Arbuthnot Latham & Co Ltd v M3 Marine Ltd & Anor

For the purposes of determining which court was first seised, receipt of a document by the authority responsible for service may occur when the document is received by fax or post. A requirement that both methods must be used should be clearly expressed and is not to be inferred from the wording of the relevant administrative information. The interpretation must also reflect the Service Regulation’s objectives of speed and efficiency. A fax may therefore constitute receipt under Article 30(2) where it is an available, reliable and legible means of transmission.

The claimant brought English proceedings for sums allegedly due under loan and overdraft facilities secured against a luxury yacht, together with guarantees. The defendants had commenced proceedings in France while the yacht was under arrest and contended that the French court was first seised.

The English claim was issued on 26 October 2012. The French writ was faxed to the Foreign Process Section on 24 October and sent by post on 24 October, arriving on 30 October. The central issue was whether receipt by fax alone was sufficient under Article 30(2) of the Judgments Regulation, or whether both fax and post were required.

1. Construction of Article 30(2). The French proceedings were governed by Article 30(2), because the writ had to be served before being lodged with the French court. The relevant event was receipt by the authority responsible for service, namely the Foreign Process Section.
2. Meaning of receipt. The Manual’s statement that documents would be transmitted by fax and post was capable of either interpretation. It did not clearly impose a cumulative requirement. If both methods were mandatory, that would be expected to be stated expressly.
3. Context and purpose. The Service Regulation emphasised speed, efficiency and the use of appropriate means of transmission. Fax was generally reliable and legible, provided a timed receipt, and was permitted for service of a claim form under CPR 6.3. Requiring a second receipt by post could increase uncertainty rather than promote it.
4. Practice and evidence. The revised acknowledgment of receipt and the Senior Master’s annotation were the best evidence of the Foreign Process Section’s view and practice. Evidence concerning the understanding of the French bailiffs and lawyers was equivocal or disputed. The question of receipt under Article 30(2) was an autonomous matter of interpretation.
5. Authority and outcome. The approach in Tavoulareas v Tsavliris [2006] 2 CLC 1034 supported a construction of service provisions that avoided a mismatch between jurisdiction and recognition. Receipt by fax alone therefore sufficed. The French court was first seised, and the English proceedings were stayed under Article 27.