Tavoulareas v Tsavliris & Ors

For Article 21 of the Brussels Convention, the court first seised is identified by asking when proceedings became definitively pending under the national law of the court concerned. Cross-border service rules do not answer that separate question where the foreign court’s domestic law treats service within its own jurisdiction as sufficient. A Greek action was therefore first pending when the writ was served on the Greek Public Prosecutor, despite the claimant’s inaccurate foreign address. The English proceedings were stayed and a default judgment was set aside. The court retained jurisdiction pending clearer evidence that the Greek court would entertain the claimant’s counterclaim.

The claimant sought recovery of sums allegedly due under loan and award-sharing arrangements connected with a salvage operation. The defendants subsequently commenced proceedings in Greece seeking declarations of non-liability. They argued that the Greek court had been first seised before service of the English proceedings and that Article 21 required a stay.

The central issues were when the Greek proceedings became definitively pending under Greek law, whether service on the Greek Public Prosecutor was sufficient, whether Council Regulation (EC) No 1348/2000 altered that conclusion, and whether the English default judgment should be set aside.

1. Stay and default judgment. The English action was stayed under Article 21 of the Brussels Convention. The default judgment against the First Defendant was set aside because the Greek court was already seised of the dispute.
2. First seised court. Following Zelger v Salinitri 1994 ECJ 2397, the requirements for proceedings to become definitively pending are determined by the national law of the court concerned. The English court therefore had to determine, as a matter of Greek law, when the Greek proceedings became pending.
3. Greek procedural law. The court preferred the evidence of Professor Antapassis and Mr Tzioumas. On that evidence, filing the Greek action followed by service on the Public Prosecutor was sufficient to make the proceedings definitively pending, at the latest on 19 November 2001. The inaccurate address raised issues for the Greek court, but did not prevent seisin for the purposes of Article 21.
4. Service Regulation. Council Regulation (EC) No 1348/2000 concerned the transmission and efficacy of service from one Member State to another. It did not determine whether, under Greek domestic law, service on the Public Prosecutor was sufficient to make proceedings definitively pending. The decisions in Molins plc v GD SpA [2000] 1 WLR 1741 and Phillips v Symes [2002] 1 WLR 853 addressed materially different questions and did not require another conclusion.
5. The court declined at that stage to decline jurisdiction altogether. The evidence did not establish that the Greek court would entertain a counterclaim by the claimant, and questions concerning the inaccurate address and any alleged abuse of the Convention were matters for the Greek court.
6. It was unnecessary to decide the residual forum non conveniens issue. In any event, Greece had not been shown to be the more appropriate forum.