[2] In Athena Capital Fund v Secretariat of State of the Holy Sea [2022] 1 WLR 4570, Males LJ went through some authorities, under the heading 'Case management stays', from paragraph 48 to 59:

'The court has power to stay proceedings “where it thinks fit to do so”. This is part of its inherent jurisdiction, recognised by section 49(3) of the Senior Courts Act 1981. The statute imposes no other express requirement which must be satisfied. This is a wide discretion. The test is simply what is required by the interests of justice in the particular case.

Such a stay may be permanent or temporary and may be imposed in a very wide variety of circumstances. Obvious examples include that proceedings may be stayed in order to await the decision of an appellate court in another case; or until a party complies with an order to provide security for costs; or to enable mediation to take place. Cases which speak of “rare and compelling circumstances” (or similar phrases) being necessary have nothing to do with these kinds of commonplace example. They have generally been concerned with stays which have been imposed in order to allow actions in other jurisdictions to proceed, the usual assumption being that the outcome of the foreign proceedings will or may render the proceedings here unnecessary.

That was the position in Reichhold Norway ASA v Goldman Sachs International [2000] 1 WLR 173. The claimant had two possible claims by which to obtain compensation for loss allegedly suffered as a result of purchasing a business. The first was a relatively straightforward claim against the seller of the business, which was subject to arbitration in Norway. The second was a much more complex but overlapping claim against the defendant for negligent mis-statement. Moore-Bick J decided to stay the English proceedings against the defendant pending the final determination of the Norwegian arbitration. He did so on case management grounds, in particular because the claimant had a straightforward remedy in the arbitration which, if its claim was good, would enable it to recover in full for the loss which it had suffered and which would be achieved more quickly and cheaply.

This court upheld Moore-Bick J's exercise of discretion. Despite dicta in Abraham v Thompson [1997] 4 All ER 362, a claimant does not have an unfettered right to pursue a claim to judgment, subject only to considerations of abuse of process, on a timetable of its own choosing; rather, the court has power to control its own business and there may be circumstances in which it is in the interests of justice for the pursuit of a claim to be deferred until something else has happened. Lord Bingham of Cornhill CJ (with whom Otton and Robert Walker LJJ agreed) recognised that the court would need to bear in mind article 6 ECHR. Referring to the risk that granting a stay would open the door to a flood of similar applications, he observed at p 186 that:

“It will very soon become clear that stays are only granted in cases of this kind in rare and compelling circumstances. Should the upholding of the judge's order lead to the making of unmeritorious applications, then I am confident the judges will know how to react.”

However, the test which Moore-Bick J had actually applied, and which this court held to be correct, was not whether there were rare and compelling circumstances, but whether a stay was in the interests of justice (see p 179B–C):

“The court's power to stay proceedings is part of its inherent jurisdiction which is expressly preserved by section 49(3) of the [Senior Courts] Act 1981. It is exercised under a wide range of circumstances to achieve a wide variety of ends. Subject only to statutory restrictions, the jurisdiction to stay proceedings is unfettered and depends only on the exercise of the court's discretion in the interests of justice. I am in no doubt, therefore, that I do have jurisdiction to stay the present proceedings; the question is whether it would ever be right to do so in a case such as the present, and if so under what circumstances.”

The expression “rare and compelling circumstances” has been taken up in later cases and sometimes treated as if it were in itself the applicable test in such cases: e g Konkola Copper Mines plc v Coromin [2006] 1 All ER (Comm) 437, para 63, a reinsurance claim where a stay of Part 20 proceedings was refused: it would have been unfair to leave the defendant insurer unable to seek to pass on the claim being made against it in the English proceedings until after the conclusion of proceedings against other insurers in Zambia; and Amlin Corporate Member Ltd v Oriental Assurance Corpn (The Princess of the Stars) [2013] 1 All ER (Comm) 495, where a stay of a reinsurer's claim for a declaration of non-liability until after the conclusion of proceedings against the insurer in the Philippines was refused. As Flaux J explained in Standard Chartered Bank (Hong Kong) Ltd v Independent Power Tanzania Ltd [2016] 1 All ER 233, para 128, the question whether to grant a stay in such cases is concerned with the order in which decisions should be made.

Other cases have considered whether a stay should be granted in cases to which the Judgments Regulation (or its predecessors) applies. Considerations of forum conveniens are irrelevant to the allocation of jurisdiction under the Regulation. In cases where the English court has jurisdiction under the Regulation, it cannot be a sufficient ground to impose a stay that the dispute would be more conveniently decided in another Regulation jurisdiction. So to decide would circumvent the Regulation, as Lawrence Collins J explained in Mazur Media Ltd [2004] 1 WLR 2966. That would be so a fortiori in a case where the English court has jurisdiction under article 25 by virtue of an exclusive jurisdiction clause. In such a case it is a very weighty factor that a stay of English proceedings in favour of a foreign jurisdiction would be contrary to the terms of the Regulation and the parties’ agreement. As Lawrence Collins J put it:

“69. In fact the court has an inherent discretion, reinforced by the Supreme Court Act 1981, section 49(3), to stay proceedings, whenever it is necessary to prevent injustice. But the power cannot be used in a manner which is inconsistent with the Judgments Regulation. Section 49 of the Civil Jurisdiction and Judgments Act 1982 provides that nothing in that Act prevents the court from exercising its power to stay, where to do so is not inconsistent with the Brussels or Lugano Conventions. That section has not been amended to refer to the Judgments Regulation, because the Regulation is directly applicable without national legislation. Where the court has jurisdiction under the Judgments Regulation, the power of the court to stay proceedings cannot be used simply because another Regulation State is the forum conveniens: Dicey & Morris, The Conflict of Laws, 13th ed (2000), para 11-012.

“70. It follows that the power should not be used simply because the claim in the English proceedings could be made, or more appropriately made, in the German insolvency. I would accept that there is a power to stay English proceedings in favour of insolvency proceedings in a Regulation state to prevent injustice, but it would require exceptionally strong grounds for the English court to exercise that power, particularly where (as regards the contractual claim) the parties have conferred exclusive jurisdiction on the English court. Otherwise, the court would be circumventing the Judgments Regulation by introducing forum non conveniens principles by the back door.”

This reasoning has also been taken up in later cases. In MAD Atelier International BV v Manès [2020] QB 971 Bryan J summarised the position in these terms and his summary was adopted by Butcher J in Banca Intesa Sanpaolo SpA v Commune di Venezia [2020] EWHC 3150 (Comm):

“82. The court has a discretion to order a stay to await the outcome of foreign proceedings in the exercise of its case management powers pursuant to section 49(3) of the Senior Courts Act 1981 and/or CPR r 3.1(2)(f). The principles relevant to the exercise of this discretion can be summarised as follows:

“(1) The court has a discretion to stay an action pending the resolution of a claim pending in another forum, but a stay should only be granted in ‘rare and compelling circumstances’: Reichhold Norway ASA v Goldman Sachs International [2000] 1 WLR 173, 186.

“(2) ‘Exceptionally strong grounds’ are required to justify a stay on case management grounds where the parties have conferred exclusive jurisdiction on the English court: Mazur Media Ltd v Mazur Media GmbH [2004] 1 WLR 2966, paras 69–70 (Lawrence Collins J) ; Jefferies International Ltd v Landsbanki Islands HF [2009] EWHC 894 (Comm) at [26]. The danger of inconsistent judgments is not a legitimate consideration amounting to exceptional circumstances and does not justify a stay in a case where the court has jurisdiction under Parliament and Council Regulation (EU) No 1215/2012 (‘BIR’), especially exclusive jurisdiction: Mazur, para 71.

“(3) The court's power to stay proceedings cannot be used in a manner which is inconsistent with Council Regulation (EC) No 44/2001 (‘the Judgments Regulation’): Mazur, para, 69; Jefferies, para 26. A defendant should not be permitted ‘under the guise of case management, [to] achieve by the back door a result against which the ECJ has locked the front door’: Skype Technologies SA v Joltid Ltd [2011] IL Pr 8, para 22 (Lewison J).

“(4) A stay will not, at least in general, be appropriate if the other proceedings will not bind the parties to the action stayed or finally resolve all the issues in the case to be stayed, or the parties are not the same: Klöckner Holdings GmbH v Klöckner Beteiligungs GmbH [2005] EWHC 1453 (Comm) at [21] (Gloster J).”

The Supreme Court discussed briefly the court's power to order a stay where there are parallel proceedings in another jurisdiction in Unwired Planet International Ltd v Huawei Technologies (UK) Ltd [2020] Bus LR 2422:

“99. We therefore turn to case management. The English courts have wide case management powers, and they include the power to impose a temporary stay on proceedings where to do so would serve the Overriding Objective: see CPR rr 1.2(a) and 3.1(2)(f). For example a temporary stay is frequently imposed (and even more frequently ordered by consent) in order to give the parties breathing space to attempt to settle the proceedings or narrow the issues by mediation or some other form of alternative dispute resolution. A temporary stay may be ordered where there are parallel proceedings in another jurisdiction, raising similar or related issues between the same or related parties, where the earlier resolution of those issues in the foreign proceedings would better serve the interests of justice than by allowing the English proceedings to continue without a temporary stay: see Reichhold Norway ASA v Goldman Sachs International [2000] 1 WLR 173. But this would be justified only in rare or compelling circumstances: see per Lord Bingham CJ at pp 185–186, and Klöckner Holdings GmbH v Klöckner Beteiligungs GmbH [2005] EWHC 1453 (Comm).”

Finally, the expectation that it will only be in “rare and compelling circumstances” that such a stay will be granted was reiterated by this court in two very recent cases: see Município de Mariana v BHP Group (UK) Ltd (formerly BHP Group plc) [2022] EWCA Civ 951 at [373] and Nokia Technologies OY v Oneplus Technology (Shenzhen) Co Ltd [2022] EWCA Civ 947 at [67].

It is interesting to see how an observation by Lord Bingham CJ that there was no need to be concerned about a “floodgates” argument because in fact it would only be in rare cases, where there was a compelling reason to do so, that a stay of English proceedings would be granted in order to await the outcome of proceedings abroad has been elevated almost into a legal test that “rare and compelling circumstances” must exist before the apparently unfettered jurisdiction to grant such a stay can be exercised.

There is, as it seems to me, no reason to doubt that it is only in rare and compelling cases that it will be in the interests of justice to grant a stay on case management grounds in order to await the outcome of proceedings abroad. After all, the usual function of a court is to decide cases and not to decline to do so, and access to justice is a fundamental principle under both the common law and article 6 ECHR. The court will therefore need a powerful reason to depart from its usual course and such cases will by their nature be exceptional. In my judgment all of the guidance in the cases which I have cited is valuable and instructive, but the single test remains whether in the particular circumstances it is in the interests of justice for a case management stay to be granted. There is not a separate test in “parallel proceedings” cases. Rather, considerations such as the existence of an exclusive English jurisdiction clause and the danger of circumventing a statutory scheme for the allocation of jurisdiction (such as the Judgments Regulation) will be weighty and often decisive factors pointing to where the interests of justice lie.'