JUDGMENT-1:
MANCE LJ (giving the first judgment at the invitation of Thorpe LJ).
[1] This is an appeal against the order of Tomlinson J dated 21 March
2003 ([2003] EWHC 550 (Comm), [2003] All ER (D) 334 (Mar)),
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 art 21 of the Brussels Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters 1968 (as
set out in Sch 1 to the Civil Jurisdiction and Judgments Act 1982), since
the relevant events occurred at the end of 2001. Council Regulation
(EC) 44/2001 (on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters) (OJ 2001 L12 p 1), which
largely supersedes the Brussels Convention, only came into force on 1
March 2002. Its terms would provide a simpler answer to the present
issue (cf art 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 Court of Justice of the European Communities' decisions
in Gubisch Maschinenfabrik KG v Palumbo Case 144/86 [1987] ECR 4861,
The Maciej Rataj, Tatry (cargo owners) v Maciej Rataj (owners) Case
C-406/92 [1995] All ER (EC) 229 and, most recently, Erich Gasser GmbH
v Misat Srl Case C-116/02 [2004] 1 Lloyd's Rep 222, 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 7 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, 24 December and 23
November 2001. However, on 8 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 Ts. 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 8 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 28 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
art 134(1) on 19 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 31 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 17 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 United
States of America, where he resides.
[6] The claimant's case is however that the English proceedings have
priority under art 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 [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 art 21 as against any defendant as and when he was served, ie
on respectively, 24 December and 23 November ….
[8] At the heart of the issue in this case lies another decision of the 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 ("Anhangigkeit") that is decisive or the moment at which-by service
of that document on the defendant-the proceedings have become fully
instituted ("Rechtshangigkeit")?'
Advocate General Mancini suggested, as a relatively clear-cut test for
the purpose of art 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 (at 2408):
'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. ..
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 Dresser case, the Court of Appeal considered what that meant
in the context of English procedure. Bingham LJ, giving the leading
judgment, pointed out ([1992] 2 All ER 450 at 460, [1992] QB 502 at
514-515):
'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 arts 21 to 23 of the convention are now part of English
law and s 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. 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 ([1992] 2 All ER 450 at 469,
[1992] QB 502 at 524). I underlined these passages in a judgment given
at first instance in Grupo Torras SA and Torras Hostench London Ltd v
Sheikh Fahad Mohammed Al-Sabah [1995] 1 Lloyd's Rep 374 at 412-415.
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 the Dresser case 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 ([1992] 2 All ER 450 at 467, [1992] QB
502 at 522) is also of interest:
'Although (as recognised in Zelger v Salnitri [1984] ECR 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 ([1992] 2 All ER 450 at 467-468, [1992]
QB 502 at 523):
'... 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 definitely 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 and (7) the defendant has not become subject to the jurisdiction of
the court.
…. 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" (ie 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" (ie 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' (ie 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.'
…[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 19 November 2001, at latest. The Greek
proceedings thus had priority under art 21.
[14] The appellant placed great weight before Tomlinson J (as before us)
on Council Regulation (EC) 1348/2000 (on the service in the Member
States of judicial and extrajudicial documents in civil or commercial
matters) (OJ 2000 L160 p 37). This entered into force on 31 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 art
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.'
[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 Ch 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.'
[16] The judge treated arts 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] IP & T 603, [2000] 1 WLR 1741 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).
...
[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 art 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 art 21 of the Brussels
Convention. … In fact, Professor Antapassis made clear that he was
proffering 19 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 Brussels Convention. It is held that the
interpretation of the terms of Art. 21 should be made independently ie
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 ie the internal law of
each Contracting State will determine the point when proceedings are
commenced and the litigation is pending (eg 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 (ie the date of the
service of the writ on Andreas Ts.) and 24.12.2001 (ie the date of the
service of the writ on George Ts.). The litigation action before the Multi-
member Court of First Instance of Piraeus is finalized on the 19.11.2001
(ie the date of the service of the writ on all the defendants). Therefore the
English Court (ie 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 (ie 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.'
[19] It is of interest that Professor Antapassis suggests that art 21 must
be given 'an independent community meaning' (a thought not too distant
from that expressed in the Dresser case), and that (in that context
apparently) he also prefers the view that both issue and service must be
required. ….
[20] Professor Antapassis says that, as a matter of Greek domestic law,
the effect of art 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 21 June 2002, as well
as para 7.B of his statement dated 19 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 art 21 of the Brussels Convention, definitively pending
from 8 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 the Dresser case, 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 SA and Torras Hostench London Ltd v Sheikh
Fahad Mohammed Al-Sabah [1996] 1 Lloyd's Rep 7 at 24 and in Molins
plc v GD SpA [2000] IP & T 603 at 614-615, [2000] 1 WLR 1741 at 1753
(paras 37-39).
[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 11 July 2002 and Professor Antapassis in a witness
statement dated 19 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 art 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 [ie objection] is dismissed by the
court owing to the non-operation of the preconditions of article 159 para.
3 [ie 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
art 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 4 November
2002: see appeal bundle, tab 20, p 156 (foot).
…
It is also relevant to look at Professor Antapassis's response in para 6 of
his statement of 19 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 Ta. has been served in London is neither
erroneous nor fictitious ... Mr Ta. 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 art 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 art 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 art 134 are subject to art 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 [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 [22], above) is generally
correct and relevant under art 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 art 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's case and the Court of Appeal in the Dresser case
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 art 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 [2000] IP & T 603 at
614-615, [2000] 1 WLR 1741 at 1753 (paras 37-39). However, I would
not distinguish (and I do not think that this court did on the facts in the
Molins case itself distinguish) between void and voidable proceedings
in the way which Judge Diamond QC in a previous case cited in para
38 in the Molins case 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 [18]-[21], above, the Greek
proceedings could not on any view be regarded as pending under art 21
prior to 19 November 2001.
[27] The next question is whether Council Regulation (EC) 1348/2000 has
any bearing on the question when the proceedings became definitively
pending for the purpose of art 21 of the Brussels Convention. Greece
gave notice under art 23 that it would not be derogating from art 9(1)
and (2) of the regulation. The claimant's case is that, since England
was the member state addressed by the documentation delivered to the
Public Prosecutor under art 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, ie 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 art 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 art 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 art 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 art 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 none
the less 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, ie 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 art 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
art 134(1) speaks of service on the Public Prosecutor, and while Greek
internal law may by itself treat this as important for certain purposes,
art 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 art 23 of the regulation, Greece has
designated the Public Prosecutor's offices as the relevant 'transmitting
agency' under art 4.
[31] The final question, whether the regulation is relevant in the present
context of litispendency under art 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, art IV of which
contains provisions relating to the manner, even though not the date, of
service. This court has thus held in the Molins case 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 ([2000] IP & T 603 at 615-616,
[2000] 1 WLR 1741 at 1754 (para 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. In so far as Italian law differs it
is irrelevant. The purpose of the Brussels 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 Brussels
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 v Magnol Shipping Co Inc, The Sky One
[1988] 1 Lloyd's Rep 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 art
21 need not necessarily depend on service-after all, the European Court
in Zelger's case 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
(arts 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. …
[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 para 7.A of his statement, he analyses
the position on the basis of his preferred position that litispendency under
art 21 has an 'independent community meaning', whereas in para 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's
case [1984] ECR 2397 at 2408 (para 15) and the Grupo Torras case
[1996] 1 Lloyd's Rep 7 at 20.
[35] The relevance of the regulation to any conception of definitive
pendency for the purposes of art 21 of the convention is in my view
also confirmed by art 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 Ta.] or to his residence
by another method specified by this Regulation'. Neither condition was
ever satisfied in this case. Greece has given notice under art 23 in terms
indicating that its courts may (though not must) give judgment in a case
where all the conditions specified in art 19(2) are satisfied. But under
the conditions in art 19(1) judgment can only be given in the absence of
a certificate of service or delivery under art 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 art 19
from giving any judgment against the English claimant. The effect of
the provisions of art 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 art 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 art 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 30 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 20 June, but were not served on the defendant abroad until 20 July.
What is involved in 'service' under Greek law where documents have to
be transmitted abroad appears in the special regime of art 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 art 134 and so for the purposes of arts 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 art
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 art 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 31 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] …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
art 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 art 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, pp 213-214) and Professor Antapassis (in his opinion at appeal
bundle, p 206 and in paras 6 and 7.B of his statement dated 19 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 art 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
31 December 2001 (at the very earliest) that they can be said to have
become definitively pending. The reasoning in Molins plc v GD SpA
[2000] IP & T 603 at 614-615, [2000] 1 WLR 1741 at 1753 (paras 37-39)
considered at [26], above, is in my view also generally supportive.
[41] On this ground also, therefore, as well as on the basis mentioned
in [33]-[38] above, I would allow the appeal and restore the English
proceedings.
JUDGMENTBY-2: EVANS-LOMBE J.
JUDGMENT-2:
EVANS-LOMBE J.
[42] I agree with the judgments of Mance and Thorpe LJJ.
JUDGMENTBY-3: THORPE LJ.
JUDGMENT-3:
THORPE LJ.
[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
art 21 of the Brussels Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters 1968 (as set out in Sch 1 to
the Civil Jurisdiction and Judgments Act 1982) imports the provisions of
art 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) 1348/2000 (on
the service in the Member States of judicial and extrajudicial documents
in civil or commercial matters) (OJ 2000 L160 p 37), having effect from
31 May 2001. Under arts 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 art IV of the Protocol
and of the service regulations by submitting that Mr Ta. 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 Ta. to be
domiciled and/or resident in London. That belief and consequent election
engages art 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 art 21. At least the more modern instruments on jurisdiction
generally (Council Regulation (EC) 44/2001 (on jurisdiction and the
recognition and enforcement of judgments in civil and commercial
matters) (OJ 2001 L12 p 1)) and in matrimonial matters and in matters of
parental responsibility (Council Regulation (EC) No 1347/2000 (OJ 2000
L160 p 19)) not only establish a lis pendens rule in art II but define when
a court shall be deemed to be seized for the purposes.
DISPOSITION:
Appeal allowed.