HHJ CAWSON QC
Approved Judgment
LM-2021-000059
Simon v Taché and others
105. I consider it important to consider with some care how matters developed procedurally
in respect of the Belgian Proceedings. By the 10 March Submissions, Dr Simon made
allegations, in particular in relation to the Franz West Sculpture and the George Condo
Work, to the effect that the Defendants had acted in breach of their contractual
obligations that, so far as these allegations are concerned, substantially replicate the
allegations made in support of the claims that she seeks to bring by the English
Proceedings, albeit in the Belgian Proceedings deployed by way of defence. This step
could, itself, have no bearing upon the application Article 29 because the latter is
concerned with claims and not defences.
106. In reply, by the 3 May Submissions, the Defendants responded to the allegations that
Dr Simon had made in the 10 March Submissions, but went further and specifically
added to their existing prayer in respect of the relief that they sought in the Belgian
Proceedings, a request that the Court should rule: “that Ms Simon does not prove any
fault on the part of the claimants”, i.e. the Defendants were, as I see it, specifically
asking the Belgian court to adjudicate on whether Dr Simon could or could not show
that they were at fault, at least unless Dr Simon chose no longer to run her line of
defence.
107. Thus, as I see it, the Defendants were, in the relief that they sought, seeking from the
Belgian court a determination as to whether Dr Simon could prove or establish any
liability on the part of the Defendants in respect of the matters that Dr Simon had alleged
in the Belgian Proceedings, but has also raised in the English Proceedings.
108. I accept Mr Ruddell’s submission, supported by Prof. JFvD, that a broad approach
should be adopted to the application of Article 29, and that it is incumbent upon the
Court to look at the substance of the claim, i.e. the additional relief introduced by the 3
May Submissions, and I accept that if one does in the present circumstances, there is
no substantive difference between asking the Court to rule that Dr Simon had not proved
any wrongdoing, and seeking a declaration that there was no wrongdoing. I accept that,
for the purposes of Article 29, a declaration that there was no liability is, in substance,
the same thing as a determination by the Belgian court that no liability has been proved
by the parties bearing the burden to establish that liability.
109. I consider that the point can be tested by considering how matters are likely to have
been dealt with in the Belgian court at first instance had it been prepared to deal with
the Defendants’ claim added by way of amendment rather than deferring to this Court
in the way that it did, and had it grappled with Article 29 in the way that the Defendants,
by their Belgian appeal, contend that it should have done, and which by their appeal,
the Defendants argue that the Belgium courts should now do. Even if the Defendants’
claim had remained in its form as at 3 May 2021 as set out in the 3 May Submissions,
rather than as further developed by the 5 August Submissions, the Belgian court would,
as I see it, still have had to have considered, on the evidence, whether Dr Simon’s
allegations that the Defendants were in breach of their contractual obligations etc. were
made out so as to provide her with a defence, and to rule, as sought by the relief claimed
by the Defendants, as to whether Dr Simon could prove fault on the Defendants’ part.
These are the very issues that the English court is being asked to determine in the
English proceedings.