Phillips & Ors v Symes & Ors

For the purposes of Article 21 of the Lugano Convention, an English court is ordinarily definitively seised when proceedings have been issued and served. Delivery of documents to an English court official for onward transmission does not itself establish seisin. The English court decides what material must be served, while the method of service abroad is governed by the applicable service convention and foreign law.

In exceptional or rare circumstances, the court may use CPR 3.10 and CPR 6.9 to preserve proceedings despite an omitted original Claim Form, particularly where the defendant knew the substance of the claim, suffered no prejudice, and the defect resulted from an unusual procedural failure. CPR 6.8 cannot retrospectively validate alternative service or be used to subvert Convention-based priority.

The claimants sought declarations concerning service of an English Claim Form on the second and third defendants, who were domiciled or registered in Switzerland. They relied on Article 6 of the Lugano Convention and had attempted service under the Hague Convention through the Swiss authorities.

The original English Claim Form was removed from the bundle served on the second defendant by a Swiss court clerk. Service on the third defendant failed because the Swiss postal authorities did not deliver the documents to its post office box. The defendants subsequently issued proceedings in Zurich and argued that the Swiss proceedings had priority under Article 21 of the Lugano Convention. The central issues were when the English court became definitively seised, what documents were required, and whether the defects could be cured or service dispensed with.

1. Definitive seisin. The English court was ordinarily definitively seised for Article 21 purposes only when the proceedings had been issued and served. Delivery of the documents to the Senior Master for transmission abroad was insufficient. The court followed the general approach in Dresser UK Ltd v Falcon Gate Freight Management Ltd and The Sargasso; Canada Trust v Stolzenberg did not establish any different rule.
2. Material required for seisin. The English court, rather than the foreign court, determined what documents had to be served. The method of service had, however, to comply with the Hague Convention and the law of the state addressed. An original Claim Form was ordinarily required for the normal prosecution of the action, but its omission did not automatically invalidate the proceedings under CPR 3.10.
3. Discretion. CPR 6.8 could not be used retrospectively to create alternative service. CPR 3.10 and CPR 6.9 retained a power to address an omitted Claim Form, but retrospective relief was exceptional or rare, especially in an international case. Relevant factors included the cause of the defect, the claimant’s conduct, the defendant’s knowledge, absence of prejudice, and the effect on Convention priorities.
4. Second defendant. The documents served on Mrs Nussberger on 19 January 2005 were sufficient for definitive seisin. The court declined to invalidate the proceedings under CPR 3.10 and, so far as necessary, dispensed with service of the original Claim Form under CPR 6.9. A fresh original Claim Form would nevertheless have to be served before the action could be prosecuted in the ordinary way.
5. Third defendant. Service on Mrs Nussberger was not service on Nefer under Swiss law. The failure to serve Nefer resulted from the Swiss Post Office’s error, not from evasion by the claimants. In the exceptional circumstances, the court likewise dispensed with service of the Claim Form for the limited purpose of establishing definitive seisin. A fresh Claim Form would have to be served on Nefer for the action to proceed.

First-instance decision. The judgment refers to earlier decisions and an appeal in related proceedings, but those decisions formed part of the same litigation and are not appellate stages of this judgment.