Tavoulareas v Alexander G Tsavliris & Sons Maritime Company

Article 27 of the Brussels Regulation applies where proceedings in the courts of different Member States remain concurrent when the second-seised court determines whether it must decline jurisdiction. The relevant question is therefore not fixed solely at the date when proceedings were issued in that court.

Where the court first seised has subsequently given judgment, the proceedings have ceased to be concurrent for the purposes of article 27, even though an appeal remains possible. The Regulation draws no relevant distinction between proceedings ending by judgment and proceedings ending by valid discontinuance.

Alexander G Tsavliris and Sons Maritime Company applied in the second action for a declaration that the Commercial Court had no jurisdiction under article 27 of the Brussels Regulation. The proceedings in the Greek court had been commenced first. The English proceedings were commenced on 16 August 2004, and the application was made on 4 October 2004.

The Greek court gave judgment on 22 October 2004, although the claimant’s time to appeal had not expired. In an earlier judgment, [2005] EWHC 2140 (Comm), the court had concluded that article 27 would have required it to decline jurisdiction before the Greek judgment. The issue was whether that obligation continued after judgment had been given.

1. Application dismissed. The court rejected the application that it decline jurisdiction under article 27.
2. Article 27 concerns concurrent proceedings. Its purpose is to regulate lis pendens where courts of different Member States are seised of related proceedings. The court must therefore assess whether the proceedings remain concurrent when the second-seised court determines the jurisdictional issue.
3. The argument that the position is irrevocably fixed when the second proceedings are instituted was rejected. It would produce the anomalous result that the English court had to decline jurisdiction even though identical proceedings could immediately be started afresh after the first proceedings had reached judgment.
4. The judgment of the Greek court was a judgment within Chapter III of the Brussels Regulation, despite the continuing possibility of an appeal. The relevant provisions after judgment are those concerning recognition and enforcement, rather than the lis pendens provisions in article 27.
5. The reasoning in Internationale Nederland Aviation Lease BV v CAA [1997] 1 Lloyd’s LR 80 was adopted as convincing. The court found no principled distinction between proceedings ending by valid discontinuance and proceedings ending by judgment. The authorities relied on by the defendant did not establish that article 27 continued to apply after the first proceedings had ceased to be concurrent.

This was a first-instance decision in a further application arising from the second action. The court had previously considered the application in [2005] EWHC 2140 (Comm) and invited further submissions on the effect of the Greek court’s subsequent judgment.