Lord Justice Longmore:
1.The question which arises in this appeal is whether a Greek judgment,
published on 22nd October 2004 in favour of the appellants, should be
recognised by the English courts. Tomlinson J has held [2006] EWHC 414
(Comm) that it should not be so recognised, but granted permission to
appeal to this court.
2.The tangled history of the events leading up to this appeal is set out
with admirable clarity and succinctness in the first 34 paragraphs of the
judgment. For the purposes of determining the issues raised in this appeal
it can (with considerable oversimplification) be summarised as follows:-
(1) the claimant in 2001 Folio 1255, Mr Peter Tavoulareas, asserts
(and the defendants Messrs George and Andrew Tsavliris deny) that he
advanced money to them in relation to salvage services rendered to the
ATLAS PRIDE;
(2) these English proceedings were served in December 2001;
(3) a number of Tsavliris interests began Greek proceedings against
Mr Tavoulareas for a declaration that they were not so liable. Those
proceedings came to the notice of Mr Tavoulareas on 31st December 2001
in the course of interlocutory skirmishing in the English proceedings but
were not formally served on him;
(4) on 17th January 2003 Tomlinson J stayed the English proceedings
holding that the Greek court was the court first seised (the Greek
proceedings having been served on the Public Prosecutor before the
English proceedings were served on Messrs Tsavliris);
(5) on 5th February 2004 the Court of Appeal reversed this decision of
Tomlinson J, holding that the English courts were first seised since Messrs
Tsavliris had been served before the Greek proceedings came to the
notice of Mr Tavoulareas (and because Mr Tavoulareas had not, in any
event, been served with the Greek proceedings);
(6) in the course of September and October 2004 the Greek court
(without being informed by either party of the decisions of Tomlinson
J or the Court of Appeal) proceeded to hear the Greek proceedings in
the absence of Mr Tavoulareas and made a declaration that the Tsavliris
interests were under no liability to Mr Tavoulareas;
(7) meanwhile on 16th August 2004 Mr Tavoulareas issued a second set
of English proceedings (2004 Folio 675) against Alexander G Tsavliris and
Sons Maritime Company claiming against that company a larger sum than
that claimed in the earlier proceedings;
(8) the Tsavliris interests have now issued applications in both sets of
proceedings for a declaration that the Greek judgment published on 22nd
October 2004 be "recognised" pursuant to Article 33 of Council Regulation
(EC) No 44/2001 on jurisdiction and recognition and enforcements of
judgments in civil and commercial matters ("the Judgments Regulation").
3.The reason why the judge held that the judgment should not
be recognised was that the judgment had been given in default of
appearance and that the defendant in the Greek proceedings (Mr
Tavoulareas) had not been served with the document initiating the
proceedings. The Tsavliris interests challenge both these propositions
and it is now necessary to set out the relevant parts of Article 34 of the
Judgments Regulation. They provide:-
"A judgment shall not be recognised:
1. if such recognition is manifestly contrary to public policy in the Member
State in which recognition is sought;
2. where it was given in default of appearance, if the defendant was not
served with the document which instituted the proceedings or with an
equivalent document in sufficient time and in such a way as to enable
him to arrange for his defence, unless the defendant failed to commence
proceedings to challenge the judgment when it was possible for him to do
so...."
4.Submissions
Mr Peter Irvin for the Tsavliris interests relied on the fact that the
Judgments Regulation and its predecessors (the Brussels and later
Conventions on Jurisdiction and the Enforcement of Judgments in civil
and commercial Matters) were intended to promote the free movement of
judgments in the European Community. He further relied on the "Proposal
for a Council Regulation" which preceded the Judgments Regulation.
The Official Journal of the Community published the proposal on 28th
December 1999 and said of the draft article which became Article 34:-
"This Article determines the sole grounds on which a court seised of
an appeal may refuse or revoke a declaration of enforceability. These
grounds have been reframed in a restrictive manner to improve the free
movement of judgments."
Mr Irvin then proceeded to argue that phrases such as "default of
appearance" and "service with the document which instituted proceedings
or with an equivalent document" should be given a meaning which "leans
heavily in favour of recognition of judgments". In general terms there is,
no doubt, much to be said for Mr Irvin's submission but the fact remains
that both "appearance" and "service" are legal concepts which must be
given a legal meaning of some kind otherwise the parties will only get
palm-tree justice.
5.Both "appearance" and "service" are in issue; since "service"
chronologically must precede "appearance", I shall consider "service" first.
6.Service
The judgment in question is not to be recognised
"if the defendant was not served with the document which instituted
proceedings or with an equivalent document in sufficient time and in such
a way as to enable him to arrange for his defence."
Mr Irvin first pointed to the changes in the wording compared with the
wording of Article 27(2) of earlier conventions (the equivalent to Article
34(2)). Article 27(2) had the word "duly" before the word "served" and
did not have the words "and in such a way as". He then emphasised
the expressed need for the defendant to have the relevant document
in time for him to prepare his defence and in a form to which he could
satisfactorily respond. He concluded by submitting that, so long as the
defendant was notified of the proceedings in a time and in a way that
enabled him to defend if he wanted to do so, the defendant could not
claim that he had not been formally served. In support of this conclusion
he cited Hendrickman v Magenta Druck [1996] ECR1-4943 in which the
Dutch Hoge Raad asked 3 questions of the European Court including
"(3) Must Article 27(2) of the
Brussels Convention
be interpreted as meaning that the provision is also applicable in a case
in which, although the defendant was not declared to be in default of
appearance, the document instituting the proceedings or an equivalent
document was not duly served on, or notified to, him in sufficient time
and the defendant was not validly represented in the proceedings."
7.The Court answered that question in the affirmative because the
persons purporting to represent the defendant in the court in which
judgment was given had not in fact had authority to represent him. No
question arose about service or notification of the proceedings and it was
not necessary for the Court to determine the meaning of "service" in the
8.Brussels Convention. The words "or notified to" were in the question
but I cannot regard either the reasoning or the answer of the Court,
contained in paragraphs 13, 14 and 21 of the judgment, as constituting a
decision that mere notification of the proceedings to the defendant would
be enough.
8.In this context it is important to note that Section 9 of the Judgments
Regulation, which is headed "Lis pendens – related actions", contains the
familiar Articles 27 and 28 giving primacy to the court first seised. Article
30 then provides:-
"For the purpose of this Section, a court shall be deemed to be seised:
1 at the time when the document instituting the proceedings or an
equivalent document is lodged with the court, provided that the plaintiff
has not subsequently failed to take the steps he was required to take to
have service effected on the defendant, or
2. if the document has to be served before being lodged with the court,
at the time when it is received by the authority responsible for service,
provided that the plaintiff has not subsequently failed to take the steps he
was required to take to have the document lodged with the court."
It is also important to note that only 7 months before the adoption of the
Judgments Regulation, the Council of the European Union adopted Council
Regulation No 1348/2000 on Service in the Member States of judicial and
extra-judicial documents in civil and commercial matters ("the Service
Regulation"). The concept of "service" in Article 30 of the Judgments
Regulation must be consonant with the concept of "service" in the Service
Regulation and the word "service" in Article 34(2) of the Judgments
Regulation must likewise have the same meaning as in Article 30 and
the Service Regulation. Otherwise there would be a serious mismatch
between the respective provisions for seisure and judgment recognition.
Given the primacy of the court first seised, it is, par excellence, the
judgment of that court to which recognition must be extended.
9.The only remaining question, therefore, is whether the Greek
proceedings were "served" on Mr Tavoulareas. For this purpose Mr
Irvin relies on the fact that they were exhibited to a witness statement
served in the English proceedings in support of the Tsavliris brothers'
jurisdictional objection to the continuance of the proceedings in England.
This witness statement and its exhibits were received by Mr Tavoulareas
on 31st December 2001 but there has never been any service of the
Greek proceedings in accordance with the Service Regulation as pointed
out by Mance LJ when this case was last before the Court of Appeal, see
[2004] 1 Lloyds Rep 445, 458, [2004] EWCA Civ 48 at para. 38. That
was not conclusive of seisure for the Court of Appeal on that occasion
since the provisions of the Judgments Regulation were not then applicable
to the question of which court was the court first seised. But it is, in
my judgment, conclusive on the question whether service was effected
pursuant to the Service Regulation. Nor does Mr Irvin suggest that there
was service in accordance with either English law or Greek law so far as
those laws might be thought to be relevant.
10.My conclusion that notification is insufficient is not affected by the
absence of the word "duly" from Article 34(2). If service of the document
initiating the proceedings has occurred but is defective in some way
eg because some part of the document is missing or untranslated,
that consideration might well be relevant. But it cannot be relevant
when proceedings have never been served at all. The discussion of the
matter in Dicey & Morris, Conflict of Laws 14th edition (2006) para.
14-214 certainly proceeds on the assumption that there has at least
been purported service; see also Briggs and Rees, Civil Jurisdiction and
Judgments, 4th ed page 509. It follows that I agree with the decision of
Tomlinson J on this point.
11.Default of appearance
Mr Irvin accepted (Skeleton Argument para. 23) that in both a literal
and a colloquial sense, the judgment of the Greek court was a judgment
"in default of appearance" but submitted that, in the context of Article
34(2) as a whole, default of appearance was only a bar to recognition
if a defendant "was not given the opportunity to defend himself at the
hearing by being notified of the proceedings". I have already held that the
requirement of service cannot be met by notification; for much the same
reasons, I cannot believe that notification is relevant to the concept of
"default of appearance". The provisions of the Judgments Regulation are
technical provisions but need to be construed sensibly in order to promote
free movement of judgments. It cannot be right to input extraneous
concepts into the meaning of the technical phrases which are used in
the Regulation. This must all the more be the case if such concepts are
themselves inherently uncertain and likely to lead to further argument.
12."Appearance" may have two separate meanings. Usually, once court
proceedings have begun, a defendant will have to decide whether to
ignore the proceedings or defend them or challenge the jurisdiction of the
court. If he decides to defend he will at some stage have to lodge with
the court a formal document of some kind; so will he if he challenges the
jurisdiction of the court. Once that formal document has been lodged, he
would in most legal systems, be said to have "appeared". If, however, he
decides to ignore the proceedings he will not lodge any formal document
with the court; in that sense he will not have "appeared" but, if he
has been served with the proceedings, he will be at risk of having an
enforceable judgment being entered against him.
13.Once proceedings come before a court for a hearing a defendant will
again have to choose whether to be present in court or not. If he does
choose to be present he will, on any view, have "appeared"; if he chooses
not to be present he will not, in one sense, have "appeared". But if he has
already chosen to take part in the proceedings by defending them or even
by challenging the jurisdiction, he may (in some legal systems) be said to
have already "appeared" and thus not be in default of appearance.
14.Mr Tavoulareas did not "appear" in either of the meanings of the
word; he neither lodged any formal document with the court in Greece
nor was he present when the proceedings came to trial. On any view,
therefore, the judgment against him was given in default of appearance.
In the Hendrickman case it was said that "appearance" should be given
an autonomous meaning rather than the meaning given by any individual
legal system. Since Mr Tavoulareas did not "appear" on any possible
meaning of the word, this is not an appropriate case to decide what that
autonomous meaning should be.
15.As recorded in paragraphs 23 and 25 of the judgment below, the
Greek court stated that Mr Tavoulareas had not appeared "during the
calling forth of the case in its order from the cause list" and recorded that
the judgment was given in the absence of the defendants. This is probably
to be understood to mean that there was no appearance at the hearing.
It might well be the case that the words "In default of appearance" would
not be apposite if the defendant had lodged a formal document with the
court indicating that jurisdiction was not objected to at some earlier stage
but since Mr Tavoulareas did not do that, it is unnecessary to decide that
point.
16.I therefore agree with the judge when he said
"on the assumption that the proceedings were not served on the
Defendant, then pursuant to any acceptable or autonomous definition
of "given in default of appearance" this judgment was, as the court
rendering it expressly said, given in default of appearance by the
Defendants" (para. 43).
There being no service or appearance, therefore, the judgment is not a
judgment which the English court is bound to recognise.
17.Third requirement
The judge held that there was a third requirement before Article 34(2)
could apply viz that the defendant must not have failed to commence
proceedings to challenge the judgment when it was possible for him to do
so. The judge further held that Mr Tavoulareas had not so failed because
he had begun proceedings to challenge the judgment on 16th February
2006. In the court below Mr Irvin argued that it was not sufficient to
begin such proceedings after application had been made for recognition
of the judgment on 28th November 2005. The judge rejected that
argument and there is no appeal from that part of the judgment. In those
circumstances it is unnecessary for this court to decide whether there
is, indeed, this third requirement which must be met in all cases where
recognition of a judgment is sought under the Judgments Regulation
(the contrary argument would be that it only needs to be met if service
is effected); nor is it necessary to decide whether, if there is such a
requirement, it can be complied with after the application for recognition
is made. I prefer to leave those questions to a case where they arise for
direct decision.
18.Cross-appeal
In the light of my conclusion I do not need to express any view on the
question, raised by Mr Tavoulareas in his respondent's notice whether the
judgment of the Greek court should not be recognised on the ground of
public policy under Article 34(1).
19.Costs
Mr Irvin developed a short argument about the costs order of the judge.
He complained that, having won on two of the points taken below
and having only lost on the third point because (after the application
for recognition was brought) Mr Tavoulareas had at last got round to
challenging the decision of the Greek court, it was wrong for the judge to
have ordered the appellants to pay all the costs of their application.
20.The judge was asked for permission to appeal his costs order but he
refused permission, although granting permission on the substance of
the case. Application for permission to this court was only made at the
hearing. For my part, I would not give permission to appeal on this point.
21.The fact that we did hear argument does, however, enable me to
say that, had I been minded to give permission, I would not have
disturbed the judge's order which was well within his discretion. Not
every application has to be split into issues for the purpose of awarding
costs; the application may have had a number of points but the judge was
entitled to look at the overall picture viz that the Tsavliris interests had
lodged an application which failed.
Lord Justice Carnwath:
22.I agree.
Lord Justice Buxton:
I also agree and have nothing to add.