Tavoulareas v Tsavliris & Ors

Recognition of a foreign judgment under Article 34.2 of the Judgments Regulation must be refused where the judgment was given in default of appearance and the defendant was not served with the document instituting proceedings in sufficient time and in a legally recognised manner to arrange a defence. Mere notification of proceedings is distinct from service. A defendant’s limited participation in a jurisdictional or adjournment application does not necessarily prevent reliance on default of appearance where the defendant did not defend the merits. The relevant position under Article 34.2 is assessed when the recognition court decides the application, including whether proceedings challenging the judgment have by then been commenced.

The defendants sought recognition in two related English actions of a negative declaratory judgment given by the Piraeus Multi-member Court of First Instance concerning liabilities arising from the salvage of the tanker Atlas Pride. The Greek proceedings had been pursued in the absence of Mr Tavoulareas, and the Greek court recorded that the defendants were absent and tried in default.

Earlier English proceedings concerned which court was first seised. The Court of Appeal held that the English court was first seised in the first action and that the Greek proceedings had not been properly served. A later judgment in the Greek proceedings was then relied upon as a defence by recognition under Article 33 of Council Regulation (EC) No. 44/2001. The central issue was whether any of the Article 34 grounds prevented recognition.

1. Recognition refused. The applications under Article 33.2 of the Judgments Regulation were dismissed because the conditions in Article 34.2 were satisfied.
2. Article 34.2 contains cumulative requirements. The judgment must have been given in default of appearance; the defendant must not have been served with the document instituting proceedings, or an equivalent document, in sufficient time and in such a way as to arrange a defence; and the defendant must not have failed to commence proceedings to challenge the judgment when able to do so. The relevant date for the final requirement is the date when the recognition court decides the application, not the date when recognition was sought.
3. The Greek judgment expressly stated that the defendants were absent and were tried in default. Mr Tavoulareas’s earlier, limited participation in a joint application to adjourn the Greek proceedings did not amount to an appearance defending the merits and did not prevent reliance on Article 34.2.
4. Service under Article 34.2 is a legal concept requiring a framework of procedural rules. It is not synonymous with notification or delivery. The letter sent to English solicitors in connection with the English jurisdiction application, enclosing a copy of the Greek initiating document, was not service of the Greek proceedings. The only attempted service through the Greek Public Prosecutor had failed. The Court of Appeal’s earlier determination that the Greek proceedings had not been served was binding in these proceedings.
5. The court therefore did not need to decide Articles 34.1 or 34.3. It nevertheless concluded that the evidence was insufficient to establish that recognition would be manifestly contrary to public policy, and that the English and Greek judgments were not irreconcilable.

• High Court (Commercial Court): the earlier English proceedings were stayed in favour of the Greek proceedings, but that decision was later reversed.
• Court of Appeal: the English court was held to be first seised and the Greek proceedings were held not to have been properly served. The relevant citation was [2004] EWCA Civ 48.
• High Court (Commercial Court): the present court dismissed the applications for recognition of the Greek judgment.