Nussberger & Anor v Phillips & Anor

The English court becomes seised for the purposes of the Lugano/Brussels rules only when the defendant has been validly served with the claim form; procedural powers such as CPR 6.9 cannot properly be used to retrospectively alter which foreign court is "first seised" under Article 21 so as to overturn priority already attained by proceedings in another Convention State.

The appeal concerned whether the English High Court or the Zurich Obergericht was "first seised" for the purposes of Article 21 of the Lugano Convention, given that the English claimant's copy claim form, sent for service in Switzerland under the Hague Convention, was removed from the package by a Swiss court official before personal service. The judge below exercised CPR 6.9 to dispense retrospectively with service of the claim form so as to make the English proceedings seised before Swiss proceedings issued on 4 February 2005. The Court of Appeal considered the interaction of the Lugano Convention, the Hague Convention and the CPR, and whether domestic procedural discretions can be used to affect Article 21 priority. The central question was whether an order under CPR 6.9 (and consequential effect under CPR 3.10) could or should operate to give the English proceedings Article 21 priority over already-issued Swiss proceedings.

1. Disposition: The appeal is allowed. The order below dispensing with service of the copy claim form under CPR 6.9 was ineffective for the purpose of obtaining priority under Article 21 of the Lugano Convention and, in any event, it would have been inappropriate to make it for that purpose; accordingly the English proceedings must be stayed as against the defendants under Article 21.
2. Seisin rule: The court reaffirmed the established rule that, for the purposes of the Brussels/Lugano regime, an English court is seised of proceedings against a foreign defendant only when that defendant has been validly served with the claim form (see the discussion of [1992] 1 QB 502 and [1994] 3 All ER 180) (paras [41]-[49], [50]-[56], [118]-[121]).
3. CPR 6.9 and international priority: Although CPR 6.9 (dispensing with service) can, in exceptional domestic circumstances, be used retrospectively to validate service, it is inappropriate and in many cases ineffective to invoke that domestic power for the sole purpose of altering which court is "first seised" under Article 21 where a foreign court has already obtained priority; using CPR 6.9 to "jump the queue" would subvert the mutual trust, certainty and simplicity on which the Conventions are based (paras [75]-[91], [105]-[106]).
4. Interaction with CPR 3.10: An order under CPR 6.9 dispensing with service of the claim form does not operate via CPR 3.10 to treat some other document as the claim form for the purposes of establishing seisin before a foreign court had already become seised; CPR 3.10 cannot be used to create a fiction of earlier seisin that would affect Article 21 priority (paras [94]-[101]).
5. Hague Convention and Swiss non-service: The court expressed reservations about making substantive findings on whether the Zurzach Court's removal of the copy claim form offended the Hague Convention in the absence of Swiss representations, and found the Zurzach official's conduct understandable; in any event, these considerations did not justify using domestic procedural powers to displace Article 21 priority (paras [30]-[38], [106]-[112]).
6. Practical consequence: Because the order under CPR 6.9 was ineffective or inappropriate to secure Article 21 priority, there was no remaining basis for dispensing with service; the proceedings must be stayed against the defendants in favour of the Swiss proceedings (para [113]).
7. Concurrences: Lord Justice Wilson and Lord Justice Pill concurred. Wilson LJ added no separate reasoning beyond concurrence; Pill LJ agreed with Neuberger LJ's reasoning and outcome and declined to express a view on some hypothetical Hague Convention issues left academic by the outcome (paras [114]-[122]).
8. Order: Appeal allowed; stay of the English proceedings as against the defendants pursuant to Article 21 of the Lugano Convention (formal order as in judgment below).

• Court of Appeal (Civil Division) — allowed the appeal, held that the English proceedings should be stayed pursuant to Article 21 of the Lugano Convention because the Zurich Obergericht was first seised; set aside the order under CPR 6.9 to the extent it sought to affect Article 21 priority. (This judgment)
• High Court (Chancery Division) — Peter Smith J (19 August 2005): had exercised CPR 6.9 to dispense with service of the copy claim form and declined to stay English proceedings; decision appealed to the Court of Appeal.