| CONFLICT OF LAWS — Jurisdiction under Council Regulation — Court first seised — Writ issued in Italy by Italian party and served without translation on English company — English claim issued prior to Italian writ amended to include company sued in Italian action — Translation of Italian writ provided to English company — Whether English or Italian court first seised — Council Regulation (EC) 44/2001, art 30
WPP Holdings Italy Srl and others v Benatti [2007] EWCA Civ 263
CA (Sir Anthony Clarke MR, Buxton and Toulson LJJ): 28 March 2007
Where two parties issued proceedings against each other in different EU jurisdictions, the court first seised of an action within art 30 of Council Regulation (EC) 44/2001 was the court where the document instituting proceedings was first lodged with the court under art 30(1), or first received by the authority responsible for service under art 30(2), so long as the claimant did not subsequently fail to take the requisite steps to serve the claim on the defendant. It was necessary for the document to be capable of service, but invalid service did not prevent seisin.
The Court of Appeal so held, (1) allowing the appeal of the defendant, Marco Benatti, against Field J’s decision on 18 July 2006 that the English court was first seised of the action between the defendant and WPP 2005 Ltd, but (2) dismissing the defendant’s appeal against the decision that the English court was first seised of the actions between the defendant and WPP Holdings Italy Srl and Berkeley Square Holding BV.
TOULSON LJ said that the two alternative procedures for seisin in art 30(1) and (2) of Council Regulation (EC) 44/2001(“the Judgments Regulation”) reflected the existence of different procedures among different member states. Art 30(1) applied to proceedings in England and Wales because they were instituted by the court issuing a claim form, which had subsequently to be served on the defendant. Art 30(2) applied to proceedings in Italy because the writ had first to be lodged with an authority known as UNEP with a request for service on the defendant. When the defendant had signed an advice of receipt, the claimant’s lawyers would lodge the writ and advice of receipt with the court. Under art 30(1) of the Judgments Regulation a court was deemed to be seised at the time when the document instituting the proceedings was lodged with the court “provided that the plaintiff has not subsequently failed to take the steps that he was required to take to have service effected on the defendant”. All that that proviso required was that the claimant should not have subsequently failed to take the steps he was required to take. It sometimes happened that the claimant at the time of issuing the claim form did not know the address of the defendant, possibly because the defendant was being elusive. It would not be just that a defendant should be able, by preventing service under the Council Regulation (EC) 1348/2000 (“the Service Regulation”), to prevent also the court which had issued the claim form from being seised of the action. Similarly all that art 30(2) required of the claimant was that after lodging the document with the authority responsible for service he had not failed to take the steps he was required to take to have the document lodged with the court. The document referred to in art 30(2) obviously had to be capable of being served and lodged with the court so as to institute the proceedings against the relevant party. It was not argued that the Italian writ failed to satisfy that requirement, nor that the defendant failed to comply with art 30(2). Accordingly it did not matter whether the service of the writ by UNEP was valid service on WPP 2005 Ltd under the Service Regulation. There was no injustice to a defendant in adopting that construction of art 30(2), which accorded with its natural meaning. Art 30 was purely concerned with seisin for the purposes of the Judgments Regulation. The Italian court was first seised of the action between WPP 2005 Ltd and the defendant.
BUXTON LJ delivered a judgment concurring in the result. SIR ANTHONY CLARKE MR agreed with Toulson LJ.
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