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TWIG Art's success in jurisdiction challenge

Fladgate has acted for the modern art advisory consultancy, TWIG Art, in a successful application challenging the jurisdiction of the English court to hear claims alleging negligence and fraud. The judgment is an important decision on jurisdictional issues post-Brexit. The core Fladgate team of partner Tom Bolam, associate Yasmin Daswani and trainee solicitor Patrick Buck advised Twig Art.

TWIG Art advises art collectors, most of whom are Belgian nationals, on art investments. On 10 May 2021, Dr Veronique Simon, founder of the ‘Simon Thérapie’ dermatology practice and skincare brand, brought proceedings in the English High Court against TWIG and its co-founders alleging they had given negligent advice in relation to the purchase of artworks by a number of leading contemporary artists, including George Condo and Franz West. Dr Simon also alleged that TWIG had made secret profits on the sale of artworks.

In response to Dr Simon’s claim, TWIG art, represented by Fladgate partner Tom Bolam and associate Yasmin Daswani, brought an application to challenge the jurisdiction of the English High Court.

TWIG Art argued that the courts of England and Wales were not the appropriate forum in which to hear Dr Simon’s claims because the claims were more closely linked to Belgium and Dr Simon was guilty of ‘forum shopping’, i.e. had brought proceedings in London for tactical reasons. TWIG also argued that, notwithstanding the United Kingdom’s withdrawal from the European Union, the Recast Brussels Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters was of continuing application in certain circumstances. TWIG Art argued that the existence of related proceedings in the Belgian courts commenced prior to the expiry of the UK’s EU transition period, in which TWIG Art’s founders had alleged Dr Simon was guilty of harassment and defamation, meant that the English court should stay Dr Simon’s claim pending the final determination of all claims in Belgium.

His Honour Judge Cawson QC found that the English court had no jurisdiction to hear Dr Simon’s claim. The judgment expressed scepticism about Dr Simon’s evidence on whether she was resident in England at the time she entered into a contractual relationship with TWIG Art. Dr Simon had claimed that her primary residence at the time of the contract was the offices of her dermatology clinic in Belgravia, which would have constituted a breach of her commercial tenancy. The Judge held that Belgium, and not England, was the most appropriate forum in which to hear the dispute.

The judgment also made a number of important findings on matters that are likely to arise frequently in jurisdiction challenges post-BREXIT, in particular:

  • Pursuant to Article 67 of the UK/EU Withdrawal Agreement, the Recast Brussels Regulations continue to have effect where proceedings had been commenced in a Member State prior to the expiry of the Transition Period.
  • In considering whether two sets of proceedings, one in an EU Member State and one in England, involve the same cause of action or are related actions under Articles 29 and 30 of the Recast Brussels Regulations, it is not the correct approach to look at the position as at 31 December 2020 (i.e. the final day of the Transition Period). The Court held that if proceedings have been commenced prior to 31 December 2020 but are subsequently amended after that date, the fact that it was only post-Transition Period amendments that resulted in the foreign proceedings becoming related to a later English claim does not matter. So long as the foreign proceedings were commenced prior to 31 December 2020, when a related claim comes before the English court the question to consider is whether the claims are related at the date the English court is seised of the claim and not if those English proceedings were related to the foreign claim in the form it took as at 31 December 2020.
  • HHJ Cawson QC rejected Dr Simon’s argument that the English court is seised of a claim at the date an application is made to serve a claim outside the jurisdiction. After obtaining permission to serve outside the jurisdiction, Dr Simon delayed issuing her claim. Prior to issuing a claim form in England, TWIG Art amended its claim in the Belgian courts in a way that meant the prospective English proceedings and the Belgian proceedings involved the same cause of action. The judgment held that the English court was seised of Dr Simon’s claim on the date on which she issued her claim form and not the earlier date on which she applied for, or obtained, permission to serve her claim in Belgium.

Dr Simon was ordered to pay TWIG Art’s costs of the proceedings.

The judgment is an important decision on jurisdictional issues post-Brexit. The analysis in the judgment on the continued application of the Recast Brussels Regulation will be important to practitioners acting for clients contemplating issuing proceedings in England where there are related proceedings ongoing in a EU member state.

 TWIG Art’s counsel was James Ruddell of One Essex Court.

Click here to read the full judgement; find out more about Fladgate's art expertise.

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