Lis pendens and related actions (litispendance et connexité)

Lis pendens is the situation in which the same dispute is pending before two courts that both have jurisdiction, and related actions are two separate cases so closely connected that it is in the interests of the proper administration of justice to hear and determine them together. Articles 100 and 101 of the French Code of Civil Procedure then allow the dispute to be brought before a single court. These mechanisms, which take the form of procedural objections, have a European counterpart in Articles 29 to 34 of the Brussels I bis Regulation.

The domestic regime

In the case of lis pendens, the court second seised must decline jurisdiction in favour of the other if one of the parties so requests, and may do so of its own motion. In the case of related actions, one of the courts may be asked to decline jurisdiction and refer the case as it stands to the other, which is a matter for the court’s discretion. The lis pendens objection is raised with the other objections, before any defence on the merits, whereas the related-actions objection may be raised at any stage of the proceedings, unless it is dismissed for having been raised late with dilatory intent. Where the courts are not of the same level, the objection may be raised only before the lower court.

The European regime and patents

Within the European area, the court second seised stays its proceedings of its own motion until the jurisdiction of the court first seised is established, and then declines jurisdiction. The Court of Justice of the European Union assesses whether the dispute is the same by reference to the parties, the subject matter and the cause of action, and holds that an action for a declaration of non-liability and an action for liability concerning the same facts have the same subject matter. This case law fuelled the practice of “torpedo” actions, by which an alleged infringer brings an action for a declaration of non-infringement before a court reputed to be slow. The priority given to the court designated by an exclusive jurisdiction clause and the rules on exclusive jurisdiction over validity limit their reach.

Interaction with the UPC

The European rules on lis pendens and related actions apply to relations between the Unified Patent Court and the courts of Member States that are not parties to the Agreement, and, during the transitional period, to parallel proceedings before the UPC and before a national court of a Contracting State. Where the claims are merely related, the court may prefer a stay of proceedings.

Key points

Lis pendens and related actions govern the race to be the first court seised. On receipt of a writ, check whether parallel proceedings exist concerning the same right or the same products, and raise the lis pendens objection before any defence on the merits. A right holder exposed to an action for a declaration of non-infringement should, conversely, weigh the benefit of acting first before the court of its choice.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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