ALDOUS LJ:
1. The issue in this appeal is whether the English Court is bound to stay
these proceedings because of the application of Article 21 of the Brussels
Convention 1968 which was incorporated into English law by the Civil
Jurisdiction and Judgments Act 1982.
The Facts
2. On 18th May 1992 Molins Plc, the appellants, entered into a written
agreement with GD SpA, the respondents, which granted to GD an
exclusive licence under certain patents and patent applications. The
agreement was to be construed and interpreted under English law. Clause
3 set out the royalties that GD had to pay and clause 5 provided for
payment of a minimum royalty which would be reduced if GD converted
the licence to a non-exclusive licence. The effect of clause 5 was that
the minimum royalties due under the agreement after 1994 were of the
order of £100,000 to £150,000 per year. GD requested that the 1994
payment should be deferred. This was agreed subject to the payment of
an additional £30,000. In 1995, 1996 and 1997 no royalties were paid.
3. On 14th August 1998, Molins wrote to GD requesting payment of the
minimum royalties due under the agreement. After correspondence, GD
wrote on 30th March 1999 to Molins alleging that the licence agreement
had been entered into by them in reliance on representations which had
proved to be false with the result that GD were entitled to rescind the
agreement and to repayment of the royalties paid.
4. On 22nd June 1999 Bristows, the solicitors acting for Molins, wrote a
letter before action to Linklaters, the solicitors acting for GR That letter
concluded in this way:
"Our client has instructed us to be prepared to commence proceedings
against your client without further notice for the recovery of the monies
owed to our client under the Licence Agreement should your client fail
to pay those monies to our client within 14 days of the receipt of the
faxed copy of this letter by you. Please could you confirm that you are
instructed to accept service of said proceedings."
On 30th June 1999 Linklaters replied stating that they would seek
instructions and on 6th July 1999 Bristows sent a reminding letter which
stated:
"We refer to our letter of 22nd June 1999 in which we requested
confirmation that you are instructed to accept service of proceedings on
behalf of GD SpA. Please could we have your substantive response to this
request."
5. On 7th July 1999 Linklaters wrote stating that they were still awaiting
instructions from GD.
6. On 13th July 1999, Bristows issued a claim form seeking payment of
the outstanding royalties in the sum of £523,600 and interest and on the
same day wrote to Linklaters informing them of it. The letter pointed out
that the claim form was valid for service outside the jurisdiction. It went
on:
"... in order to avoid the unnecessary additional costs that would be
associated with service in Italy, we would be grateful if you would let us
know whether or not you are instructed to accept service of proceedings
on behalf of GD SpA."
7. On 15th July 1999 Linklaters replied stating that they were still
awaiting instructions. On 21st July 1999, Linklaters wrote stating that
they were not instructed to accept service. Bristows therefore took steps
to serve the claim form on GD in Italy.
This was effected on 30th July 1999.
8. The letters written by Linklaters to Bristows gave no indication of
what GD had in mind. On 19th July 1999 GD, without any letter before
action or any prior indication of any kind, issued proceedings in the civil
court of Bologna against Molins. Those proceedings sought rescission of
the licence agreement, a declaration that no royalties need be paid and
repayment of £105,000 being the sum paid by GD to Molins under the
licence.
9. By an application dated 19th July 1999 to the presiding judge of the
Court of Bologna, GD sought authorization to serve the writ of summons
outside Italy by faxing it to Molins' fax number. The translation of the
relevant parts of the application is as follows:
"TO US PRESIDING JUDGE OF THE COURT OF BOLOGNA Request of
authorization to perform a service of process by fax GD S.p.A (hereinafter,
for the sake of brevity, referred to as "GD") with its registered office
located in Bologna, via Pomponia n. 10, in the person of its present legal
representative Mr Gian Carlo De Martis, acting in his capacity as Managing
Director; represented and defended – according to the Power of attorney
attached hereto marginally – by the lawyers Gian Paolo Di Santo from
the Court of Milan and Pier Antonio Mareschi from the Court of Bologna;
electively domiciled at the latter's office located in Bologna, Via D'Azeglio
n. 21.
WHEREAS
- the aforesaid company intends to start legal proceedings against
Molins plc – an English company having its registered office located in
Blakelands, Milton Keynes – with the purpose of obtaining the rescission
of a licence agreement entered into by the applicant and by Molins on
18th May 1992, which has finally turned out to be inevitably vitiated by a
mistake and to be therefore voidable;
- in spite of all the efforts repeatedly made by GD in order to settle the
controversy amicably, Molins has recently escaped any contact with the
applicant;
- the judicial paper being examined is to be translated into English;
- specially during the holidays it would be extremely easy for Molins to
try and prevent the execution of the service of process according to the
methods provided for by the international Agreements;
all this stated first
GD represented and defended as referred to herein in the caption
Asks
for Your Excellency, the Presiding Judge of this Court, to authorize serving
the writ of summons attached hereto in copy, together with the respective
sworn translation into the English language to Molins plc, 11 Tanners
Drive, Blakelands, Milton Keynes, Buckinghamshire M1K145LU, by faxing
it to the latter company's fax number: 0044-1908-218499.
Milan-Bologna, on this 10 day of July 1999
Mr Gian Paolo Di Santo, lawyer
Mr Pier Antonio Mareschi, lawyer"
The application was granted by decree of the Judge dated 20th July 1999
and the fax transmission took place during the afternoon of 20th July
1999.
10. It is to be noted that the basis for the need for service by fax was two
statements of fact. First that in spite of all the efforts reportedly made
by GD to settle the controversy amicably, Molins had recently escaped
any contact with the applicant, and second that during the holidays it
would be extremely easy for Molins to try and prevent the execution
of the service of process according to the methods provided for by the
international agreements.
11. Pumfrey J in his judgment pointed out that both statements were
obviously untrue and he proceeded on the footing that they were lies
which should be condemned. Before us Mr Silverleaf QC, who appeared
for GD, did not seek to suggest that the judge was wrong to proceed upon
that basis. At no time had Molins escaped contact with the applicant. To
the contrary, they were pressing for payment and their solicitors were
in constant contact with GD's solicitors. Further, the holidays could have
had no effect upon the ability of OD to serve the Italian proceedings upon
Molins. Both statements were untrue and known to be untrue and were
made for the purpose of deceiving the presiding judge of the Bologna
Court.
12. On 3rd August 1999 Linklaters wrote to Bristows a letter which
revealed the strategy of GD and why the false statements had been made
to the presiding judge of the Bologna Court. It stated:
"GD has just been served with a claim form. Molins was served with
Italian proceedings on 20 July 1999. These Italian proceedings involve
the same cause of action as the English proceedings. The Italian courts
are "first seised" of this action. Under Article 21 of the Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters 1968 (the "Brussels Convention") the English court must stay
the English proceedings. Please confirm by return that you will stay the
English proceedings."
13. On 25th August 1999 Linklaters wrote saying that they were
preparing an application to challenge the jurisdiction of the English
Courts. The application notice was issued on 2nd September 1999. It
sought an order that the English action be stayed or set aside and a
declaration that the court had no jurisdiction over GD in the matter. The
reason given was that there were proceedings in Italy between the same
parties relating to the same cause of action and that the Italian court
was the court first seised. It followed that pursuant to Article 21 of the
Brussels Convention the English courts should decline jurisdiction.
14. After evidence had been filed by the parties, the application came
before Pumfrey J on 17th December 1999.
The Judgment
15. Before the judge GD submitted that the transmission by fax of the
Italian proceedings constituted good service under Rule 6.2 (1)(e) of
the Civil Procedure Rules which was an accepted form of service under
Article 15 of the Hague Convention. Alternatively the service by fax was
in accordance with Article 4 of the 1930 Convention between the UK and
Italy for the regulation of "Legal Proceedings in Civil and Commercial
Matters". The judge rejected both those submissions. They were renewed
in this Court by GD.
16. GD also submitted that by reason of Italian law service by fax on
Molins of the Italian proceedings prior to service by Molins of the English
proceedings meant that the Italian court was the court first seised of the
dispute. Article 21 of the Brussels Convention applied and therefore the
English action should be stayed. The judge accepted those submissions.
He said:
"27. There is no doubt that the procedural steps which have been taken
have resulted in the appointment of a hearing in Bologna. One can say
that the lever which puts the mechanism in motion has been pulled.
At that hearing, it will be open to Molins to challenge the service upon
them of the proceedings, and to challenge the jurisdiction of the court on
Brussels Convention grounds. It appears to be common ground between
the experts that were Molins to appear in the Bologna court to dispute the
validity of service or the jurisdiction of the Bologna court having regard to
the Brussels Convention, the service by fax of the proceedings will have
achieved its object and would not subsequently be declared void.
28. I consider that proceedings are definitively pending before the Italian
court. It seems to me that, where it is open to the English court not
to dismiss but merely to stay proceedings to await what must on any
reading of the Convention be a substantial challenge to the jurisdiction
of the Bologna court which must be decided by that court, it would in
general terms be a wrong exercise of the discretion which I have to
investigate complicated questions of Italian procedural law which, if I
determine them against the plaintiffs in the Italian proceedings, will
have to be accompanied by injunctive relief to make that determination
effective. So far as the question of the adequacy of service under
Italian law is concerned, I think that I must in the present case exercise
the discretion which I undoubtedly have under Article 21 to stay the
proceedings but not to dismiss them and leave all issues both of service
and of jurisdiction to the Italian court in which proceedings in which these
questions will be determined are definitively pending."
Against that decision and the stay ordered by the judge Molins appealed.
17. Molins also submitted before the judge that the Italian proceedings
were an abuse of the process of the English court. They relied on the
way their solicitors were led to believe that GD were considering whether
to authorise Linklaters, to accept service, whereas in truth they had
no intention of doing so and were delaying to enable them to start
proceedings in Italy before the English court became seised of the
dispute, and also upon the false representations made to the Italian court
to persuade that court to authorize service by fax. The judge having
considered the guidance given by this Court in Turner v Grovit [1999] 3
WLR 794 said:
"34. I am satisfied that the facts of the present case, as I have set
them out above, do not amount to an abuse of process justifying my
intervening in the manner contemplated by Turner v Grovit. Unless
I were satisfied that I should intervene in that way, I would not be
justified in refusing to apply the ordinary rules of Article 21 and stay
the proceedings. It is one of the objects of the Convention to prevent
concurrent proceedings, and I do not think that to mark my disapproval
of GD's activities by refusing to accede to their application to stay
these proceedings would be desirable. Accordingly, I do not think that I
should refuse this application for a stay on the grounds that the Italian
proceedings are an abuse of process."
Molins challenged that conclusion in this Court.
18. I will deal with the issues in the same order as the judge.
Service under the Civil Procedure Rules/ Article 15 of the Hague
Convention
19. It is common ground that both the English and Italian proceedings
involve the same cause of action and that if the transmission by fax of
the Italian process amounted to service under the Civil Procedure Rules,
then the Italian Court was the court first seised of the cause of action and
having regard to the Brussels Convention a stay should be ordered.
20. The rule relied on is Part 6.2.(1) which is as follows:
"6.2.(1) A document may be served by any of the following methods -
(a) personal service, in accordance with rule 6.4;
(b) first class post;
(c) leaving the document at a place specified in rule 63;
(d) through a document exchange in accordance with the relevant
practice direction; or
(e) by fax or other means of electronic communication in accordance with
the relevant practice direction.
21. The relevant practice direction is paragraph 3.1 of the Part 6 direction.
It states:
"3.1 Subject to the provisions of paragraph 3.2 below, where a document
is to be served by facsimile (fax);
(1) the party who is to be served or his legal representative must
previously have indicated in writing to the party serving -
(a) that he is willing to accept service by fax, and
(b) the fax number to which it should be sent.
(2) if the party on whom the document is to be served is acting by a legal
representative, the fax must be sent to the legal representative's business
address and,
(3) a fax number
(a) provided in writing expressly for the purpose of accepting service
where the party to be served is acting in person, or
(b) set out on the writing paper of the legal representative of the party
who is served, or
(c) set out on a statement of case or a response to a claim filed with the
court,
shall be taken as sufficient written indication for the purposes of
paragraph 3.1(1)."
22. GD submitted that Molins, by writing a letter dated 14th August
1998 to GD, had indicated in writing that they were willing to accept
service by fax. That letter was written to the Managing Director of GD
by the Acting Chief Executive of Molins on Molins' paper which included
as part of its heading the telephone and fax numbers of Molins. It refers
to an enjoyable dinner they had in London at which they appear to have
discussed commercial possibilities. The letter goes on to set out the
amounts of royalties claimed by Molins to be outstanding and concludes in
this way:
"I hardly imagine that this is a matter which needs to or should require
legal involvement so I have called off our lawyers on the basis that I am
sure that GD will honour its obligations. However, we do have the overdue
amounts, and I would be grateful for your early attention to these.
Please do not hesitate to contact me should you require any further
information.
In the meantime I look forward to meeting you again in the not too
distant future."
23. GD could not and did not rely upon the contents of the letter as
providing an indication in writing by Molins that they would accept service
by fax of the Italian proceedings. They submitted that the inclusion of
the fax number in the letter heading was a clear indication by Molins that
the number could be used to send documents to them. The fax number
was the equivalent of a postal address and in the real world its use was
quicker, cheaper and more reliable. It had been included by Molins in
their letter head for the purpose of use by others and that amounted to
an indication that it could be used for the communication of documents
such as the Italian proceedings. Accordingly paragraph 3.1 of the Part 6
practice direction was satisfied.
24. I reject that submission. The Civil Procedure Rules permitted for the
first time service of proceedings by fax. Paragraph 3. 1(1) sets out the
requirements for service by fax upon a party such as Molins. That must
be read together with paragraph 3.1(3)(a) which lays down when a fax
number can be taken as a sufficient written indication for the purposes of
paragraph 3.1(1). Thus a party, such as Molins, must have indicated in
writing that he is willing to accept service by fax and the fax number to be
used. If a fax number is provided in writing expressly for the purpose. of
accepting service then that is deemed to be a sufficient written indication
of a willingness to accept service by fax.
25. In the present case, the intention of GD to issue proceedings was
concealed from Molins. Molins had no reason to indicate it would or would
not accept service by fax. Nor did they provide their fax number expressly
for the purpose of accepting service. The suggestion that the inclusion
of a fax number in a heading on writing paper amounts to an indication
in writing of willingness to accept service of legal documents by fax is
contrary to the clear meaning of the practice direction and common
sense. If inclusion of a fax number in writing paper were to be sufficient,
then the practice direction would have said so without more ado. Further
the meaning of paragraph 3. 1 (1) is confirmed by paragraph 3.1(3)
which expressly provides that a fax number, on writing paper of a legal
representative of a party to be served is sufficient. If that were to be
the case for the party itself, then there would be no need to make such
specific provision in the case of a legal representative. It follows that the
provisions of the Hague Convention were not satisfied.
The 1930 Convention
26. It was also common ground that if the transmission of the Italian
proceedings by fax amounted to service under the 1930 Convention the
Italian court was the court first seised and the judge was right to stay the
action.
27. The 1930 Convention between the UK and Italy regarding "Legal
Proceedings in Civil and Criminal Matters" provides for service of legal
documents in Articles 2 to 7. Article 2 requires that judicial or extra-
judicial documents "may, at the option of the party interested, be served
on the recipient in any of the ways provided in Articles 3 and
4. " Article 3 provides for service in England by transmission of a request
for service by an official and also specifies the method of service. Article 4
provides an alternative route. It states:
"The document to be served may also be served on the recipient,
whatever his nationality, without the intervention of the authorities of the
country in which service is to be effected: -
(a.) By a diplomatic or consular officer of the High Contracting Party from
whose territory the document emanates; or
(b.) By an agent appointed by the judicial authority of the country from
which the document emanates, or by the party on whose application the
document was issued. In the case of documents to be served in Italy,
such agent shall always be either a Notary Public or an Advocate, who
shall employ for the act of service an official competent by Italian law for
this purpose.
The document to be served shall be drawn up in the language of the
country in which service is to be effected, or shall be accompanied by a
translation in such language, unless the recipient is a subject of the High
Contracting Party from whose territory the document emanates."
28. GD have relied upon Article 4(b). They submitted that, as the Italian
proceedings were sent by fax by an agent appointed by the Bologna
Court, the requirements of Article 4(b) had been satisfied.
29. Article 4 enables service by a diplomatic or consular officer or an
agent appointed by the judicial authority from which the document
emanates. However it does not purport to lay down how that service
is to be effected. It cannot be sensibly read as allowing any means of
service including means which would be insufficient in the country in
which service is effected. Thus the document to be served must, if it is
served under Article 4, be served in accordance with the rules for service
in England at the relevant time. As transmission by fax to Molins of the
Italian proceedings did not satisfy the requirements of the Civil Procedure
Rules, it did not amount to service under Article 4 of the Convention.
The Brussels Convention
30. Article 21 of the Brussels Convention is in these terms:
"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 stay its
proceedings until such time as the jurisdiction of the court first seised is
established.
Where the jurisdiction of the court first seised is established, any court
other than the court first seised shall decline jurisdiction in favour of that
court."
31. As I have said, it is accepted by Molins that the proceedings in
England and in Italy involve the same cause of action and the same
parties. Thus the crucial question is – which court was first seised? Molins
submitted that the judge was wrong to conclude that it was the Italian
court. GD supported the conclusion reached by the judge.
32. The ECJ in Zelger v Salinitri [1984] ECR 2397 explained that the court
first seised is the one before which the requirements for proceedings to
become definitively pending are first fulfilled.
33. The court said at page 2407:
" 10. It should be pointed out that the rules of procedure of the various
Contracting States are not identical as regards determining the date at
which the courts are seised.
11. It appears from information on comparative law placed before the
Court that in France, Italy, Luxembourg and the Netherlands the action
is considered to be pending before the court from the moment at which
the document initiating the proceedings is served upon the defendant. In
Belgium the court is seised when the action is registered on its general
roll, such registration implying in principle prior service of the writ of
summons on the defendant.
12. In the Federal Republic of Germany the action is brought, according
to Paragraph 253 (1) of the Zivilproze13ordnung, when the document
initiating the proceedings has been served on the defendant. Service is
effected of its own motion by the court to which the document has been
submitted. The procedural stage between the lodging of the document
at the registry of the court and service is called "Anhängigkeit". The
lodging of the document initiating the proceedings plays a role as regards
limitation periods and compliance with procedural time-limits but in no
way determines the moment at which the action becomes pending. It
is clear from the aforementioned Paragraph 253, read together with
Paragraph 261 (1) of the Zivilprozeßordnung, that an action becomes
pending once the document initiating the proceedings has been served on
the defendant.
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
courts 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. Beyond that, Article 21
gives no indication of the nature of the procedural formalities which must
be taken into account for the purposes of considering whether or not
to recognise the existence of such an effect. In particular, it gives no
indication as to the answer to the question whether a lis pendens comes
into being upon the receipt by a court of an application or upon service or
notification of that application on or to the party concerned.
15. Since the object of the Convention is not to unify those formalities,
which are closely linked to the organisation 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."
34. A decision as to whether a court has jurisdiction under Article 21
requires it to decide when the relevant national courts were seised of the
proceedings. Thus it is necessary in this case to decide when the English
and Italian courts were seised of the cause of action. GD submitted that
the decision as to when the Italian court first became seised should be
left to be determined by the Italian court and therefore a stay was at
the moment appropriate. No doubt an English court has a discretion to
regulate its business, but the issue has to be decided and I believe it right
that this court should decide it as it was first raised here and was fully
canvassed in the evidence and in argument and was dealt with by the
judge.
35. It is common ground that under English law proceedings only become
definitively pending upon service (see Dresser v Falcongate [1992] QB
502 and The Sargasso [1994] 3 AER 180). In this case service was
completed on 30th July 1999 and it follows that the English court was
seised of the proceedings on that date.
36. Mr Males QC who appeared for Molins submitted that under Italian
law service was required before proceedings became definitively pending.
That he submitted was consistent with the statement of the ECJ in
paragraph 11 of the judgment in Zelger and was supported by the
perceived need of GD to procure urgent service by the Bologna court, It
was also in accordance with the evidence of the experts. Their evidence
envisaged that service was a requirement before proceedings were
definitively pending in the Italian court and was largely directed to what
amounted to good service under Italian law. Mr Males submitted that the
question of what amounted to good service was ultimately a question
of community law as Article IV of the Protocol, incorporated into the
Brussels Convention by Article 65, provided for the way in which service
between Contracting States had to be effected. As transmission by fax did
not constitute valid service under Article IV, the Italian court was not as
yet seised of the proceedings. It followed that the English court was the
court first seised of the proceedings and the judge was wrong to stay the
English proceedings.
37. Mr Silverleaf reminded us that the purpose of the Convention was
to avoid clashes between the courts of Contracting States and that the
Convention distinguished between service and seisin. Article 21 did not
indicate what were the requirements for seisin which were therefore the
requirements of national law. He accepted that service was necessary
under Italian law before proceedings became definitively pending, but
submitted that the proceedings could be definitively pending under
Italian law even though the service had been irregular, provided that
the irregularity rendering the service improper could be cured. He drew
to our attention the evidence of Professor Luzzatto who accepted in
his evidence that the Hague Convention and the 1930 Convention, as
international Treaties, prevailed over conflicting internal Italian rules of
procedure. His evidence was that under Italian law the service by fax
of the Italian proceedings was sufficient to ensure that the proceedings
before the Italian court had been definitively brought, so as to provide
the Italian court with jurisdiction for the purpose of Article 21 of the
Brussels Convention, as any irregularity would be cured if Molins entered
an appearance or, if they did not, it could be validated retrospectively
pursuant to directions of the judge.
38. I have no doubt that service is a requirement of Italian law before
proceedings become definitively pending before an Italian court. I
accept that irregular service can under Italian law be validated either
by appearance or an order of the judge and that such validation would
be retrospective; but until such validation has been achieved the Italian
court cannot be seised, as during the interim period the proceedings could
not be definitively pending before the Italian court. A similar view was
adopted, rightly in my view, by His Honour Judge Diamond QC in AGF v
Chiyoda [1992]1 Lloyds 325. He said at page 337:
"There is, moreover, a further point not taken by any of the experts on
Italian law which seems to me to have a bearing on the question of seisin.
In Zelger v Salinitri the European Court held that the Court first seised
is the one before whom the requirements for proceedings to become
"definitively pending" are first fulfilled. It seems to me that if the writ
was null and void at all times down to the time that Unat Re entered
an appearance on Feb. 20, 1991, then even if the appearance of Unat
Re cured the irregularity retrospectively to the date of service it would
be difficult to speak of the proceedings as having become "definitively
pending" within the meaning of the Convention until the appearance
had been entered. Before that time the proceedings were not, on the
evidence, merely voidable; they were null and void unless the defendant
should, by his appearance, remedy the defect in the writ. This is an
additional point which would seem to be available to Unat SA on the
second aspect of the matter, in addition to the points made by Av. Rubino-
Sammartano."
39. In my view, seisin cannot depend upon what will happen in the future.
This court is concerned to decide whether proceedings in Italy were
definitively pending prior to 30 July 1999, the date when the English court
was seised of the cause of action. As of that date no validation had taken
place.
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 Article IV of the Protocol to the Brussels Convention. In
so far as Italian law differs it is irrelevant. The purpose of the 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 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 Article 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 Article 27(2) which excludes
from recognition judgments not duly served, i.e. 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 (The Sky One [1988] 1 Lloyd's 23 8 at 24 1) 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.
41. Before the Italian court could be seised of the cause of action, the
proceedings had to be served upon Molins in accordance with the Brussels
Convention. They have not been and it follows that the Italian court is
not yet seised of the proceedings issued in Italy. I therefore conclude
that the English court was the court first seised of the cause of action and
therefore there is no ground for a stay.
Abuse of Process
42. The facts of the case are different to those in Turner v Grovit. In view
of the conclusion I have already reached it is not necessary to decide
this issue, on which, it must be added, we did not hear full argument. It
follows that the question of whether the acts of GD amounted to an abuse
of the process of the English court has become hypothetical and is best
left undecided, particularly as it is the Italian court which appears to have
suffered the real abuse.
Conclusion
43. I would allow the appeal and discharge the order of the judge.
POTTER LJ:
44. I agree.
NOURSE LJ:
45. I also agree.