| PRACTICE — Stay of proceedings — Jurisdiction under European Convention — Claimants issuing proceedings in High Court — Copy claim form not served on Swiss defendants — Defendants issuing proceeedings in Switzerland involving same cause of action — Swiss court seised of proceedings on issue — Whether order dispensing with service making High Court “first seised” of proceedings — Civil Jurisdiction and Judgments Act 1982, Sch 3C (as inserted by Civil Jurisdiction and Judgments Act 1991, s 1(3), Sch 1)
Phillips and another v Symes and others [2008] UKHL 1; [2008] WLR (D) 6
HL(E): Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Mance: 23 January 2008
A judge was entitled in exceptional circumstances to dispense under CPR r 6.9 with service of a claim form so that the claimants would have priority of seisin under art 21 of the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Sch 3C to the Civil Jurisdiction and Judgments Act 1982).
The House of Lords so held in allowing an appeal by the claimants, Jonathan Phillips and Robert Harland (administrators of the estate of Christo Michailidis), from the Court of Appeal (Pill, Neuberger and Wilson LJJ) [2006] 1 WLR 2598, who had allowed an appeal by the second and third defendants, Frieda Nussberger, a Swiss national, and Galerie Nefer AG, a Swiss company owned by her, from Peter Smith J [2006] IL Pr 164.
LORD BROWN OF EATON-UNDER-HEYWOOD said that the claimants had begun proceedings against the defendants by claim form issued out of the High Court on 16 December 2004. Due to errors by the court staff and the Swiss authorities, the English language claim form had not been served on the second and third defendants (“the defendants”), though on 19 January 2005 a German translation and particulars of claim had been. On 3 February 2005 the defendants had issued proceedings against the claimants in Switzerland claiming negative declaratory relief in respect of the same facts. Under Swiss law, proceedings were “definitively pending” as soon as issued. On 19 August 2005 Peter Smith J, on the claimants’ application, had dispensed with service of the English language claim form pursuant to CPR r 6.9 and declared that the High Court had become seised of the proceedings on 19 January 2005. The question was whether in the light of the Swiss proceedings the English court now had to decline jurisdiction over the English proceedings and order a stay. That depended on which court had first been seised of proceedings within the meaning of art 21 of the Lugano Convention. It was arguable that the court could simply have ordered under CPR r 3.10(b) that the defendants were to be regarded as having been properly served. As to r 6.9, contrary to the view of the Court of Appeal there had been no “retrospective validation”: the judge had not declared valid and effective service that had previously been ineffective but held the previous service to have been valid. In any event, the question of seisin being one for the national court it had power to make an order effective retrospectively to validate what would otherwise have been an invalid form of service. The power was one to be exercised sparingly and only in the most exceptional circumstances where it would have the effect of altering the priority of seisin, but the present circumstances were exceptional. The defendants had suffered no prejudice. The service effected on 19 January 2005 should be declared valid and effective.
LORD BINGHAM and LORD RODGER agreed with Lord Brown.
BARONESS HALE, agreeing with Lord Brown and Lord Mance, said that in her view the English court was seised of proceedings for the purpose of the Convention when the claim form was issued or the court first made an order against the defendant in connection with them, whichever was the earlier.
LORD MANCE said that he would, so far as it might be necessary in order to resolve the appeal, adopt a general test of issue as the relevant date for seisin under art 21. The English court had been definitively seised of the whole proceedings from the date either of issue or of the freezing order.
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