Tavoulareas v Tsavliris

Under article 21 of the Brussels Convention, priority depends on which court first becomes definitively seized. The inquiry uses each court’s national procedural law, read in the Convention’s international context, and requires chronological priority rather than retrospective pendency from filing.

Where proceedings require service abroad, Council Regulation (EC) No 1348/2000 governs the relevant transmission and service. Service on a public prosecutor under domestic law is insufficient where the documents have to be served in another Member State. At minimum, the defendant must have timely notice and an opportunity to defend.

The claimant brought English proceedings on 7 November 2001 concerning sums allegedly due under earlier agreements. The defendants issued Greek negative-declaratory proceedings in the Piraeus court on 8 November 2001. The Greek documents were served on the Greek Public Prosecutor on 19 November, but were sent to an obsolete English address. The English proceedings were served on the defendants on 23 November and 24 December.

The claimant learned of the Greek proceedings on 31 December. Tomlinson J stayed the English action, holding that the Greek court was first seized under article 21 of the Brussels Convention. The appeal concerned whether service on the Public Prosecutor made the Greek proceedings definitively pending before service of the English proceedings.

1. Disposition. The appeal was allowed unanimously. The English proceedings were restored.
2. Article 21. Following Zelger v Salinitri (Case 129/83) and Dresser U.K. Ltd. v. Falcongate Freight Management Ltd. [1992] QB 502, the court first seized is the court before which the requirements for proceedings to become definitively pending are first fulfilled. Those requirements are assessed under the national law of each court, but domestic concepts must be applied in the international context and purpose of the Convention. Filing could not retrospectively establish priority, since article 21 requires a simple chronological test.
3. Cross-border service. The Greek provisions requiring service on the Public Prosecutor for a defendant abroad addressed the transmission of documents for service outside Greece. They therefore fell within Council Regulation (EC) No 1348/2000. The Regulation’s service regime could not be avoided by treating service on the Public Prosecutor as final service. The place of service selected by the issuing party engaged the Regulation, regardless of whether the defendant was actually resident at that address.
4. Definitive pendency. The Greek proceedings had not been served in accordance with the Regulation. Nor had the claimant received notice and an opportunity to defend before the English proceedings were served. The Regulation’s restrictions on judgment in default reinforced that conclusion. Even apart from the Regulation, the incorrect address created a serious defect under the Greek procedural rules. The proceedings remained vulnerable to challenge and could not be definitively pending until proper service, or at least timely notice and an opportunity to defend.
5. Accordingly, the Greek court was not first seized before the English proceedings. The stay ordered by Tomlinson J was set aside and the English action was restored.

1. Court of Appeal (Civil Division): allowed the appeal and restored the English proceedings on 5 February 2004.
2. Queen’s Bench Division: Tomlinson J stayed the claimant’s action by order dated 21 March 2003, on the basis that the Greek court was first seized.