MORRITT L.J.:
[1] On 21 July 1995 Sir Michael Davies made orders that the writ of
summons herein provided by way of notification to the T. defendants
(defined as being N.T, the first defendant, V. Ltd and B. (Ireland) Ltd)
on 21 April 1995 be deemed to have been duly served upon the said
defendants as at the date of notification; and that the T. defendants be
joined as parties herein and be at liberty to participate fully in this action.
[2] This is an appeal from that order of the plaintiff, Mr F., brought with
the leave of Waite L.J., the application of the T. defendants to set aside
that leave having been dismissed by this court on 24 June 1996. The
T. defendants, by which I mean those before the court on this appeal,
namely the first and second defendants and V. Ltd do not seek to uphold
that part of the order which deemed service to have been effected on
21 April 1995. But they do submit that the judge had jurisdiction to join
them as parties to the action in the way he did and correctly exercised his
discretion in that respect. Mr F. submits otherwise. To put the submissions
of counsel into context it is necessary to elaborate on the facts in a little
detail.
[3] Mr F. is a solicitor practising in Eire in the style of... & Co. He has
acted for the T. defendants and other companies connected with them
in connection with litigation in Eire, England and Bulgaria, generically
described as "the B. Litigation". He claims to be entitled to PoundsSterling
1.2m for fees pursuant to agreements dated 28 October 1992 and 23
June 1994. It seems that the T. defendants accept that he is entitled
thereunder to 2 per cent of sums recovered but deny his entitlement to
the full 8 per cent he claims.
[4] The T. defendants and their other companies were represented in the
proceedings in England by an English firm of solicitors, O. On 10 April
1995 there was a compromise of the B. Litigation made orally and then,
on 18 April 1995, confirmed in writing on terms which involved the receipt
by O. of US $2.13m on 21 April 1995 of which US $1m was to be for the
account of V. Ltd, subject to the filing of a notice of discontinuance in the
proceedings in Ireland by T. Group International Ltd.
[5] Mr F. wished to restrain O. paying the money to the T. defendants for
he thought that there was a risk that the fees due to him would not be
paid. Accordingly on 21 April 1995 he applied to Clarke J. for injunctions.
The writ named as defendants N. and Z. T., 26 companies named in the
schedule alleged to be owned or controlled by them, including V. Ltd and
B. (Ireland) Ltd, and O. and sought an order against all four defendants
to preserve the lien over the sum of US $1m to which Mr F. claimed to
be entitled. At the hearing before Clarke J. the T.s were not present or
represented, but counsel represented V. Ltd, one of the 26 companies and
O. appeared in person by a partner. Clarke J. made an order on 28 April
1995 against O. only prohibiting them from dealing with the sum of US
$1m held for the first three defendants or their order. The undertakings
to the court given by Mr F. included undertakings to serve the writ and
statement of claim on O. and to send copies "by way of notification" to the
T.s and their then solicitors, in each case, at an address in Dublin.
[6] On 24 April 1995 Mr F. issued a summons for leave to serve V. Ltd,
a company incorporated in Liechtenstein, out of the jurisdiction, for the
continuance of the order against O. and an equivalent order against V.
Ltd. On 26 April 1995 acknowledgments of service indicating an intention
to defend the proceedings were filed on behalf of the T. defendants and
Mr F.'s solicitors were so informed. But by then Mr F. was beginning to
have second thoughts about the wisdom of suing in England. On 27 April
1995 he applied in the Irish Action and in other Irish proceedings for
an order against the T.s and their companies designed to preserve the
settlement monies for satisfaction of his claim.
[7] On 28 April 1995 the injunction granted by Clarke J. against O. was
extended with the written consent of the English solicitors for the T.
defendants to a date to be fixed. On 2 May 1995 Mr F. issued a summons
seeking an order that the filing of the acknowledgments of service on
behalf of the T. defendants should not be deemed to be service of the
writ pursuant to R.S.C., Ord. 10, r. 1(5) and that such acknowledgments
be set aside. On 9 May 1995 the T. defendants served their defence
denying liability for Mr F.'s costs or that there had been any settlement.
The defence asserted that Mr F.'s entitlement to costs depended on the
true construction and effect of two contingency fee agreements made in
October 1992 and June 1994 and that he had delivered bills and been
paid for all that to which he was entitled.
[8] On 12 May 1995 Geoghegan J. made an order on Mr F.'s application in
Ireland that he should have a charge on the sums received by N. T. and
his associates in the compromise of the B. Proceedings and restraining
the T. defendants from diminishing the fund held by O. to less than IR
PoundsSterling 410,000. On 27 June 1995 Mr F. served his defence to the
counterclaim of the T. defendants which included an allegation that the
writ had not been properly served.
[9] On 7 July 1995 the T. defendants issued a summons for leave to
intervene and for an order that they be joined as defendants under
R.S.C., Ord. 15, r. 6(2)(b). This and the summonses issued by Mr F. on
24 April and 2 May (together with the application to amend the latter
to which I shall refer later) were the summonses which came before Sir
Michael Davies on 20 and 21 July 1995. But before then a number of
events occurred.
[10] On 19 July 1995 the T. defendants issued a writ, known as 701, in
England indorsed with a statement of claim against Mr F. alone seeking
declarations as to the entitlement of Mr F. to costs at 2 per cent of the
sums recovered only. That writ was personally served on Mr F. on the
same day in Dublin. On the same day Mr F. issued proceedings in Ireland
against the T. defendants, but not O., substantially identical to the relief
claimed against them in his action in England.
[11] On the following day 20 July 1995 at about 10.55 a.m. Mr F. sought
to serve the Irish solicitors mentioned in the order of Clarke J., with the
Irish proceedings but he, through his solicitors, was told that they no
longer had instructions to accept service on behalf of the T. defendants.
But on the same day and before the order of Sir Michael Davies was
pronounced the writ in those proceedings was validly served on B.
(Ireland) Ltd at its registered office. Also on 20 July the T. defendants
issued a further writ, called 705, in England indorsed with a statement of
claim against Mr F. and O. in substantially the same terms as that issued
on 19 July against Mr F. alone and served it personally on a partner in O.
between 11.40 and 11.45 a.m. on the same day (service was not effected
on Mr F. until 3 October 1995).
[12] The hearing before Sir Michael Davies began on 20 July and was
adjourned part heard at the end of that day. By his order, though
pronounced late on 20 July dated 21 July 1995, he deemed the sending
of copies of the writ and statement of claim to the T. defendants by way
of notification on 21 April to have been good service and he joined the T.
defendants, with the more limited meaning I have already referred to, as
additional parties under R.S.C., Ord. 15, r. 6(2). In addition he continued
the order against O. so as to protect the fund up to US $640,000 and
gave directions for the further conduct of the action. His reasoning was
that at the relevant time, namely 3.44 p.m. on 20 July 1995, Mr F. had
not validly begun proceedings against the T. defendants in another
Contracting State, i.e. Ireland, because the solicitors for the T. defendants
did not then have instructions to accept service on them. In consequence
he held that Articles 21 and 22 E.C. Judgments Convention (Brussels)
1968 did not apply. He recognised that the court first seised of the
matter was that in which the proceedings were first begun effectively. He
continued:
I am quite satisfied that the justice of the case and what I may call the
European approach and the approach of our Court of Appeal is such that
I should take the appropriate steps to regularise the position. It seems
to me that it matters not how formally that is done. I am prepared to
hold that there has been deemed service and that further service may be
dispensed with; alternatively, if that is an order which it might hereafter
be held could not or should not be held to be valid, I should make an
order giving leave to the defendants to take part in every respect as
defendants in this action and to appear at all hearings. That order, I think,
would most appropriately be made under R.S.C., Ord. 15, r. 6(2)(b).
Finally he rejected the submission of Mr F. that he should stay the
proceedings in England on the grounds of forum non conveniens.
[13] On 28 July 1995 Kinlen J., sitting in the High Court in Ireland,
ordered that the service on the solicitors for the T. defendants on 20
July of the Irish writ in Action 1995 No. 5654P be deemed good and
sufficient service on the T. defendants. It is common ground that he made
that order under Ord. 9, r. 15 of the Rules of the Irish High Court which
provides that
In any case, the Court may, upon just grounds, declare the service
actually effected sufficient.
[14] On 18 August 1995 judgment in default of appearance was entered
in Ireland against the T. defendants in respect of the writ in Action 1995
No. 5654P. On 24 January 1996 the T. defendants' application for that
judgment to be set aside came before Costello J. He refused to set aside
the order of Kinlen J. made on 28 July but set aside the judgment in
default of appearance entered on 18 August 1995 on condition that the
T. defendants paid to Mr F. IR PoundsSterling100,000 within a period of
three weeks which was subsequently extended. On 23 February 1996 the
judgment in default was set aside, the condition as to payment having
been satisfied, and the matter was adjourned for further argument on
the contentions of the T. defendants that the court in Ireland ought to
decline jurisdiction or in its discretion to stay all further proceedings
under Articles 21 and 22 E.C. Judgments Convention. On 28 February
1996 the matter was argued further before Costello J. who concluded
that although the cause of action in the action commenced in England
by Mr F. on 21 April 1995 was the same as that commenced by Mr F. in
Ireland by the writ in Action 1995 No. 5654P the parties were not the
same as O. were defendants to the former but not the latter. He decided
that in consequence Article 21 did not apply but that Article 22 did apply
for the court in England had been first seised of the matter by, as Sir
Michael Davies had found, service of the writ in April 1995 "by way of
notification". Accordingly he considered that the court in Ireland should,
in the exercise of its discretion, stay the proceedings in that jurisdiction.
However he gave liberty to apply to remove the stay if the Court of
Appeal in England reversed the decision of Sir Michael Davies. The T.
defendants have served notice of appeal against this order and the appeal
is still pending.
[15] The rival arguments ranged over a wide field. For Mr F. it was
submitted that the judge had no jurisdiction to order the joinder of the
T. defendants under R.S.C., Ord. 15, r. 6(2)(b) for there was no dispute
between Mr F. and O. and in any event it was neither necessary nor just
nor convenient that the T. defendants should be joined as parties. Then it
was contended that the judge exercised his discretion improperly because
he failed to consider the correct tests imposed by R.S.C., Ord. 15, r. 6(2)
(b), he ignored the overwhelming connecting factors with Ireland and the
absence of such factors with England. Finally it was submitted that in view
of the fact that the Irish court was seised of the matter on 20 July 1995
by virtue of the service on that day of the writ in Action 1995 No. 5654P
on B. (Ireland) Ltd and the T. defendants as found by Kinlen J. on 28 July
1995 the courts in Ireland were first seised of the matter within Article 21
of the E.C. Judgments Convention with the consequence that the English
court was bund to decline jurisdiction.
[16] By contrast the case for the T. defendants was that the judge had
had jurisdiction under R.S.C., Ord. 15, r. 6(2)(b) to join the T. defendants
and had correctly exercised his discretion to do so. In particular they
submitted that the nature of the solicitor's lien claimed is such that the
beneficial owners of the fund are necessary and proper parties to the
action against O. They contended that on 20-21 July 1995 there were
no Irish proceedings pending against the T. defendants for the order of
Kinlen J. showed that what had been done was not sufficient to constitute
good service. In any event they submitted the courts of both England and
Ireland had jurisdiction over the T. defendants in England under Article
6(i)in relation to the proceedings against O. and in Ireland as that was
where at least one of them was domiciled. It was contended that given
that dual jurisdiction questions of forum non conveniens did not enter into
the matter as the question was to be decided under the E.C. Judgments
Convention but, in any event, as a matter of convenience the overall
dispute should not be split between the courts of England and Ireland.
[17] In reply Mr F. submitted that the jurisdiction under Article 6(1) was
narrower than the question of whether the person was a necessary or
proper party and that the judgment of Kinlen J. merely declared what the
position had been so that no question of relation back, which he accepted
was not possible, arose.
[18] Faced with this bewildering array of facts and submissions I think
that it is necessary to cut away those which in the end proved to be
irrelevant. First, the actions known as Actions 701 and 705 commenced
by the T. defendants in England were not relied on by either side. In my
view they are irrelevant for they can add nothing to the position as it
then stood either in England by virtue of the action started on 21 April
or Ireland by virtue of the writ in Action 1995 No. 5654P served on B.
(Ireland) Ltd on 20 July. Secondly I do not think that it matters whether
or not the order of Kinlen J. was declaratory as to the effect of the service
on the Irish solicitors for the T. defendants for no grounds has been shown
for disputing that those proceedings were duly served on B. (Ireland) Ltd
before the order of Sir Michael Davies.
[19] In my view the propriety or otherwise of the order of Sir Michael
Davies depends on matters which were not raised before him because
in the fast moving circumstances as they then were the fact of the
incontestable service of the proceedings in Ireland on B. (Ireland) Ltd on
20 July 1995 and its significance in relation to the provisions of the E.G.
Judgments Convention was not drawn to his attention.
[20] So far as relevant to this case the E.C. Judgments Convention,
enacted as part of English Law by Civil Jurisdiction and Judgments Act
1982, provides:
Article 6
A person domiciled in a Contracting state may also be sued:
1) where he is one of a number of defendants, in the courts for the place
where any one of them is domiciled:
Article 21
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. A court which would be required to
decline jurisdiction may stay its proceedings if the jurisdiction of the other
court is contested.
Article 22
Where related actions are brought in the courts of different Contracting
States, any court other than the court first seised may, while the actions
are pending at first instance, stay its proceedings.
A court other than the court first seised may also, on the application of
one of the parties, decline jurisdiction if the law of that court permits the
consolidation of related actions and the court first seised has jurisdiction
over both actions.
For the purpose of this Article, actions are deemed to be related where
they are so closely connected that it is expedient to hear and determine
them together to avoid the risk of irreconcilable judgments resulting from
separate proceedings.
[21] There is no doubt that the English court was first seised of the action
commenced by Mr F. on 21 April 1995 and served on O. but not on the
T. defendants. Second there is no doubt that the service of the Irish
proceedings on B. (Ireland) Ltd at its registered office on 20 July 1995
was sufficient for the Irish court to be first seised of those proceedings.
As the defendants on whom service of the respective proceedings had
been effected were not the same Article 21 could not apply. But if the
two actions were "related" within the meaning of that word in Article
22 then the English court was first seised and is not entitled to decline
jurisdiction or stay the action in England. In that event it could hardly
be disputed that the T. defendants were necessary parties to the action
in England under R.S.C., Ord. 15, r. 6(2)(b) as the beneficial owners of
the fund over which Mr F. claimed to be entitled to a solicitor's lien. Such
a claim is to a right described in Snell's Equity as "an equitable lien on
property recovered or preserved through his instrumentality; this gives
him a charge upon the property which he can activate by taking steps to
realise the property by sale".
[22] If on the other hand they were not so related then the Irish court
was first seised of the proceedings involving B. (Ireland) Ltd and the
court in England might and in my view should decline jurisdiction and stay
the proceedings here for the overwhelming connection with Ireland of
all parties served and unserved cannot be disputed. In that event there
could be no legitimate purpose in joining the T. defendants to the English
action; either it would become related to the Irish action within Article 22
and have to be stayed as a matter of discretion or it would then fall within
Article 21 thereby obliging the English court to decline jurisdiction.
[23] I have come to the conclusion that the actions were not related
before the order of Sir Michael Davies took effect. The consequence,
in my view, is that the order for joinder was wrong in principle for it
necessarily gave rise to a relationship between the actions and the
consequential obligation or power of the court in England under Articles
21 or 22 to decline jurisdiction or to stay the proceedings here.
[24] In my view the question has to be answered immediately before
the order of Sir Michael Davies. At that time though the proceedings
in England had been served on O. it was clear that there was no
dispute between Mr F. and O.. Although they had not originally been
brought under section 25 of the Civil Jurisdiction and Judgments Act
1982there was nothing to prevent them from being treated thenceforth as
proceedings for interim relief in the absence of substantive proceedings
which that section permits. Whatever the original intention of Mr F. he had
made plain to the T. defendants by his solicitors' letter dated 19 July that
he wished the dispute to be determined in Ireland and to that end would
apply to Sir Michael Davies for leave to amend his summons issued on 2
May to seek an order staying all further proceedings in England pending
the outcome of the proceedings commenced that day in Ireland. Thus
there was no danger of conflicting decisions in England and Ireland for
Mr F. did not intend to pursue his proceedings in England and there was
nothing and no defendant to compel him do so. Whether or not in those
circumstances it can be said that the court in England was then seised of
the proceedings at all it is in my view clear that those proceedings were
not then related to the action in Ireland which had been served on B.
(Ireland) Ltd.
[25] But there can be no doubt that on 20 July, though Sir Michael Davies
was not so informed, the court in Ireland was seised of the action there
which had been duly served on B.Ltd. Then to join the T. defendants as
defendants to the action in England could not have been a proper exercise
of the discretion under R.S.C., Ord. 15, r. 6(2)(b) for the consequence
must have been that the action in England would then become related
pursuant to Article 22 even if it did not also come within Article 21 on
subsequent service on the T. defendants.
[26] In these circumstances I think that the judge was wrong for,
unbeknown to him, the facts as they then existed could not justify
the order which he made. In my view the appeal should be allowed
and, subject to any further argument which may be required the other
consequential orders sought by Mr F. should be made.
BROOKE L.J.:
[27] On 20 July 1995 there were three applications before the judge.
The first was an application by the plaintiff, which was not opposed by
the fourth defendants, to continue the injunction against the fourth
defendants until trial or further order. The second was an application by
the plaintiff to set aside the acknowledgments of service filed on behalf of
the first three defendants on 2 May. The third was an application by the
first defendant, B Ltd and V Ltd under R.S.C., Ord. 15, r. 6(2)(b) or under
Ord., 2 r. 1 that they should have leave to take part as defendants and/or
intervene and/or that they should be joined as defendants; or for an order
and direction that they should be at liberty to appear at the trial and all
interlocutory applications and to take such part as the court should direct;
or for an order that the statement of claim be deemed served upon them.
[28] The first two of these applications were due to be heard by a judge
on 5 July. The defendants changed their solicitors just before that date
and succeeded in arranging for the hearing to be adjourned and for their
application (which was originally issued on 5 July in the name of V Ltd
alone) to be heard at the same time as the others. However, they filed
no evidence at all in support of their application until shortly before the
hearing, at which they relied on two affidavits by their Irish solicitor,
sworn on 18 and 20 July, and two affidavits by their English solicitor,
both sworn on 20 July. There was also exhibited before the judge a letter
from the plaintiffs' solicitors to these defendants' solicitors dated 19 July
notifying them of the proceedings issued in the Irish High Court that
day and telling them that at the hearing of the summons counsel was
instructed to seek leave of the court to amend the plaintiff's summons of
2 May to seek an order that the current proceedings before the English
court be stayed generally pending the outcome of the proceedings now
issued in the Irish High Court.
[29] Inevitably the evidence about what was happening in Ireland, and
the effect of it, was in a fairly confused state when the matter was before
the judge. He saw an affidavit, faxed to the court from Dublin that day
(so that the plaintiff did not have a chance to respond to it) to the effect
that the defendants' Irish solicitors had refused to accept service of the
new writ, and he therefore held, on the material before him which was
not disputed, that service had not taken place in Ireland. What he did not
know was that B.Ltd had been served as its registered office that day. The
possible significance of the service of these proceedings on B.Ltd was not
properly canvassed in argument before us before or during the hearing,
and we therefore invited counsel to make further written submissions to
us on this issue before we handed down our judgments. I will return to
this question in due course.
[30] In my judgment the judge was wrong to believe that he had any
power, whether under R.S.C., Ord. 2, r. 1 or otherwise, to make an order
that the three defendants before him should be deemed to have been
served with the English proceedings, whether as at the date they were
notified of the writ pursuant to Clarke J.'s order or at all. The short facts
of the matter are that they were not served and that the plaintiff did not
intend to serve them. There was therefore no irregularity to be cured by
means of the powers afforded to the court under R.S.C., Ord. 2, r. 1, and
Mr Aikens only faintly supported the judge's view that he could make an
order under that rule deeming the proceedings to have been served when
they had intentionally not been served. I therefore have no difficulty in
deciding that this part of the judge's order should be set aside.
[31] The judge, however, also made an order under R.S.C., Ord. 15, r.
6(2)(b). He did not recite the provisions of that rule in his ex tempore
judgment, or show precisely what he took into account when he exercised
his discretion under that rule to direct that these defendants be made
parties to the proceedings notwithstanding that the plaintiff did not wish
to serve them.
[32] It is therefore necessary to analyse the situation before the judge
quite carefully. There were proceedings in England, served only on the
fourth defendants, in which the plaintiff asserted an equitable lien for his
outstanding fees on the fund held by the fourth defendants. Although the
statement of claim included a money claim against the fourth defendants
in the event that that firm paid the fund away to any or all of the other
defendants with notice of the plaintiff's assertion of a lien, I accept that
this was an alternative, contingency, claim which no longer needed to
be pursued once it was clear that Clarke J.'s order had frozen the fund
in the fourth defendants' hands before it was dissipated. Although the
other three defendants were named on the writ, the plaintiff had made
clear to the judge that he did not intend to serve them and that he wished
the real issue between himself and those defendants to be heard and
determined in Ireland. I will identify that issue in due course, but it is
instructive to note at this juncture that on 12 May 1995 in the High Court
in Ireland Geoghegan J. said of it:
I find it hard to believe that the plaintiff's entitlement to costs, in Irish
litigation, and the amount of such costs, will in fact be pursued in the
English court.
[33]The next element in the situation, although the judge was not aware
of it, was that of the three defendants before him, one of them, B.Ltd,
had in fact been served with proceedings between the same parties (apart
from O., the fourth defendant in the English proceedings) in the High
Court in Ireland. In his supplementary written submission Mr Aikens has
made it clear that he does not accept that B.Ltd was validly served on
20 July 1995, as opposed to having been "deemed served" on that date
under the order of Kinlen J. dated 28 July 1995, but he did not submit
that service on B.Ltd at its registered office was not good service by the
law of Ireland, and in my judgment the mere fact that Kinlen J. later
made an umbrella order declaring this writ, too, to have been validly
served cannot possibly detract from the fact that it had indeed been
validly served eight days earlier.
[34] In the general endorsement on his Irish writ, which was issued at
3.45 p.m. on 19 July, the plaintiff claimed a liquidated sum in excess of
PoundsSterling1.2 million as costs and expenses; alternatively the same
sum as damages for breach of contract or a quantum meruit and an order
directing the defendants to procure the transfer of the fund held by O. to
the jurisdiction of the court; and on order restraining the defendants from
diminishing that fund below a certain level.
[35] Unless, therefore, these defendants can show that the English court
was first seised of the real issue between them and the plaintiff, the
service of these proceedings on B.Ltd would have made the Irish court
first seised of this issue, so far as B.Ltd was concerned.
[36] It is perhaps helpful to mention at this stage that Mr Siberry drew
our attention to a large number of matters which showed that if issues of
forum conveniens were relevant, Ireland would be the most appropriate
forum for litigating this dispute. The plaintiff is an Irish solicitor who is
qualified and practises law in Ireland, his country of domicile. He had
rendered substantially all the services for which he claims remuneration in
Ireland. His principal client, the first defendant, lives and has substantial
business interests in Ireland (although he now disputes whether he is
domiciled there, without giving any affidavit evidence on the matter), and
a substantial number of the T. companies listed as third defendants are
domiciled in Ireland. Irish law governs the fee agreements on which the
plaintiff relies and Ireland was the place of performance of the plaintiff's
contractual services. It is also the only country where a taxation of the
plaintiff's fees could conveniently be carried out.
[37]Although Mr Aikens does not accept all these propositions, it
appears to me that there would be no possible grounds for asserting that
Ireland was not an appropriate forum for this dispute pursuant to the
provisions of the E.C. Judgments Convention. Under Article 2, it is the
appropriate forum for those domiciled there, and for those not domiciled
in a Contracting State, jurisdictional questions would be determined
by the High Court in Ireland, and there is no evidence that in these
circumstances the High Court there would hold that it would not have
jurisdiction if it was otherwise the court first seised of the issue.
[38] So far as service on the other defendants in Ireland is concerned, no
expert evidence on Irish law and practice was placed before us and we
were not shown a copy of the plaintiff's Irish solicitor's affidavit on the
basis of which Kinlen J. made his order on 28 July. Since the plaintiff does
not appear to have satisfied any of the requirements of Ord. 9, rr. 1-3
of the Irish Rules of the Supreme Court. I am of the view that the other
defendants would not have been definitively joined as parties to the Irish
proceedings until Kinlen J. made his order on 28 July declaring the service
actually affected sufficient pursuant to Ord. 9, r. 15.
[39]I turn now to Ord. 15, r. 6(2)(b)of the English rules. Because the
plaintiff's counsel had told the judge that his client wanted to have the
real issue between him and these defendants determined in Ireland,
and wished to have a stay placed on the English proceedings (with no
objection from the fourth defendants) pending the resolution of that
issue, and because the judge had been told that a writ had been issued in
Ireland and the plaintiff was in the business of having it served (whether
or not his first effort was entirely successful) I am of the view that
recourse to R.S.C., Ord. 15, r. 6(2)(b)(i) would have been inappropriate.
It was not necessary to join these defendants (against the plaintiff's
wishes) because all the matters in dispute in the cause or matter were
going to be effectively and completely determined and adjudicated upon
in Ireland.
[40] On the other hand, everything else being equal and if the same
issue was not before the courts elsewhere, this would on the face of
it be a case in which the facilities of R.S.C., Ord. 15, r. 6(b)(ii) could
properly be called in aid by these defendants in order to ensure that the
English court could conveniently determine what I have called the real
issue between them and the plaintiff at the same time as it determined
at the trial whether the plaintiff was entitled to the benefit of a lien as
against the fourth defendants. It should be observed that although these
defendants disputed the claim to a lien in the defence they purported to
serve in the English proceedings they have never asserted any positive
case to the effect that the plaintiff is not as a matter of English law
entitled to assert a lien, supposing he can show that any unpaid costs and
expenses are due to him and that the fund held by the fourth defendants
represents the fruits of his professional services on his clients' behalf.
In his supplemental written submission Mr Aikens merely argues that
because no lien can exist unless fees are indeed outstanding to the
plaintiff, this court would have to make findings as to whether anything
was in fact due to him before concluding that any lien applied.
[41]What then was the real issue between the parties? It is helpfully
identified in the draft defence to which I have referred. It relates to the
question whether there was, under Irish law, an enforceable agreement
between the plaintiff and these defendants as to his entitlement to
costs and expenses, the terms of that agreement (if established), and
the amount payable to him either pursuant to that agreement or on a
quantum meruit basis. The only remaining issue is whether, if the plaintiff
is indeed owed anything by these defendants, he is entitled to assert
an equitable lien on the fund held by O., but as I have said there is no
dispute about this as a proposition of English law. The plaintiff would
not, of course, need to assert a lien if he could achieve the same result
by straightforward Mareva relief or an injunction granted in proceedings
brought pursuant to section 25 of the Civil Jurisdiction and Judgments
Act 1982. In other words, the technical issue whether a lien exists, which
the fourth defendants do not appear to dispute, is indeed a very technical
issue compared with what I have described as the real issue between the
plaintiff and these defendants.
[42] I should note at this stage that the only evidence placed before the
court in any of the four very late affidavits adduced by these defendants
which did anything other than explain what was going on in Ireland was
an assertion by their Irish solicitor that they were extremely apprehensive
that they could not expect the fourth defendants' firm to protect their
interests through the defence by it of a claim in which it was not involved
other than to the extent that that firm happened to hold a fund of
money which was the subject of a claim by the plaintiff against the other
defendants. Since the plaintiff had said in a letter from his solicitors that
he wished to have those proceedings stayed pending the outcome of the
newly commenced Irish proceedings on which he sought to have the real
issue determined, this should have put the defendants' apprehensions at
rest.
[43] Mr Aikens and Mr Briggs argued, however, at the oral hearing that
the English court was first seised of the proceedings which raised the real
issue, notwithstanding that the plaintiff had not served them and did not
wish to serve them with the proceedings in question. They observed that
this was an issue which the Court of Appeal had expressly left open in
Grupo Torras S.A. v. Al-Sabah, and that it had not been definitely decided
by the European Court of Justice in Case C-406/92, The Maciej Rataj.
They encouraged us in these circumstances to consider the reason given
by Mance J. at first instance in the Grupo Torras case and to conclude that
proceedings were definitively served on all the defendants to an action at
the time they were served on one of them.
[44]In my judgment, such a conclusion would run counter to the guidance
given by the European Court of Justice in the Maciej Rataj. There the
court focused on the question whether the parties to the second action
were also parties to the first action, and this is a matter to be determined
by the relevant national law. Under English national law, an unserved
defendant is not a party to an action in this sense. His rights are limited
to a right to serve a notice requiring a plaintiff to serve the proceedings
or to discontinue, and for my part I would accept the submission made
by counsel for the appellants in the Court of Appeal in the Grupo Torras
case: the answer to the question "when did the relevant lis between the
relevant parties become definitively pending?" will depend upon which
lis one is asking about. In the present case the lis between the plaintiff
and the defendants whom Mr Aikens and Mr Briggs represent would have
become definitively pending at the time their clients were served with the
English proceedings and not before.
[45] By way of completeness I should add that I do not accept Mr Aiken's
supplementary submission that even if, ex hypothesi, O. were the only
party joined to the English action and B.Ltd were the only party joined
to the Irish action the two actions were nevertheless at that stage (i.e.
before the judge made his order) related actions within the meaning
of Article 22 of the Convention. The plaintiff, who had the carriage of
both actions, wished the real issue to be determined in Ireland. The only
party served with the English action appeared to be content with the
course he proposed and there would not be the slightest risk of conflicting
judgments if his wishes were fulfilled. If the plaintiff does not pursue the
Irish proceedings timeously, then no doubt Mr Aiken's clients might be
well placed to have the interlocutory injunctions in England set aside, but
that is quite another matter.
[46] I accept that there may be situations in which the European court's
hope that fragmentation may be avoided through recourse to Article 22of
the Convention cannot be fulfilled in practice. This, in my judgment, was
not one of those cases.
[47] As I have said, the Irish court was, unknown to the judge, first
seised of proceedings raising what I have called the real issue between
the parties when B.Ltd was effectively served in Ireland before Sir Michael
Davies made his order. Article 21 of the Convention therefore came into
play so far as B.Ltd was concerned, and Mr Aikens did not suggest the
contrary.
[48] The Irish action then became one which was a related action within
the language of Article 22 of the Convention (being one so closely
connected that it is expedient to hear and determine them together
to avoid the risk of irreconcilable judgments resulting from separate
proceedings). This was therefore a consideration which the judge ought
to have taken into account (if he had known about the service on B.Ltd)
when deciding in the exercise of his discretion whether to join these
defendants to the English proceedings so that the real issue could be
determined in England.
[49] I agree so strongly with the views expressed by Geoghegan J. that I
am constrained to conclude that if the judge had known the true position
and had been given the same exposition of the effect of the Convention as
we have received in this court, he would not have exercised his discretion
in favour of joinder in the teeth of the provisions of Article 22 of the
Convention and in a context in which Ireland was obviously the most
appropriate forum to determine the real issue.
[50] I should add that although reference was made to two further writs
issued by these defendants in England these featured only faintly in Mr
Aiken's skeleton argument and not at all in his oral submissions and in the
circumstances I need not refer to them.
I would therefore allow this appeal.
LEGGATT L.J.:
[52] I agree that for the reasons given in the last four paragraphs of
the judgment of Morritt L.J. this appeal should be allowed, and the
consequent orders made for which the appellant contends.
Appeal allowed. Leave to appeal to the House of Lords refused.