Reference To CJEU As To Whether EU-Domiciled Defendant Has Right To Be Sued In Its State Of Domicile And To Restrain Non-EU Proceedings By Anti-Suit Injunction

The Court of Appeal has made a reference to the CJEU, asking for a preliminary ruling as to whether a defendant domiciled in an EU member state has the right, under the recast Brussels Regulation, to be sued in that state and to obtain an anti-suit injunction restraining proceedings in a non-EU jurisdiction. It further asks whether the availability of the injunction extends to a situation where the cause of action in the non-EU court isn't available in the state of domicile: Gray v Hurley [2019] EWCA Civ 2222.

Previous Court of Appeal decisions have held that an employee has the right to be sued in their EU domicile and to restrain proceedings in a non-EU court. The court in this case considered, however, that those decisions were restricted to employees. Applying the same reasoning in all domicile cases would lead to extreme results and injunctions would be granted in circumstances where, if the Regulation did not apply, an English court would be unlikely to grant an injunction. It concluded, however, that the position was not sufficiently clear (acte clair) and therefore a reference should be made to the CJEU.

It is unlikely that the CJEU will give judgment before the end of 2020, when the transition period following Brexit is due to come to an end (assuming no extension). It is not clear what will then happen to this and other pending references to the CJEU from the English courts.

Although the question arose in this case in the context of an attempt to restrain non-EU proceedings against an English-domiciled defendant, the question will have obvious implications for proceedings brought in the UK courts against EU-domiciled defendants post-Brexit - in particular if the CJEU decides that the Regulation does confer a right on EU-domiciled defendants to be sued in their home courts, rather than a non-EU court as the English court will be post-Brexit.

Background

Following the breakdown in the relationship between the English-domiciled claimant, Ms Gray, and the defendant, Mr Hurley, Ms Gray asserted ownership in certain assets held in Mr Hurley's name and joint names. In response, Mr Hurley began proceedings in New Zealand seeking an order under a New Zealand statute which applies to the division of assets of co-habiting couples following the end of a relationship. Ms Gray then began English proceedings seeking declarations and restitution in respect of the contested assets, and sought an anti-suit injunction restraining Mr Hurley from...