is true, as F&M points out, that the Supreme Court did not regard this conclusion as acte clair (see ) and that it would (if necessary) have referred an appropriate question to the Court of Justice of the European Union. However, the fact that the issue can ultimately be resolved authoritatively only by the CJEU does not mean that the decision in The Alexandros T is not binding in the meantime. It is plainly binding on this court, and I take the rule to be, therefore, that notwithstanding the mandatory language of Article 27, CPR Pt 11(4) and (5) may apply so as to bar a challenge which is late under the rules, and deem the applicant to have submitted to the jurisdiction."
i) Mr Dracos relies heavily on Lord Clarke's analysis at  to  and his application of the law to the facts at . Those paragraphs must be understood in the context of the "startling facts" of the case and that there had been a considered decision not to take the Article 27 point.
ii) The submission made on behalf of Starlight was the same submission as Mr Dracos makes in this case and Lord Clarke recorded it in  (my emphasis): "However, it is said that on the true construction of art 27, the court, including on these facts has a duty to consider the application of its own motion whenever the point is taken."
iii) Lord Clarke rejected this submission. In doing so, he rejected the subsidiary argument that CPR Part 11 was inconsistent with Article 29 which should override it: see  to . He also emphasised that the finality of judgments is just as much a principle of European law: see .
iv) Lord Clarke's conclusion was that the time limit in CPR Part 11(4) was not contrary to EU law: see . As Mr Dracos accepts, he also stated that CPR Part 11 applied to applications under Article 29: see . I must therefore apply it.
v) I do not accept that Lord Clarke intended to introduce a distinction between cases in which the point is settled because there is some issue estoppel or abuse of process and those cases in which it remains open. This would be to introduce yet a further test and a further level or complexity.
v) The time of application
"As a matter of law, however, I reject S.E.T.'s submission that the sole route available to a defendant in the position of F&M is an application for relief against sanctions under CPR Pt 3.9 . This question is covered by authority. In The Alexandros T at  cited above, the Supreme Court stated expressly that the time limit under CPR 11(4) "can in an appropriate case be extended under CPR 3.1(2)(a) ". Such an extension is made pursuant to the court's general powers of management, and an order extending time may be granted retrospectively (White Book 3.1.2)."
"Furthermore, it is relevant that the CPR in this context is concerned with civil procedure not in the purely domestic context, but with the relationship between proceedings carried on at the same time in different member states of the EU. The mutual recognition of judgments under the Judgments Regulation includes rules as to lis pendens and related actions intended (among other things) to preclude inconsistent judgments. Though the CPR Pt 11(4) time limit is not objectionable under EU law (see The Alexandros T, ibid, at ), the context may (in my view) operate as a factor when considering whether to extend time. This is because a case might be heard in England which might otherwise not have been had the jurisdiction application been on time. This was the approach adopted by Beatson J in Polymer Vision R & D Limited v Van Dooren  EWHC 2951 (Comm) at  based on Texan Management Ltd v Pacific Electric Wire & Cable Company Ltd  UKPC 46 , and I would follow the same approach."
i) I accept that Pyxis offered no explanation for its failure to issue an application under CPR Part 11(4) before 3 September 2019 and until 25 November 2019. On the other hand, Awendale did not suggest that it had suffered any prejudice or detriment as a consequence of Pyxis's failure to challenge jurisdiction between 3 September 2019 and 1 November 2019 (when Pyxis served its Defence) and 25 November 2019 (when it issued its Application Notice).
ii) I accept that each Loan Agreement contained a jurisdiction clause in favour of the courts of England and Wales and, in the normal course, I would have given effect to them and refused an extension of time. On the other hand, Awendale offered no explanation for its failure to apply to the Cypriot Court to set aside the order for permission to serve out of the jurisdiction under Article 25 or for a stay under Article 31(2). It was Awendale's decision to waive its right to rely on the exclusive jurisdiction of the English Court and to submit to the jurisdiction which gave the Cypriot Court jurisdiction under Article 26.
iii) I accept that Pyxis has taken no steps to progress the Cypriot Derivative Action since Awendale was joined as a party. Indeed, it has not even served the Statement of Claim. On the other hand Awendale has taken no steps to apply to strike out the Cypriot Derivative Claim either on the basis that Infinitum has no standing to bring it or on the basis of its persistent delay. Mr Panteli's unchallenged evidence was that Awendale could apply to strike it out for want of prosecution and in that event the Cypriot Court will usually give the plaintiff one more opportunity to file a Statement of Claim.
iv) In any event, Awendale does not allege that it has suffered any particular prejudice or detriment as a result of the delay in prosecuting the Cypriot Derivative Claim and I propose to address this point further (below) in the terms on which I am prepared to grant a stay.
vi) Reference to the CJEU