Tavoulareas v Tsavliris [2004] EWCA Civ 48

[2004] EWCA Civ 48
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH
DIVISION (TOMLINSON J.)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 February 2004
Before
LORD JUSTICE THORPELORD JUSTICE MANCEMR. JUSTICE EVANS-LOMBE
Between
TAVOULAREASAppellantTSAVLIRISRespondent
Mr Philip Shepherd QC (instructed by Howe & Keates) for AppellantMr Peter Irvin (instructed by Constant & Constant) for Respondent
Hearing Hearing date : 17 December 2003JUDGMENT
[1]This is an appeal against the order of Tomlinson J dated 21st March 2003, staying the claimant’s action against the first and second defendants, on the grounds that the Greek courts were first “definitively seized” of proceedings for negative declaratory relief brought by these defendants against the claimant in the First Instance Court of Piraeus. The issue arises under article 21 of the Brussels Convention, since the relevant events occurred at the end of 2001. Council Regulation No. 44/2001, which largely supersedes the Brussels Convention, only came into force on 1st March 2002. Its terms would provide a simpler answer to the present issue (cf article 30), but would not avoid the forum shopping which is at its root. Freedom to forum shop by seeking negative declaratory relief is inherent in the European Court of Justice’s decisions in Gubisch v. Palumbo (Case 144/86), The Tatry and Maciej Rataj (Case 406/92) [1995] 1 Ll.R. 302 and, most recently, Erich Gasser GmbH v. Misat Srl (C-116/02), where the court declined to reconsider its previous jurisprudence in this regard.[2]The claim relates to amounts allegedly due (primarily if not exclusively advances) made under agreements made in 1991. The present English proceedings were issued on 7th November 2001 and immediate steps were taken to serve both defendants at their English addresses. It is accepted that they were properly served on, respectively, 24th December and 23rd November 2001. However, on 8th November 2001, as the judge put it, “the defendants retaliated by issuing an action” before the Piraeus court. The Piraeus proceedings assert duress and seek, as the judge put it, “effectively …. a declaration that the Tsavliris interests have no further liability to the claimant or to the companies in which he is interested ….”.[3]The claimant resided at all material times in Florida. The document lodged with the Piraeus court on 8th November 2001 to initiate the Greek proceedings alleged that the claimant was resident in London, giving a Regent’s Park address where the claimant ceased to reside in 1992. He has lived in the USA since (at least) 1995. The claimant’s case is that the defendants knew that he lived in the USA. The claimant’s solicitor said this in a witness statement dated 28th March 2002:
“…. I am informed by the Plaintiff that he had corresponded with the Defendants at an earlier time whilst he was resident in the United States and that they were fully aware of his residency there and not in London.”
The defendants’ evidence does not deny this statement.[4]Article 134 of the Greek Code of Civil Procedure regulates “service on persons or entities domiciled out of the (Greek) jurisdiction” in the following terms:
“SERVICE ON PERSON/LEGAL ENTITIES DOMICILED OUT OF THE (GREEK) JURISDICTION 1. If the person or legal entity on whom service is to be effected has their domicile or seat out of jurisdiction, the service is effected on the Public Prosecutor of the court where the cause of action remains pending or where the action is to be brought or the one which ordered the judgment being served, while for actions being brought before the Court of Peace, the service is effected on the Public Prosecutor of the Court of First Instance to which the relevant Court of Peace belongs. For documents which relate to enforcement, service is effected on the Public Prosecutor of the Court of First Instance, in the district of which the enforcement is effected, and in relation to extra-judicial documents, (service is effected) on the Public Prosecutor in the district where the recipient of service has his domicile or known residence, and if there is no domicile or known residence in Greece, service is effected on the Athens Court of First Instance Public Prosecutor. 2. In the case of paragraph 1 (supra) the request for service must specify with accuracy the place and address of the recipient of service 3. The Public Prosecutor – upon receipt of the document – should dispatch it without undue/culpable delay to the (Greek) Minister of Foreign Affairs, who has the obligation to forward the document to the person/legal entity on whom service is to be effected.”
[5]The Piraeus proceedings were served on the Public Prosecutor under article 134(1) on 19th November 2001, and as a result of this subsequently sent to or attempted to be served at the Regent’s Park address, where unsurprisingly (it seems, although this is not formally in evidence) no reply was obtained. The claimant in fact received notice of the Greek proceedings by a different route, on 31st December 2001, when he saw a letter sent to his English solicitors challenging the English jurisdiction and enclosing details of the Greek proceedings. By then, the Greek court had fixed 17th January 2003 as its first hearing date, so the claimant had ample time, if he wished, to appear in and defend the Greek proceedings. Save for the steps taken through the Public Prosecutor, no attempt has, it appears, ever been made to serve the claimant in person or in the USA, where he resides.[6]The claimant’s case is however that the English proceedings have priority under article 21, which reads:
“Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion decline jurisdiction in favour of that court. Where the jurisdiction of the court first seized is established, any court other than the court first seized shall decline jurisdiction in favour of the other court.”
[7]It is common ground, in the light of the authorities cited in paragraph 1 above, that the English and Greek proceedings involve the same subject matter and are as between the claimant and the defendants between the same parties. It is common ground that there is authority binding on us that the English courts only became “seized” of the present proceedings for the purpose of article 21 as against any defendant as and when he was served, i.e. on respectively, 24th December and 23rd November 2001: Dresser U.K. Ltd. v. Falcongate Freight Management Ltd. [1992] QB 502. The question is whether the Greek courts became seized for that purpose at an earlier date. The only two dates relied on are 8th and 19th November 2001. The judge considered evidence of Greek law put before him in purely documentary form. He was not prepared to accept that there was any relevant seizure at the first date (paragraph 26). However, he concluded that there had been as at the second date (paragraphs 30.32 and 33).[8]At the heart of the issue in this case lies another decision of the European Court of Justice, Zelger v. Salinitri (Case 129/83) [1984] ECR 2397. The question posed by a German court in that case was:
“For the purpose of resolving the question which court of a contracting state was first seised of proceedings (article 21 of the Convention) is it the moment at which the document initiating them was lodged with the court (“Anhängigkeit”) that is decisive or the moment at which - by service of that document on the defendant - the proceedings have become fully instituted (“Rechtshängigkeit”)?”
Advocate General Mancini suggested, as a relatively clear-cut test for the purpose of article 21, the moment at which a lis pendens arises under the law of the court seized, subject to the proviso that “That moment, however, must be identifiable by the application of objective criteria and must not precede service of the document initiating the proceeding on the defendant”. The European Court did not endorse the Advocate General’s reasoning or conclusions, but said instead:
“13 It follows from the comparison of the legislation mentioned above that a common concept of lis pendens cannot be arrived at by a rapprochement of the various relevant national provisions. A fortiori, therefore, it is not possible to extend to all the contracting parties, as is proposed by the plaintiff in the main action, a concept which is peculiar to German law and which, because of its characteristics, cannot be transposed to the other legal systems concerned. 14 It may properly be inferred from article 21, read as a whole, that a court's obligation to decline jurisdiction in favour of another court only comes into existence if it is established that proceedings have been definitively brought before a court in another state involving the same cause of action and between the same parties. Beyond that, article 21 gives no indication of the nature of the procedural formalities which must be taken into account for the purposes of considering whether or not to recognize the existence of such an effect. In particular, it gives no indication as to the answer to the question whether a lis pendens comes into being upon the receipt by a court of an application or upon service or notification of that application on or to the party concerned. 15 Since the object of the convention is not to unify those formalities, which are closely linked to the organization of judicial procedure in the various states, the question as to the moment at which the conditions for definitive seisin for the purposes of article 21 are met must be appraised and resolved, in the case of each court, according to the rules of its own national law. That method allows each court to establish with a sufficient degree of certainty, by reference to its own national law, as regards itself, and by reference to the national law of any other court which has been seised, as regards that court, the order or priority in time of several actions brought within the conditions laid down by the Convention. 16 The answer to the question raised by the Oberlandesgericht München is therefore that article 21 of the convention must be interpreted as meaning that the court “first seised” is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned.”
The European Court’s answer to the German court’s question was:
“Article 21 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted as meaning that the court “first seised” is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned.”
[9]In the case of Dresser, the Court of Appeal considered what that meant in the context of English procedure. Bingham LJ, giving the leading judgment, pointed out at p.514G-515B:
“Until the United Kingdom acceded to the Brussels Convention in 1987, no English court had ever had to consider when it was "first seised" of proceedings nor when proceedings were "definitively pending" before it. These are not terms of art, nor terms with any established meaning, in English law. But articles 21 to 23 of the Convention are now part of English law and section 3(1) of the Civil Jurisdiction and Judgments Act 1982 requires us to apply the Convention in accordance with principles laid down by the European Court of Justice. We must therefore decide when, under English law, the requirements for the present proceedings to become definitively pending were first fulfilled. Since this question never arose, and never could have arisen, before 1987 one could not expect earlier authority to yield a simple, ready-made answer. We must be wary of adopting and applying any rule developed for a different purpose in different circumstances. In determining the effect of national law for purposes of the Convention we must, I think, have regard to the international purpose which the Convention was made to achieve.”
Ralph Gibson LJ made the same point at p.524E-G. I underlined these passages in a judgment given at first instance in Grupo Torras SA v. Al-Sabah [1995] 1 Ll.R. 374, 412-5. But their short message is one which any national legal system should be expected to understand, namely that problems must be solved in the context in which they arise and that previous domestic concepts of pendency cannot be expected to provide any necessary answer regarding pendency for the novel purposes of the Brussels Convention.[10]Counsel presented the court in Dresser with examples of countries (France and Belgium in particular) in which it was suggested that the courts would regard themselves as “seized of proceedings” upon their service on an officer of justice or huissier for onward delivery. Bingham LJ’s response to these, at p.522, is also of interest:
“Although (as recognised in Zelger v. Salnitri [1984] E.C.R. 2397) practice on the Continent of Europe varies from country to country, Mr. Leggatt accepted that courts in those countries would not ordinarily regard themselves as seised of proceedings until (at earliest) the proceedings had been actually served on and thus brought to the attention of the defendant. But he pointed out that service and notice were not in all cases coincident. Thus under Dutch procedure, for example, a defendant resident abroad is treated as served when a copy of the proceedings is served on the officier van justitie for the issuing court, and French procedure provides in similar circumstances that service is complete when the huissier delivers the proceedings to the ministère public. While grateful to be told of these departures from the ordinary rule, it does not affect my conclusion. We are concerned to analyse and apply English procedure, and we will review that of other countries only when an issue under the Convention falls to be decided. We must then accept their interpretation of their procedural law. It may, however, be that in other countries as well as this procedural rules will call for reconsideration in the light of the Convention.”
Bingham LJ’s rejection of issue, and his adoption as the general (though not invariable) rule of service, as the moment of definitive seizure was couched in the following terms:
“ …… it is in my judgment artificial, far-fetched and wrong to hold that the English court is seised of proceedings, or that proceedings are decisively, conclusively, finally or definitively pending before it, upon mere issue of proceedings, when at that stage (1) the court's involvement has been confined to a ministerial act by a relatively junior administrative officer; (2) the plaintiff has an unfettered choice whether to pursue the action and serve the proceedings or not, being in breach of no rule or obligation if he chooses to let the writ expire unserved; (3) the plaintiff's claim may be framed in terms of the utmost generality; (4) the defendant is usually unaware of the issue of proceedings and, if unaware, is unable to call on the plaintiff to serve the writ or discontinue the action and unable to rely on the commencement of the action as a lis alibi pendens if proceedings are begun elsewhere; (5) the defendant is not obliged to respond to the plaintiff's claim in any way, and not entitled to do so save by calling on the plaintiff to serve or discontinue; (6) the court cannot exercise any powers which, on appropriate facts, it could not have exercised before issue; (7) the defendant has not become subject to the jurisdiction of the court. It would be wrong, at this early stage in the life of the Convention (in so far as it affects the United Kingdom), to attempt to formulate any rule which will govern all problems which may arise in the future. I am, however, satisfied that the English court became seised of these proceedings, which first became definitively pending before it, when the defendants were served on 13 July 1989. The plaintiffs and the defendants then became bound by the Rules of Court to perform the obligations laid on them respectively or suffer the prescribed consequences of default. The defendants became subject to the court's jurisdiction unless they successfully challenged or resisted it which they were required to do then or not at all. In the ordinary, straightforward case service of proceedings will be the time when the English court becomes seised. I would, however, stress the qualification, because that is not an invariable rule. The most obvious exception is where an actual exercise of jurisdiction (as by the granting of a Mareva injunction or the making of an Anton Piller order or the arrest of a vessel) precedes service: plainly the court is seised of proceedings when it makes an interlocutory order of that kind. Further exceptions and qualifications may well arise in practice, but they do not fall for consideration in this case.”
[11]The Greek Civil Code of Procedure contains provisions regarding the issue and service of proceedings and lis pendens, as follows:
“215. COMMENCEMENT OF PROCEEDINGS 1. Proceedings are commenced by filing the “action” (i.e. lawsuit) with the Registry Office of the court before which the action is being brought and by the service of a lawsuit copy on the defendant…. 221. CONSEQUENCES OF ISSUE OF PROCEEDINGS AND SERVICE OF ACTION 1. Upon the issue of proceedings pursuant to Art. 215, the filing of lawsuit results to: a) pendency of action, b) inability to vary the jurisdiction and competence of the relevant court c) priority amongst more than one competent courts, and the service of lawsuit leads to all the results that substantive law stipulates are derived from instituting proceedings. 2. Pending trial, the filing of an application aiming at the rejection, acknowledgement or formation (of a cause of action) as well as a plea of set-off entail pendency of action. 222. “LIS PENDENS”
CONSEQUENCES 1. As from the time “lis pendens” has come into effect, and for as long as it lasts, it is not possible to hold a new hearing before any court for the same dispute between the same parties to the proceedings, provided they appear under the same capacity. 2. If during “lis pendens”, another lawsuit, cross-action, “main” joinder of parties or plea of set-off for the same dispute is filed, the hearing (pertaining to any of the abovementioned) is adjourned “ex officio” (i.e. on the court’s own volition) until the first hearing is completed.” Article 159 also provides:
“CASES OF INVALIDITY Infringement of a provision which regulates the procedure and mainly the legal formalities of a procedural instrument entails invalidity which is to be determined and pronounced/ordered by the court. 1. if compliance with the provision is expressly required by the law, on penalty of being declared void, 2. if for this particular breach the judicial means of “cassation” (i.e. appeal to the Supreme Court) or “re-hearing” are permitted, 3. in all other cases, if the judge determines that the infringement (of such provision) has caused to the party (who claims invalidity) detriment which cannot be compensated other than by declaration of nullity.”
[12]Tomlinson J considered the expert evidence adduced before him regarding these articles. The witnesses’ written views were expressed in English, rather than their mother tongue. Without oral evidence or cross-examination, the judge found, understandably, that the exercise with which he was faced was difficult and unsatisfactory. We are in no better or worse position than he was, which means that we must, so far as necessary, make up our own minds what the effect, as well as the significance, is of the evidence before us about Greek procedural law.[13]Tomlinson J’s essential reasoning was, as I see it, this. The mere filing of the suit could not suffice to create pendency. Some form of service was probably required to complete pendency. Under Greek law, such service could be effected on the Public Prosecutor. Pendency was therefore established as at 19th November 2001, at latest. The Greek proceedings thus had priority under article 21.[14]The appellant placed great weight before Tomlinson J (as before us) on Council Regulation (EC) No 1348/2000. This entered into force on 31st May 2001 and was therefore in force at all times relevant to these proceedings. As a Council Regulation, it is, without more, also binding in its entirety and directly applicable in all Member States of the European Union: see its article 25. It provides:
“Whereas:(1) The Union has set itself the objective of maintaining and developing the Union as an area of freedom, security and justice, in which the free movement of persons is assured. To establish such an area, the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters needed for the proper functioning of the internal market. (2) The proper functioning of the internal market entails the need to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States. ….. (4) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of this Regulation cannot be sufficiently achieved by the Member States and can therefore be better achieved by the Community. This Regulation does not go beyond what is necessary to achieve those objectives. ….. (6) Efficiency and speed in judicial procedures in civil matters means that the transmission of judicial and extrajudicial documents is to be made direct and by rapid means between local bodies designated by the Member States. However, the Member States may indicate their intention of designating only one transmitting or receiving agency or one agency to perform both functions for a period of five years. This designation may, however, be renewed every five years. ….. (11) Given the differences between the Member States as regards their rules of procedure, the material date for the purposes of service varies from one Member State to another. Having regard to such situations and the possible difficulties that may arise, this Regulation should provide for a system where it is the law of the receiving Member State which determines the date of service. However, if the relevant documents in the context of proceedings to be brought or pending in the Member State of origin are to be served within a specified period, the date to be taken into consideration with respect to the applicant shall be that determined according to the law of the Member State of origin. A Member State is, however, authorised to derogate from the aforementioned provisions for a transitional period of five years, for appropriate reasons. Such a derogation may be renewed by a Member State at five-year intervals due to reasons related to its legal system. (12) This Regulation prevails over the provisions contained in bilateral or multilateral agreements or arrangements having the same scope, concluded by the Member States, and in particular the Protocol annexed to the Brussels Convention of 27 September 1968(5) and the Hague Convention of 15 November 1965 in relations between the Member States party thereto. This Regulation does not preclude Member States from maintaining or concluding agreements or arrangements to expedite or simplify the transmission of documents, provided that they are compatible with the Regulation. ….. CHAPTER 1 GENERAL PROVISIONS Article 1 Scope 1. This Regulation shall apply in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there.2. This Regulation shall not apply where the address of the person to be served with the document is not known. Article 2 Transmitting and receiving agencies 1. Each Member State shall designate the public officers, authorities or other persons, hereinafter referred to as "transmitting agencies", competent for the transmission of judicial or extrajudicial documents to be served in another Member State. 2. Each Member State shall designate the public officers, authorities or other persons, hereinafter referred to as "receiving agencies", competent for the receipt of judicial or extrajudicial documents from another Member State. ….. CHAPTER II JUDICIAL DOCUMENTS Section 1 Transmission and service of judicial documents Article 4 Transmission of documents 1. Judicial documents shall be transmitted directly and as soon as possible between the agencies designated on the basis of Article 2. ….. Article 7 Service of documents 1. The receiving agency shall itself serve the document or have it served, either in accordance with the law of the Member State addressed or by a particular form requested by the transmitting agency, unless such a method is incompatible with the law of that Member State. 2. All steps required for service of the document shall be effected as soon as possible. In any event, if it has not been possible to effect service within one month of receipt, the receiving agency shall inform the transmitting agency by means of the certificate in the standard form in the Annex, which shall be drawn up under the conditions referred to in Article 10(2). The period shall be calculated in accordance with the law of the Member State addressed. …… Article 9 Date of service 1. Without prejudice to Article 8, the date of service of a document pursuant to Article 7 shall be the date on which it is served in accordance with the law of the Member State addressed.2. However, where a document shall be served within a particular period in the context of proceedings to be brought or pending in the Member State of origin, the date to be taken into account with respect to the applicant shall be that fixed by the law of that Member State. 3. A Member State shall be authorised to derogate from the provisions of paragraphs 1 and 2 for a transitional period of five years, for appropriate reasons. This transitional period may be renewed by a Member State at five-yearly intervals due to reasons related to its legal system. That Member State shall inform the Commission of the content of such a derogation and the circumstances of the case. Article 10 Certificate of service and copy of the document served 1. When the formalities concerning the service of the document have been completed, a certificate of completion of those formalities shall be drawn up in the standard form in the Annex and addressed to the transmitting agency, together with, where Article 4(5) applies, a copy of the document served. 2. The certificate shall be completed in the official language or one of the official languages of the Member State of origin or in another language which the Member State of origin has indicated that it can accept. Each Member State shall indicate the official language or languages of the European Union other than its own which is or are acceptable to it for completion of the form.”
CHAPTER 1 GENERAL PROVISIONS Article 1 Scope Article 2 Transmitting and receiving agencies CHAPTER II JUDICIAL DOCUMENTS Section 1 Transmission and service of judicial documents Article 4 Transmission of documents Article 7 Service of documents Article 9 Date of service Article 10

Certificate of service and copy of the document served

[15]Articles 13, 14 and 15 deal with cases in service by diplomatic or consular agents, service by post and direct service may be possible, and are not presently material. Article 19, which appears in Chapter IV (Final Provisions) is however of interest: “Defendant not entering an appearance 1. Where a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service, under the provisions of this Regulation, and the defendant has not appeared, judgment shall not be given until it is established that:(a) the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory; or(b) the document was actually delivered to the defendant or to his residence by another method provided for by this Regulation; and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend. 2. Each Member State shall be free to make it known, in accordance with Article 23(1), that the judge, notwithstanding the provisions of paragraph 1, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled: (a) the document was transmitted by one of the methods provided for in this Regulation; (b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document;(c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities or bodies of the Member State addressed. 3. Notwithstanding paragraphs 1 and 2, the judge may order, in case of urgency, any provisional or protective measures. 4. When a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service, under the provisions of this Regulation, and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the following conditions are fulfilled: (a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal; and (b) the defendant has disclosed a prima facie defence to the action on the merits. An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment.Each Member State may make it known, in accordance with Article 23(1), that such application will not be entertained if it is filed after the expiration of a time to be stated by it in that communication, but which shall in no case be less than one year following the date of the judgment. 5. Paragraph 4 shall not apply to judgments concerning status or capacity of persons. …. Article 23 Communication and publication 1. Member States shall communicate to the Commission the information referred to in Articles ….4 …. and 19. 2. The Commission shall publish in the Official Journal of the European Communities the information referred to in paragraph 1.” (a) the document was transmitted by one of the methods provided for in this Regulation; (b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document; (c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities or bodies of the Member State addressed. (a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal; and (b) the defendant has disclosed a prima facie defence to the action on the merits. Article 23

Communication and publication

[16]The judge treated articles 7 and 9 of the Regulation as irrelevant to a question whether there had been sufficient service under Greek law in order for the Greek proceedings to become pending. He distinguished Molins plc v. GD SpA [2000] 1 WLR 1741 (CA) and Phillips v. Symes [2002] 1 WLR 853 (Hart J.) as cases concerned solely with the validity of the method(s) by which service could take place abroad, in circumstances where it was common ground that some form of transmission of documents to a defendant’s foreign residence or domicile was required. The issue presently before the court was, in contrast, whether any form of transmission or service abroad is required at all in order for the Greek proceedings to become definitively pending (or whether it suffices that the documents reached the Public Prosecutor).[17]Mr Shepherd QC for the appellant claimant repeats as his first and more fundamental submission that the judge erred in relation to the Regulation. However, he continues to challenge the judge’s reasoning and conclusion on pendency under article 21, quite apart from the Regulation. I take his submissions in that order.[18]Looking at the evidence and materials relating to Greek procedural law, it is clear that, for Greek domestic purposes, some form of service is as a general rule required for proceedings to become pending and that, where use is made of article 134, such service is treated as occurring on the receipt of documents by the Public Prosecutor. The issue is how far the same position applies for the purposes of article 21 of the Brussels Convention. In paragraph 29 of his judgment, the judge quoted passages from the first opinion dated 21st June 2002 defendants’ Greek law expert, Professor Antapassis. But the judge’s quotation was incomplete, and its incompleteness obscured the fact that the first paragraph quoted represented the Professor’s preferred opinion, while the next two paragraphs represented no more than an alternative, if the Professor’s preferred opinion were to be rejected. Because the judge did not appreciate this, he also found it unclear whether Professor Antapassis was proffering 8th or 19th November 2001 as his preferred date of seisin - see paragraph 30 of the judgment. In fact, Professor Antapassis made clear that he was proffering 19th November 2001 as his preferred date, as the following fuller quotation shows:
“B. Therefore the issue of deciding when a court becomes “first seized” is one of construction of Art. 21 of the Brussels Convention. It is held that the interpretation of the terms of Art. 21 should be made independently i.e. the relevant terms must be given an independent community meaning. Some judgments support the view that the court is “first seized” when both the filing and the service of the writ were duly effected; yet, three other judgments which are in favour of the view that this is a matter that should be solely determined by the lex fori i.e. the internal law of each Contracting State will determine the point when proceedings are commenced and the litigation is pending (e.g. art. 221 of the Greek Civil Procedural Code provides that the litigation is considered pending retrospectively from the date of the filing of the writ). a. It is my considered opinion that the first interpretation of the relevant terms of Art. 21 of the Brussels Convention is more correct, since, unless the writ is properly served, the Court will not examine the merits of the case. Until the service of the writ is made, the litigation/action is not finalized. In our case, the litigation action before the High Court of Justice. Queen’s Bench Division was finalized on 23.11.2001 (i.e. the date of the service of the writ on Andreas Tsavliris) and 24.12.2001 (i.e. the date of the service of the writ on George Tsavliris). The litigation action before the Multi-member Court of First Instance of Piraeus is finalized on the 19.11.2001 (i.e. the date of the service of the writ on all the defendants). Therefore the English Court (i.e. the “court other than the court first seized”) shall of its own motion stay its proceedings until such time as the jurisdiction” of the Greek Court (i.e. the Court “first seized”) is established. b. If, however, the second interpretation is considered more correct, one should examine the internal law of each Contracting State, ie in our case the English and Greek procedural law. ….. In accordance with the provisions of the Greek Civil Procedural Code the court is seized of jurisdiction when the action is brought against the relevant parties ie when it is filed and served to the parties. From the date of its filing, the litigation is considered pending and moreover the jurisdiction of the competent Court is irrevocably determined (article 221 of the Greek Procedural Code). Therefore, in our case, under Greek Procedural law, the Greek Court is considered seized on 8-11-2001. It follows from the above that no matter which view one should adopt, the Multi-member Court of First Instance of Piraeus is the court “first seized”, pursuant to Art. 21 of the Brussels Convention.” ….. In accordance with the provisions of the Greek Civil Procedural Code the court is seized of jurisdiction when the action is brought against the relevant parties ie when it is filed and served to the parties. From the date of its filing, the litigation is considered pending and moreover the jurisdiction of the competent Court is irrevocably determined (article 221 of the Greek Procedural Code). Therefore, in our case, under Greek Procedural law, the Greek Court is considered seized on 8-11-2001. It follows from the above that no matter which view one should adopt, the Multi-member Court of First Instance of Piraeus is the court “first seized”, pursuant to Art. 21 of the Brussels Convention.”
[19]It is of interest that Professor Antapassis suggests that article 21 must be given “an independent community meaning” (a thought not too distant from that expressed in Dresser), and that (in that context apparently) he also prefers the view that both issue and service must be required. Only as a fall-back, contrary to his preferred view, does he examine the position solely by reference to Greek internal law. But Greek internal law does not contain any concept of definitive pendency, and it is evident that Greek law and Greek courts (like English law and courts prior to Dresser) have never had occasion to consider what such a concept might involve in the context of Greek procedure for the purpose of article 21 of the Brussels Convention. No authority was at all events put before the judge or before us in which they have done so. Like Professor Antapassis, I do not think that the matter can be viewed purely by reference to the circumstances in which proceedings may be described as pendent for Greek domestic purposes.[20]Professor Antapassis says that, as a matter of Greek domestic law, the effect of article 221 is that proceedings may be considered pending retrospectively from the date of filing of the writ, once service has been effected. See the citation above from his opinion of 21st June 2002, as well as paragraph 7.B of his statement dated 19th December 2002 and his citation of Vathrokokilis’s Code of Civil Procedure, Art. 215 para. 46 (p.114 in the Greek Authorities bundle). Mr Tzoumas of Aristides Economides & Co., the defendants’ other expert, makes the same point:
“From the time when the action is submitted and provided that the bringing of the action is concluded with service on the defendant, the procedural context of the dispute is officially and conclusively crystallised and the Court becomes seized of the proceedings, namely the matter is sub judice and a Court decision is expected.”
[21]However, it is impossible to accept that the Greek proceedings were, for the purposes of article 21 of the Brussels Convention, definitively pending from 8th November 2001 (when they were filed). Article 21 requires a simple chronological approach, which is inconsistent with retrospectivity. That is obvious in principle, and was stated in Dresser, where Bingham LJ said: “”Some tie-break rule was necessary, and that adopted by the Convention was a simple test of chronological priority.” It is also confirmed by Grupo Torras v. Al-Sabah [1996] 1 Ll.R. 7, at p.24 (CA) and in Molins plc v. GD SpA [2000] 1 WLR 1741, paragraphs 37-29.[22]The Greek expert evidence discloses that there are different theories regarding litispendency under Greek domestic law. Mr Tzoumas of Aristides Economides & Co. (also instructed by the defendants) in an opinion dated 11th July 2002 and Professor Antapassis in a witness statement dated 19th December 2002 described two competing theories of the position under Greek internal law prior to service. The theoretical difference between them appears to be as to the “existence” (or, more difficult still for an English reader, “substance”) of the proceedings before service. The practical difference may be whether a Greek court would be obliged of its own motion to refuse to take any further step, pending service, if it became aware that there had been no service, or whether it would only be obliged to take note of lack of service if and when this was brought to its attention by a party able to show that it had been prejudiced thereby. Professor Antapassis and Mr Tzoumas prefer the theory according to which the proceedings do exist or have some “substance”, even though no service has yet been effected. That, I should say, is in my view also the effect of (poorly translated) decisions of the Piraeus and Aegean Courts of Appeal (315/1987 and 209/2000). Although these decisions state that service is necessary for the operation not only of the “substantive legal effects”, but also for the lawful summoning of the defendant and setting down in the cause list, they go on to make clear that failure to serve or invalid service only renders the summonsing or trial “inadmissible” in the light of the preconditions of article 159(3), and that failure to serve can “in view …. of the purpose of service, which lies in notification ….” be “made up for (in the sense that those effects are not longer impeded) if the [defendant] brings on the hearing himself or takes part in the hearing without opposing or is his opposition [i.e. objection] is dismissed by the court owing to the non-operation of the preconditions of article 159 para. 3 [i.e in the absence of prejudice ….” Even on the alternative theory, it also seems clear that lack of service of domestic proceedings could be rectified or “made good” if and when the party who should have been served acquires actual notice of the proceedings in time to defend himself or herself. That this is so under article 159 in relation to proceedings not involving service on a defendant domiciled abroad is also expressly accepted by Mr Papadimitriou, instructed by the claimant, in his witness statement dated 4th November 2002: see Appeal Bundle Tab 20 p.156 (foot).[23]However, Mr Papadimitriou distinguishes the position in relation to proceedings for service on a foreign defendant addressed to an incorrect foreign address. He relies on the terms of article 134(2), and cites a series of authorities, starting in the Supreme Court of Greece in 1978 (Case 398/1978 [NoB 27,180] (Greek Authorities bundle p.5) and continuing in the Athens Court of Appeals (Cases 6999/1990 [Dik/ni 31,1518]; 8525/1987 [EEN 1987,873]; 2036/1979 [NoB 29,292]; and 1593/70 [Arm24,102]) (Greek Authorities bundle pp.7, 8, 9 and 12). These authorities all speak of proceedings requiring foreign service as “void” when the address for service given was inaccurate, so as to make it impossible for the document to be forwarded to the relevant person.[24]One of the reasons that the judge gave for preferring Professor Antapassis’s evidence (and apparently for preferring it generally) was that Mr Papadimitriou simply went on to say, in this connection, that:
“In view of the above, it is questionable whether the above service of the document created litispendency according to the provisions of Greek law”
. However, Mr Papadimitriou had cited the authorities which I have mentioned in a context where he was expressly disagreeing with Mr Tzoumas’s opinion that “case law does not treat the service of the writ as a necessary element for the legal existence of the action, the deficiencies, the failures and even the total absence of service on the defendant does not invalidate the initiation of the action and ensuing procedural consequences including that of the Court having seized of the proceedings [sic]”. It is also relevant to look at Professor Antapassis’s response in paragraph 6 of his statement of 19th December 2002 to Mr Papadimitriou’s citation of these cases. What he said was this: “The cases …. deal with the implications of the deficiencies of service of the writ, pursuant to Articles 134-136 of the Greek Code of Civil Procedure. In particular, in all these cases the address of the person to whom the writ was addressed was erroneously or fictitiously reported or not reported at all. Consequently, they are not relevant to our case since the address at which Mr Tavoulareas has been served in London is neither erroneous nor fictitious. …. Mr Tavoulareas once resided at this address. This address is therefore said to have been an “out of date”/old address. Once again it should be noted that this is a factual matter that will be decided by the Greek Court. In particular, the Greek Coutt will determine whether the alleged (by the Defendant) defective service caused him irrevocable damage, pursuant to Art. 159 par. 3 of the Greek Code of Civil Procedure”.[25]The point made by Professor Antapassis in the first of his two paragraphs just cited is unconvincing. The second paragraph does not address Mr Papadimitrious’s distinction between purely domestic proceedings and proceedings requiring service under article 134. On the other hand, it is also right to say that the cases cited by Mr Papadimitriou (although they cannot be dismissed simply as “old”, as Mr Irvin sought to) do not appear specifically to address the question or relevance of detriment. Article 159(3) seems as a matter of language capable of covering the present situation (while article 159(1) and (2) appear irrelevant). The upshot is that I am by no means as certain as the judge that the right view of Greek domestic law is that proceedings requiring service under article 134 are subject to article 159. However, I am prepared for present purposes to assume that they are, and to proceed on that basis. I cannot however derive from Mr Papadimitriou’s manner of expressing himself set out at the beginning of paragraph 24 above any support for a view that his evidence should be generally discounted in other areas. The Greek authorities in this whole area are very open to differing analyses.[26]Assuming, for the present, that Professor Antapassis’s and Mr Papadimitriou’s preferred theory (mentioned in paragraph 22 above) is generally correct and relevant under article 134 for the purposes of purely domestic law, that does not in any way determine the present issue whether the proceedings were definitely pending for the purposes of article 21 of the Brussels Convention. The mere “existence” of proceedings is clearly insufficient to mean that they are definitively pending. The European Court in Zelger v. Salinitri and the Court of Appeal in Dresser had no difficulty with the idea that proceedings could exist, in some sense or other, from the time the claimant first applied to the court, without necessarily being definitively pending under article 21. Nor can the possibility that the court might, despite lack of service, refuse to set aside proceedings in circumstances where a defendant had had adequate notice and opportunity to defend himself suffice to make proceedings definitively pending at a time before there had yet been any such notice or opportunity – see again Molins plc v. GD SpA, paragraphs 37-39. However, I would not distinguish (and I do not think that this Court did on the facts in Molins itself distinguish) between void and voidable proceedings in the way which HHJ Diamond QC in a previous case cited in paragraph 38 in Molins might appear to envisage. The question whether proceedings are “definitively pending” is, as I have said, a different question from the question whether proceedings “exist” at all or are a complete nullity. So, for the reasons given in paragraphs 18-21 above, the Greek proceedings could not on any view be regarded as pending under article 21 prior to 19th November 2001.[27]The next question is whether Council Regulation 1348/2000 has any bearing on the question when the proceedings became definitively pending for the purpose of article 21 of the Brussels Convention. Greece gave notice under article 23 that it would not be derogating from article 9(1) and (2) of the Regulation (OJ C 151, 22.5.2001, p.4 et seq.). The claimant’s case is that, since England was the Member State addressed by the documentation delivered to the Public Prosecutor under article 135 for service here, the Greek proceedings could thus only be regarded as served if and when they were served in accordance with the law of England. No such service ever took place; and the English defendants submit that the Greek proceedings cannot have become definitively pending in Greece until the claimant had (at least) received some form of notice about them, which was not until after the English action had become definitively pending.[28]If the Regulation is irrelevant as the judge held, this could be because the present case was not of a nature falling within the Regulation, i.e. was not a civil matter “where a judicial …. document ha[d] to be transmitted from one Member State to another for service there” or because the Regulation has no bearing at all on litispendency under article 21. The judge’s approach was, I think, along the latter lines.[29]A third suggested reason why the Regulation should be viewed as irrelevant featured prominently in the defendants’ case below and before us, and had Professor Antapassis’s support. It was that the claimant, on his own case, was not domiciled or resident at any material time in England, the Member State to which service was directed under article 134. On this basis, it would, in the view of Professor Antapassis, be “an abusive tactic” for the claimant to argue that service on the Public Prosecutor was not good service for the purposes of article 21. Professor Antapassis’s argument amounts, in my view, to trying both to have the cake and eat it. It is the defendants who invoked article 134 and asserted that the claimant was available for service at an English address. Nothing in the Regulation limits its application to situations in which the proposed defendant to Greek proceedings is actually domiciled, or may actually be found at the address, in the country where the proposed claimant asserts that he can be found. Assuming (as I do for present purposes) that the delivery to the Public Prosecutor of a document with an inaccurate address would nonetheless be valid service under Greek domestic law, its delivery seems to me an equally valid invocation of the Regulation. The consequence is that the validity and date of service fall to be determined according to the Regulation in all European Member States in which the Regulation is in force.[30]I turn therefore to consider whether the present case is of a nature falling within the Regulation, i.e. is a civil matter “where a judicial …. document has to be transmitted from one Member State to another for service there”. It may be argued that, because under Greek internal law, service is treated as effected when the proceedings were served on the Public Prosecutor, this is not a case where a judicial document had to be transmitted from one Member State to another “for service there”. I see no merit in any such argument. The Regulation must be given a sensible international meaning consistent with its harmonising aims. It is clear that it is directed to precisely the same subject-matter as article 134 of the Greek Code of Civil Procedure – the transmission of a judicial document from one state to another for service there. Article 134 is headed “Service on person/legal entities domiciled out of the jurisdiction. Further, while article 134(1) speaks of service on the Public Prosecutor, and while Greek internal law may by itself treat this as important for certain purposes, article 134(2) and (3) both speak of service in the sense of the service to be effected abroad on the defendant there. A construction of the Regulation whereby its terms could simply be avoided by treating the relevant service as being on the Public Prosecutor is also inconceivable. Finally, I note that by communication under article 23 of the Regulation, Greece has designated the Public Prosecutor’s offices as the relevant “transmitting agency” under article 4 (cf OJ C 151, 22.5.2001, p.4 et seq.).[31]The final question, whether the Regulation is relevant in the present context of litispendency under article 21, goes to the heart of the appeal. On the one hand, it can be said that the Regulation’s obvious purpose is to develop the single European legal space (recital 1) and standardise “the material date for the purposes of service” (recital 11). The Regulation was drafted with the Brussels Convention in mind (cf recital 12), and so as, in particular, to prevail over the Protocol to that Convention, article IV of which contains provisions relating to the manner, even though not the date, of service. This court has thus held in Molins plc v. GD SpA that, where service is required by a foreign law, the decision whether there has been a valid method of service depends not on the foreign law, but on the application of the Regulation. Aldous LJ said this at paragraph 40:
“Once it is established, as it is, that service is required for proceedings to be definitively pending under Italian law, then the decision as to whether service took place depends upon whether service was effected as required by art IV of the Protocol to the Brussels Convention. In so far as Italian law differs it is irrelevant. The purpose of the Convention is to achieve a legal systemisation which will give the greatest legal certainty. It is designed to ensure recognition and enforcement within the European Union of judgments given in the courts of Contracting States. The Convention overrides national law, but does not exclude national law where the Convention is silent. Importantly the Convention is not silent on service. It provides in art IV of the Protocol for the way in which service of judicial documents is to be effected, namely in accordance with the proceedings laid down in conventions and agreements between the Contracting States. Thus when service is a requirement, service must be carried out in accordance with that Article and the Conventions to which I have already referred. That is emphasised in art 27(2) which excludes from recognition judgments not duly served, ie. obtained by default without proper service. Further under both English and Continental legal systems service out of the jurisdiction is regarded as an interference with sovereignty (Ferrarini Spa and others v Magnol Shipping Co Inc (The “Sky One”) [1988] 1 Lloyd’s 238, at 241) and therefore it would be odd that service, giving seisin, could be effected except under conditions set out in International Conventions or in accordance with the national rules of the Contracting State where service is to be effected.”
That being so, it can be said with force that, where service is required of any nature covered by the Regulation, both the question whether the method of service was valid and any question as to whether and when service took place should now be answered by reference to the Convention.[32]In response, it may be objected that definitive pendency under article 21 need not necessarily depend on service - after all, the European Court in Zelger v. Salinitri refused the Advocate General’s invitation to hold that it should – and, so, that a national legal system may be definitively seized of litigation in the light of its internal procedural rules, without insisting on service at all. If that is so, then it may be said that, even in cases where service would involve the transmission of documents abroad in accordance with the Regulation, it remains possible for the Greek courts to be regarded as definitively seized of a case on some other basis; and that, for the same reason, it may not follow that, because the Greek internal procedural rules link litispendency to “service” (satisfied prior to the Regulation by service on the Public Prosecutor), the link must now be taken to be to service under the Regulation.[33]The fact remains that the structure of Greek procedural rules (articles 215 and 216 in particular) does make service a pre-condition to litispendency, even under purely domestic law, while the Regulation is intended to introduce uniform procedures and principles regarding service at an international level. The Greek courts have not yet themselves had to consider when proceedings may be said to be definitively pending before them for the purposes of article 21 in the light of the Regulation. But, when and if they do so, they may also be expected to take a similar approach to that in Dresser, and to aim at the conclusion that best fits the underlying purposes of the Convention. That may, as Bingham LJ said in Dresser, mean reconsidering national procedural rules in the light of the Convention (or now the Convention read with the Regulation). It also seems consistent with Professor Antapassis’s preference for (though not his suggested application of) the view that “the interpretation of the terms of Art. 21 should be made independently ie the relevant terms must be given an independent community meaning”. But, whether or not that is the correct understanding of what Professor Antapassis meant, there seems to me no difficulty about reading litispendency under articles 215-6 of the Greek Code of Civil Procedure as requiring service in accordance with and in the sense of the Regulation before Greek proceedings could be said to be definitively pending for the purposes of article 21, and it would seem to me inappropriate to read it in any other sense for the purposes of article 21.[34]That conclusion is supported by Mr Papadimitriou in both his opinion and his statement. Professor Antapassis did not address the Regulation at all in his first opinion. He does not seem to me to address the present point directly in his statement. In paragraph 7.A of his statement, he analyses the position on the basis of his preferred position that litispendency under article 21 has an “independent community meaning”, whereas in paragraph 7.B he takes the alternative view that it is a matter to be determined purely by the lex fori (meaning here the purely internal procedural law of Greece). In the former context, he simply asserts that litispendency must continue to depend on service on the Public Prosecutor. His further point that the Greek courts could proceed without any certificate of service does not seem to carry matters far. His submission that the Greek courts should decide whether they were first seized cannot be accepted: see Zelger v. Salinitri, paragraph 15 and Grupo Torras [1996] 1 Ll.R. 7 (CA), 20.[35]The relevance of the Regulation to any conception of definitive pendency for the purposes of article 21 of the Convention is in my view also confirmed by article 19 of the Regulation, although this article was not highlighted before us and I would reach the same result without it. Article 19(1) prevented the Greek courts from giving judgment until it was established that service had been effected by a method prescribed by English law for persons in England or that the documentation commencing the Greek action was “actually delivered to [Mr Tavoulareas] or to his residence by another method specified by this Regulation”. Neither condition was ever satisfied in this case. Greece has given notice under article 23 in terms indicating that its courts may (though not must) give judgment in a case where all the conditions specified in article 19(2) are satisfied (OJ C 151, 22/5/2001, p.4 et seq.). But under the conditions in article 19(1) judgment can only be given in the absence of a certificate of service or delivery under article 19(1) after the expiry of a period of at least six months since the transmission of the documentation under the Regulation. Here, therefore, the Greek court was throughout the period prior to service of the English action prohibited by article 19 from giving any judgment against the English claimant. The effect of the provisions of article 19 is in my view to reinforce the conclusion that the Greek court cannot sensibly be regarded as having been “definitively seized” of the Greek proceedings for the purposes of article 23 at any time before the English action was served on both the English defendants.[36]Even if one had (contrary to my view) to treat the issue of definitive pendency under article 21 as determined by the view which a Greek court would take about pendency in an entirely domestic context, I would reach a similar conclusion. Suppose for example an issue of priority between one set of Greek proceedings served in person in Greece on 30th June and another set of Greek proceedings where service had to be made out of the jurisdiction, and the documents reached the Public Prosecutor on 20th June, but were not served on the defendant abroad until 20th July. What is involved in “service” under Greek law where documents have to be transmitted abroad appears in the special regime of article 134. That regime is now directly addressed and, so far as inconsistent, superseded by the Regulation. On that basis, I would consider the better view to be that, even in an entirely Greek domestic context of the above nature, the date of service defined by the Regulation should be taken as the date of service under article 134 and so for the purposes of articles 215 and 216, when considering litispendency. That is again consistent with Mr Papadimitriou’s opinion and statement. Professor Antapassis invokes Mr Papadimitriou’s statement that “matters concerning the validity of service, such as …. the date on which the documents should be served is left to the national law”. Mr Papadimitriou was however clearly referring to article 9(2) of the Convention. I have already covered Professor Antapassis’s further miscellaneous points: the retrospective effect of service under Greek law, the relevance of notice of the proceedings acquired without service and the suggested inapplicability of the Regulation because the claimant (the Greek defendant) was not actually domiciled or resident in England.[37]I therefore conclude that, for the purpose of deciding whether the Greek courts were definitively seized of the Greek proceedings, the appropriate conclusion, having due regard to both Greek procedural law and the Regulation, is that they were not definitively seized unless and until either(a) service was effected in accordance with the Regulation or(b) (at the very least) the claimant (the Greek defendant) obtained notice of the Greek proceedings in such time as to enable him to defend them. I have put the alternative introduced by (b) in the most favourable way in which it can be put from the English defendants’ viewpoint. It is unnecessary on this appeal to consider whether, in the light of article 19 of the Regulation, definitive pendency should be regarded as even further postponed.[38]On this basis, since there has never been any service of the Greek proceedings in accordance with the Regulation, the English defendants’ only hope of establishing that the Greek courts were definitively served prior to the English courts would have been to show that the claimant had notice of the Greek proceedings and an opportunity to defend them prior to service on the defendants on the English proceedings. That was not however the case, since the claimant did not know of the Greek proceedings until 31st December 2001, well after service on the defendants of the English proceedings. The claimant’s appeal should be allowed and the English proceedings restored accordingly.[39]I will however also consider the position quite apart from the Regulation, since I am satisfied that the appeal should also succeed on that basis. For this purpose, I continue to assume that the right view of Greek domestic law is that proceedings requiring service under article 134 are subject to article 159 (cf paragraphs 23-25 above). Even so, the present Greek proceedings served on the Greek Public Prosecutor gave an incorrect address for service in England on the defendant. The Greek authorities cited by Mr Papadimitriou establish, at the least, that that was a very serious procedural defect in terms of article 134(2). There could be no certainty that any step taken in the Greek proceedings thereafter would remain valid, or that the proceedings would be able to continue to any sort of conclusion. That would be uncertain, and the proceedings as a whole and any step taken in them would remain vulnerable to challenge under article 159(3), because they had not been duly addressed to or served on anyone. Their vulnerability to challenge could only be removed with time, either by the defendant being found and duly served or by the defendant acquiring notice of the Greek proceedings and having an opportunity to defend them. Both Mr Tzoumas (at Appeal Bundle p.213-4) and Professor Antapassis (in his opinion at Appeal Bundle p.206 and in paragraphs 6 and 7.B of his statement dated 19th December 2002) make clear that whether or not the proceedings and any steps taken in them could be maintained or should be set aside would depend on whether or not the lack of service led to prejudice by way of lack of notice and inability to defend.[40]That being so, I cannot see how, on any proper approach to the concept of definitive seizure for the purposes of article 21 of the Brussels Convention, the Greek court can be regarded, or could regard itself, as having been definitely seized, at any time before either the Greek proceedings were properly served or the defendant had had notice of them and an opportunity to defend. The Greek doctrine, whereby inability to prove irrevocable prejudice precludes a Greek defendant from complaining of the improper addressing of the proceedings or lack of service, represents, in effect, an alternative means by which Greek proceedings may become definitively pending. But they cannot be definitively pending during a period when steps could not be taken to progress them without such steps being liable to be set aside because of the lack of service. In the present case, it was not, therefore, before 31st December 2001 (at the very earliest) that they can be said to have become definitively pending. The reasoning in Molins plc v. G.D. SpA at paragraphs 37-39, considered in paragraph 26 above, is in my view also generally supportive.[41]On this ground also, therefore, as well as on the basis mentioned in paragraphs 33-38, I would allow the appeal and restore the English proceedings.[42]I agree with the judgments of Lords Justice Mance and Lord Justice Thorpe.[43]Tomlinson J reached the decision that he did with great reluctance for the simple reason that the result which it produced was manifestly undesirable. He felt driven to his conclusion by the evidence as to the internal law of Greece. Tomlinson J was faced with what seems to me an almost impossible task. There were no less than six written statements as to the law of Greece. There would have been less had the parties been confined to one expert each. For reasons which are not clear to me, the defendants relied on two experts to cover the same ground. What is clear to me is that none of the three experts were entirely fluent in English and all of them were partisan. With that material and without oral evidence, and particularly cross-examination, the judge was indeed faced with a dire task.[44]The essential question that he had to determine was whether the process commenced by the defendants in Greece on 8 November 2001 was litispendens prior to service of the earlier issued London Claim Form on the claimant. For the judge found that the mere issue of the proceedings in Greece did not constitute a lis pendens. Service was a necessary additional ingredient. So the judge’s concentration was upon the provisions of the Greek civil code directing service out of the jurisdiction.[45]In my judgment Tomlinson J searched the wrong area for solution. I accept Mr Shepherd QC’s submission that an application for a stay under Article 21 of the Brussels Regulation imports the provisions of Article IV of the Protocol. Thus the determination of the question whether proceedings have been served requires the application of the relevant international conventions rather than the internal law of the member state in which the proceedings were issued.[46]The proceedings with which this appeal is concerned were issued on 7 and 8 November 2001 respectively. Thus any question as to the date of service is to be determined by Council Regulation (EC) No 1348/2000, having effect from 31 May 2001. Under Articles 1, 2, 4 and 7 of the Regulations the proceedings issued on 8 November had to be transmitted by the Greek transmitting agency (seemingly the Ministry of Justice in Athens) to the receiving agency, the Senior Queen’s Bench Master in London. Service on the public prosecutor of the court of issue is not an arguable alternative or substitute for the requirements of the Regulation. Accordingly such service did not render the Greek court seized nor was any other step taken in Greece to render that jurisdiction seized prior to completion of the service of the English writ on 24 December 2001.[47]Mr Irvin sought to escape the plain effect of Article IV of the Protocol and of the Service Regulations by submitting that Mr Tavoulareas was not domiciled or resident in a Member State at the relevant date. The domicile or residence of the person to be served does not in my judgment require investigation. The party issuing elects the place of service and the defendants asserted that at the date of issue they believed Mr Tavoulareas to be domiciled and/or resident in London. That belief and consequent election engages Article IV and the Regulation.[48]The dispute in this and in many earlier cases might have been avoided had the Brussels Convention defined what was meant by “first seized” in Article 21. At least the more modern instruments on jurisdiction generally (Council Regulation (EC) No. 44/2001) and in matrimonial matters and in matters of parental responsibility (Council Regulation (EC) No. 1347/2000 not only establish a lis pendens rule in Article II but define when a court shall be deemed to be seized for the purposes.

Cited in 3 later judgments