Tavoulareas v Tsavliris & Ors

For recognition under Article 34(2) of the Judgments Regulation, service requires service of the document instituting proceedings, or an equivalent document, in accordance with the applicable service regime. Mere notification of proceedings is insufficient. The concepts of service and default of appearance are autonomous technical concepts and cannot be replaced by an inquiry into whether the defendant knew of the proceedings or could have defended them. A judgment made against a defendant who neither received formal service nor appeared is therefore not one which the English court is bound to recognise.

The appellants sought recognition in England of a Greek judgment declaring that they were not liable to Mr Tavoulareas. The Greek proceedings had been exhibited to a witness statement received by him in the English proceedings, but had not been served under the Service Regulation or, so far as relevant, under English or Greek law. The Greek court proceeded in his absence.

Tomlinson J held that the judgment was given in default of appearance and that the initiating document had not been served, so that recognition was barred by Article 34(2) of the Judgments Regulation: [2006] EWHC 414 (Comm). The appeal concerned the meaning and application of service and default of appearance, together with an asserted third requirement concerning proceedings to challenge the judgment.

1. Appeal dismissed. The Greek judgment was not a judgment which the English court was bound to recognise under Article 34(2) of the Judgments Regulation.
2. Service under Article 34(2) means service of the document instituting the proceedings, or an equivalent document, in the legally applicable manner. The meaning of service must be consonant with Article 30 of the Judgments Regulation and the Service Regulation, otherwise there would be a mismatch between the rules governing the court first seised and judgment recognition. The Greek proceedings had merely been exhibited to a witness statement in the English proceedings. That notification did not constitute service.
3. The omission of the word duly from Article 34(2) did not make notification sufficient. Defective purported service might be relevant, but the provision could not apply where the proceedings had never been served at all.
4. The judgment was given in default of appearance. Mr Tavoulareas had neither lodged a formal document in the Greek proceedings nor attended the trial. Notification was not a substitute for appearance, and it was unnecessary to determine the autonomous meaning of appearance in cases involving an earlier formal procedural step.
5. The Court left open whether the separate requirement concerning proceedings to challenge the judgment exists in every recognition case and, if so, whether it can be satisfied after an application for recognition has been made. The public-policy ground under Article 34(1) was also left undecided.
6. The costs order was not disturbed. The judge had been entitled to assess the overall application rather than divide costs issue by issue.

• Court of Appeal (Civil Division) — Appeal dismissed. The order of Tomlinson J was upheld on the material issues concerning service and default of appearance under Article 34(2) of the Judgments Regulation.
• High Court of Justice, Queen’s Bench Division, Commercial Court — Tomlinson J held that the Greek judgment should not be recognised: [2006] EWHC 414 (Comm).