Phillips and Another (suing as administrators of the estate of Christo Michailidis) V Symes and Others

Proceedings become definitively pending for the purposes of article 21 of the Lugano Convention in accordance with national law, and English courts have power under the Civil Procedure Rules to treat defective service as valid.

Where domestic rules (notably CPR rr.3.10 and 6.9) permit it, the court may declare out-of-jurisdiction service effective, including retrospectively, but that power is to be exercised sparingly and only in exceptional circumstances.

The claim arose from a disputed sale of an antiquity and competing proceedings in England and Switzerland. The English claim form was issued on 16 December 2004 but an English-language claim form was omitted from the package served on the Swiss defendants on 19 January 2005. The defendants issued Swiss proceedings on 3 February 2005. The central question was which court was "first seised" for the purposes of article 21 of the Lugano Convention.

The House considered whether English law should regard seisin as occurring on issue, service, or some other event and whether the English court could, by exercising its procedural powers (CPR rr.3.10 and 6.9), declare defective service effective so as to preserve English priority.

(1) The determination of when proceedings become "definitively pending" for article 21 is a matter for national law. The House applied that principle and examined English procedural law to decide seisin under the Lugano Convention.

(2) English courts have power under CPR r.3.10 to remedy procedural errors and under CPR r.6.9 to dispense with service of a document. Those powers can be exercised so as to treat an attempted service as effective for the purpose of seisin.

(3) The court may, if necessary, make an order which has retrospective effect to validate defective service. Such an exercise of discretion is exceptional and must be sparing. It is permitted where the failure to serve caused no prejudice and where other compelling factors exist.

(4) On the facts, the omission of the English-language claim form from the package served on 19 January 2005 did not prejudice the defendants. The materials actually served included a German translation of the claim form and full particulars of claim. The errors that occurred were principally those of the Swiss authorities.

(5) Applying those principles, the House concluded that the High Court was to be treated as first seised in this matter by reason of the effective service on 19 January 2005 (and that, if necessary, the court could have exercised its CPR powers to validate that service).

(6) The Court therefore allowed the appeal, set aside the Court of Appeal's decision, and restored the first-instance orders which declared the English court first seised and permitted further steps in the English proceedings.

• House of Lords: Allowed the appeal, held English court first seised; [2008] UKHL 1.
• Court of Appeal (Civil Division): Allowed the respondents' appeal, discharged first-instance orders and stayed proceedings under article 21; [2006] EWCA Civ 654.
• High Court (Chancery Division): At first instance Peter Smith J declared the High Court seised as at 19 January 2005 and made consequential directions; [2005] EWHC 1880 (Ch).