Tavoulareas v Tsavliris

This is an appeal against the order of Tomlinson J dated 21^st March 2003, staying the claimant’s action against the first and second defendants, on the grounds that the Greek courts were first “definitively seized” of proceedings for negative declaratory relief brought by these defendants against the claimant in the First Instance Court of Piraeus. The issue arises under article 21 of the Brussels Convention, since the relevant events occurred at the end of 2001. Council Regulation No. 44/2001, which largely supersedes the Brussels Convention, only came into force on 1^st March 2002. Its terms would provide a simpler answer to the present issue (cf article 30), but would not avoid the forum shopping which is at its root. Freedom to forum shop by seeking negative declaratory relief is inherent in the European Court of Justice’s decisions in Gubisch v. Palumbo (Case 144/86), The Tatry and Maciej Rataj (Case 406/92) [1995] 1 Ll.R. 302 and, most recently, Erich Gasser GmbH v. Misat Srl (C-116/02), where the court declined to reconsider its previous jurisprudence in this regard.

The claim relates to amounts allegedly due (primarily if not exclusively advances) made under agreements made in 1991. The present English proceedings were issued on 7^th November 2001 and immediate steps were taken to serve both defendants at their English addresses. It is accepted that they were properly served on, respectively, 24^th December and 23^rd November 2001. However, on 8^th November 2001, as the judge put it, “the defendants retaliated by issuing an action” before the Piraeus court. The Piraeus proceedings assert duress and seek, as the judge put it, “effectively …. a declaration that the Tsavliris interests have no further liability to the claimant or to the companies in which he is interested ….”.

The claimant resided at all material times in Florida. The document lodged with the Piraeus court on 8^th November 2001 to initiate the Greek proceedings alleged that the claimant was resident in London, giving a Regent’s Park address where the claimant ceased to reside in 1992. He has lived in the USA since (at least) 1995. The claimant’s case is that the defendants knew that he lived in the USA. The claimant’s solicitor said this in a witness statement dated 28^th March 2002:

Article 134 of the Greek Code of Civil Procedure regulates “service on persons or entities domiciled out of the (Greek) jurisdiction” in the following terms:

The Piraeus proceedings were served on the Public Prosecutor under article 134(1) on 19^th November 2001, and as a result of this subsequently sent to or attempted to be served at the Regent’s Park address, where unsurprisingly (it seems, although this is not formally in evidence) no reply was obtained. The claimant in fact received notice of the Greek proceedings by a different route, on 31^st December 2001, when he saw a letter sent to his English solicitors challenging the English jurisdiction and enclosing details of the Greek proceedings. By then, the Greek court had fixed 17^th January 2003 as its first hearing date, so the claimant had ample time, if he wished, to appear in and defend the Greek proceedings. Save for the steps taken through the Public Prosecutor, no attempt has, it appears, ever been made to serve the claimant in person or in the USA, where he resides.

The claimant’s case is however that the English proceedings have priority under article 21, which reads:

It is common ground, in the light of the authorities cited in paragraph 1 above, that the English and Greek proceedings involve the same subject matter and are as between the claimant and the defendants between the same parties. It is common ground that there is authority binding on us that the English courts only became “seized” of the present proceedings for the purpose of article 21 as against any defendant as and when he was served, i.e. on respectively, 24^th December and 23^rd November 2001: Dresser U.K. Ltd. v. Falcongate Freight Management Ltd. [1992] QB 502. The question is whether the Greek courts became seized for that purpose at an earlier date. The only two dates relied on are 8^th and 19^th November 2001. The judge considered evidence of Greek law put before him in purely documentary form. He was not prepared to accept that there was any relevant seizure at the first date (paragraph 26). However, he concluded that there had been as at the second date (paragraphs 30.32 and 33).

At the heart of the issue in this case lies another decision of the European Court of Justice, Zelger v. Salinitri (Case 129/83)[1984] ECR 2397. The question posed by a German court in that case was:

In the case of Dresser, the Court of Appeal considered what that meant in the context of English procedure. Bingham LJ, giving the leading judgment, pointed out at p.514G-515B:

Counsel presented the court in Dresser with examples of countries (France and Belgium in particular) in which it was suggested that the courts would regard themselves as “seized of proceedings” upon their service on an officer of justice or huissier for onward delivery. Bingham LJ’s response to these, at p.522, is also of interest:

The Greek Civil Code of Procedure contains provisions regarding the issue and service of proceedings and lis pendens, as follows:

Tomlinson J considered the expert evidence adduced before him regarding these articles. The witnesses’ written views were expressed in English, rather than their mother tongue. Without oral evidence or cross-examination, the judge found, understandably, that the exercise with which he was faced was difficult and unsatisfactory. We are in no better or worse position than he was, which means that we must, so far as necessary, make up our own minds what the effect, as well as the significance, is of the evidence before us about Greek procedural law.

Tomlinson J’s essential reasoning was, as I see it, this. The mere filing of the suit could not suffice to create pendency. Some form of service was probably required to complete pendency. Under Greek law, such service could be effected on the Public Prosecutor. Pendency was therefore established as at 19^th November 2001, at latest. The Greek proceedings thus had priority under article 21.

The appellant placed great weight before Tomlinson J (as before us) on Council Regulation (EC) No 1348/2000. This entered into force on 31^st May 2001 and was therefore in force at all times relevant to these proceedings. As a Council Regulation, it is, without more, also binding in its entirety and directly applicable in all Member States of the European Union: see its article 25. It provides:

Articles 13, 14 and 15 deal with cases in service by diplomatic or consular agents, service by post and direct service may be possible, and are not presently material. Article 19, which appears in Chapter IV (Final Provisions) is however of interest:

The judge treated articles 7 and 9 of the Regulation as irrelevant to a question whether there had been sufficient service under Greek law in order for the Greek proceedings to become pending. He distinguished Molins plc v. GD SpA [2000] 1 WLR 1741 (CA) and Phillips v. Symes[2002] 1 WLR 853 (Hart J.) as cases concerned solely with the validity of the method(s) by which service could take place abroad, in circumstances where it was common ground that some form of transmission of documents to a defendant’s foreign residence or domicile was required. The issue presently before the court was, in contrast, whether any form of transmission or service abroad is required at all in order for the Greek proceedings to become definitively pending (or whether it suffices that the documents reached the Public Prosecutor).

Mr Shepherd QC for the appellant claimant repeats as his first and more fundamental submission that the judge erred in relation to the Regulation. However, he continues to challenge the judge’s reasoning and conclusion on pendency under article 21, quite apart from the Regulation. I take his submissions in that order.

Looking at the evidence and materials relating to Greek procedural law, it is clear that, for Greek domestic purposes, some form of service is as a general rule required for proceedings to become pending and that, where use is made of article 134, such service is treated as occurring on the receipt of documents by the Public Prosecutor. The issue is how far the same position applies for the purposes of article 21 of the Brussels Convention. In paragraph 29 of his judgment, the judge quoted passages from the first opinion dated 21^st June 2002 defendants’ Greek law expert, Professor Antapassis. But the judge’s quotation was incomplete, and its incompleteness obscured the fact that the first paragraph quoted represented the Professor’s preferred opinion, while the next two paragraphs represented no more than an alternative, if the Professor’s preferred opinion were to be rejected. Because the judge did not appreciate this, he also found it unclear whether Professor Antapassis was proffering 8^th or 19^th November 2001 as his preferred date of seisin - see paragraph 30 of the judgment. In fact, Professor Antapassis made clear that he was proffering 19^th November 2001 as his preferred date, as the following fuller quotation shows:

It is of interest that Professor Antapassis suggests that article 21 must be given “an independent community meaning” (a thought not too distant from that expressed in Dresser), and that (in that context apparently) he also prefers the view that both issue and service must be required. Only as a fall-back, contrary to his preferred view, does he examine the position solely by reference to Greek internal law. But Greek internal law does not contain any concept of definitive pendency, and it is evident that Greek law and Greek courts (like English law and courts prior to Dresser) have never had occasion to consider what such a concept might involve in the context of Greek procedure for the purpose of article 21 of the Brussels Convention. No authority was at all events put before the judge or before us in which they have done so. Like Professor Antapassis, I do not think that the matter can be viewed purely by reference to the circumstances in which proceedings may be described as pendent for Greek domestic purposes.

Professor Antapassis says that, as a matter of Greek domestic law, the effect of article 221 is that proceedings may be considered pending retrospectively from the date of filing of the writ, once service has been effected. See the citation above from his opinion of 21^st June 2002, as well as paragraph 7.B of his statement dated 19^th December 2002 and his citation of Vathrokokilis’s Code of Civil Procedure, Art. 215 para. 46 (p.114 in the Greek Authorities bundle). Mr Tzoumas of Aristides Economides & Co., the defendants’ other expert, makes the same point:

However, it is impossible to accept that the Greek proceedings were, for the purposes of article 21 of the Brussels Convention, definitively pending from 8^th November 2001 (when they were filed). Article 21 requires a simple chronological approach, which is inconsistent with retrospectivity. That is obvious in principle, and was stated in Dresser, where Bingham LJ said:

The Greek expert evidence discloses that there are different theories regarding litispendency under Greek domestic law. Mr Tzoumas of Aristides Economides & Co. (also instructed by the defendants) in an opinion dated 11^th July 2002 and Professor Antapassis in a witness statement dated 19^th December 2002 described two competing theories of the position under Greek internal law prior to service. The theoretical difference between them appears to be as to the “existence” (or, more difficult still for an English reader, “substance”) of the proceedings before service. The practical difference may be whether a Greek court would be obliged of its own motion to refuse to take any further step, pending service, if it became aware that there had been no service, or whether it would only be obliged to take note of lack of service if and when this was brought to its attention by a party able to show that it had been prejudiced thereby. Professor Antapassis and Mr Tzoumas prefer the theory according to which the proceedings do exist or have some “substance”, even though no service has yet been effected. That, I should say, is in my view also the effect of (poorly translated) decisions of the Piraeus and Aegean Courts of Appeal (315/1987 and 209/2000). Although these decisions state that service is necessary for the operation not only of the “substantive legal effects”, but also for the lawful summoning of the defendant and setting down in the cause list, they go on to make clear that failure to serve or invalid service only renders the summonsing or trial “inadmissible” in the light of the preconditions of article 159(3), and that failure to serve can “in view …. of the purpose of service, which lies in notification ….” be

However, Mr Papadimitriou distinguishes the position in relation to proceedings for service on a foreign defendant addressed to an incorrect foreign address. He relies on the terms of article 134(2), and cites a series of authorities, starting in the Supreme Court of Greece in 1978 (Case 398/1978 [NoB 27,180] (Greek Authorities bundle p.5) and continuing in the Athens Court of Appeals (Cases 6999/1990 [Dik/ni 31,1518]; 8525/1987 [EEN 1987,873]; 2036/1979 [NoB 29,292]; and 1593/70 [Arm24,102]) (Greek Authorities bundle pp.7, 8, 9 and 12). These authorities all speak of proceedings requiring foreign service as “void” when the address for service given was inaccurate, so as to make it impossible for the document to be forwarded to the relevant person.

One of the reasons that the judge gave for preferring Professor Antapassis’s evidence (and apparently for preferring it generally) was that Mr Papadimitriou simply went on to say, in this connection, that:

The point made by Professor Antapassis in the first of his two paragraphs just cited is unconvincing. The second paragraph does not address Mr Papadimitrious’s distinction between purely domestic proceedings and proceedings requiring service under article 134. On the other hand, it is also right to say that the cases cited by Mr Papadimitriou (although they cannot be dismissed simply as “old”, as Mr Irvin sought to) do not appear specifically to address the question or relevance of detriment. Article 159(3) seems as a matter of language capable of covering the present situation (while article 159(1) and (2) appear irrelevant). The upshot is that I am by no means as certain as the judge that the right view of Greek domestic law is that proceedings requiring service under article 134 are subject to article 159. However, I am prepared for present purposes to assume that they are, and to proceed on that basis. I cannot however derive from Mr Papadimitriou’s manner of expressing himself set out at the beginning of paragraph 24 above any support for a view that his evidence should be generally discounted in other areas. The Greek authorities in this whole area are very open to differing analyses.

Assuming, for the present, that Professor Antapassis’s and Mr Papadimitriou’s preferred theory (mentioned in paragraph 22 above) is generally correct and relevant under article 134 for the purposes of purely domestic law, that does not in any way determine the present issue whether the proceedings were definitely pending for the purposes of article 21 of the Brussels Convention. The mere “existence” of proceedings is clearly insufficient to mean that they are definitively pending. The European Court in Zelger v. Salinitri and the Court of Appeal in Dresser had no difficulty with the idea that proceedings could exist, in some sense or other, from the time the claimant first applied to the court, without necessarily being definitively pending under article 21. Nor can the possibility that the court might, despite lack of service, refuse to set aside proceedings in circumstances where a defendant had had adequate notice and opportunity to defend himself suffice to make proceedings definitively pending at a time before there had yet been any such notice or opportunity – see again Molins plc v. GD SpA, paragraphs 37-39. However, I would not distinguish (and I do not think that this Court did on the facts in Molins itself distinguish) between void and voidable proceedings in the way which HHJ Diamond QC in a previous case cited in paragraph 38 in Molins might appear to envisage. The question whether proceedings are “definitively pending” is, as I have said, a different question from the question whether proceedings “exist” at all or are a complete nullity. So, for the reasons given in paragraphs 18-21 above, the Greek proceedings could not on any view be regarded as pending under article 21 prior to 19^th November 2001.

The next question is whether Council Regulation 1348/2000 has any bearing on the question when the proceedings became definitively pending for the purpose of article 21 of the Brussels Convention. Greece gave notice under article 23 that it would not be derogating from article 9(1) and (2) of the Regulation (OJ C 151, 22.5.2001, p.4 et seq.). The claimant’s case is that, since England was the Member State addressed by the documentation delivered to the Public Prosecutor under article 135 for service here, the Greek proceedings could thus only be regarded as served if and when they were served in accordance with the law of England. No such service ever took place; and the English defendants submit that the Greek proceedings cannot have become definitively pending in Greece until the claimant had (at least) received some form of notice about them, which was not until after the English action had become definitively pending.

If the Regulation is irrelevant as the judge held, this could be because the present case was not of a nature falling within the Regulation, i.e. was not a civil matter “where a judicial …. document ha[d] to be transmitted from one Member State to another for service there” or because the Regulation has no bearing at all on litispendency under article 21. The judge’s approach was, I think, along the latter lines.

A third suggested reason why the Regulation should be viewed as irrelevant featured prominently in the defendants’ case below and before us, and had Professor Antapassis’s support. It was that the claimant, on his own case, was not domiciled or resident at any material time in England, the Member State to which service was directed under article 134. On this basis, it would, in the view of Professor Antapassis, be “an abusive tactic” for the claimant to argue that service on the Public Prosecutor was not good service for the purposes of article 21. Professor Antapassis’s argument amounts, in my view, to trying both to have the cake and eat it. It is the defendants who invoked article 134 and asserted that the claimant was available for service at an English address. Nothing in the Regulation limits its application to situations in which the proposed defendant to Greek proceedings is actually domiciled, or may actually be found at the address, in the country where the proposed claimant asserts that he can be found. Assuming (as I do for present purposes) that the delivery to the Public Prosecutor of a document with an inaccurate address would nonetheless be valid service under Greek domestic law, its delivery seems to me an equally valid invocation of the Regulation. The consequence is that the validity and date of service fall to be determined according to the Regulation in all European Member States in which the Regulation is in force.

I turn therefore to consider whether the present case is of a nature falling within the Regulation, i.e. is a civil matter “where a judicial …. document has to be transmitted from one Member State to another for service there”. It may be argued that, because under Greek internal law, service is treated as effected when the proceedings were served on the Public Prosecutor, this is not a case where a judicial document had to be transmitted from one Member State to another “for service there”. I see no merit in any such argument. The Regulation must be given a sensible international meaning consistent with its harmonising aims. It is clear that it is directed to precisely the same subject-matter as article 134 of the Greek Code of Civil Procedure – the transmission of a judicial document from one state to another for service there. Article 134 is headed “Service on person/legal entities domiciled out of the jurisdiction. Further, while article 134(1) speaks of service on the Public Prosecutor, and while Greek internal law may by itself treat this as important for certain purposes, article 134(2) and (3) both speak of service in the sense of the service to be effected abroad on the defendant there. A construction of the Regulation whereby its terms could simply be avoided by treating the relevant service as being on the Public Prosecutor is also inconceivable. Finally, I note that by communication under article 23 of the Regulation, Greece has designated the Public Prosecutor’s offices as the relevant “transmitting agency” under article 4 (cf OJ C 151, 22.5.2001, p.4 et seq.).

The final question, whether the Regulation is relevant in the present context of litispendency under article 21, goes to the heart of the appeal. On the one hand, it can be said that the Regulation’s obvious purpose is to develop the single European legal space (recital 1) and standardise “the material date for the purposes of service” (recital 11). The Regulation was drafted with the Brussels Convention in mind (cf recital 12), and so as, in particular, to prevail over the Protocol to that Convention, article IV of which contains provisions relating to the manner, even though not the date, of service. This court has thus held in Molins plc v. GD SpA that, where service is required by a foreign law, the decision whether there has been a valid method of service depends not on the foreign law, but on the application of the Regulation. Aldous LJ said this at paragraph 40:

In response, it may be objected that definitive pendency under article 21 need not necessarily depend on service - after all, the European Court in Zelger v. Salinitri refused the Advocate General’s invitation to hold that it should – and, so, that a national legal system may be definitively seized of litigation in the light of its internal procedural rules, without insisting on service at all. If that is so, then it may be said that, even in cases where service would involve the transmission of documents abroad in accordance with the Regulation, it remains possible for the Greek courts to be regarded as definitively seized of a case on some other basis; and that, for the same reason, it may not follow that, because the Greek internal procedural rules link litispendency to “service” (satisfied prior to the Regulation by service on the Public Prosecutor), the link must now be taken to be to service under the Regulation.

The fact remains that the structure of Greek procedural rules (articles 215 and 216 in particular) does make service a pre-condition to litispendency, even under purely domestic law, while the Regulation is intended to introduce uniform procedures and principles regarding service at an international level. The Greek courts have not yet themselves had to consider when proceedings may be said to be definitively pending before them for the purposes of article 21 in the light of the Regulation. But, when and if they do so, they may also be expected to take a similar approach to that in Dresser, and to aim at the conclusion that best fits the underlying purposes of the Convention. That may, as Bingham LJ said in Dresser, mean reconsidering national procedural rules in the light of the Convention (or now the Convention read with the Regulation). It also seems consistent with Professor Antapassis’s preference for (though not his suggested application of) the view that “the interpretation of the terms of Art. 21 should be made independently ie the relevant terms must be given an independent community meaning”. But, whether or not that is the correct understanding of what Professor Antapassis meant, there seems to me no difficulty about reading litispendency under articles 215-6 of the Greek Code of Civil Procedure as requiring service in accordance with and in the sense of the Regulation before Greek proceedings could be said to be definitively pending for the purposes of article 21, and it would seem to me inappropriate to read it in any other sense for the purposes of article 21.

That conclusion is supported by Mr Papadimitriou in both his opinion and his statement. Professor Antapassis did not address the Regulation at all in his first opinion. He does not seem to me to address the present point directly in his statement. In paragraph 7.A of his statement, he analyses the position on the basis of his preferred position that litispendency under article 21 has an “independent community meaning”, whereas in paragraph 7.B he takes the alternative view that it is a matter to be determined purely by the lex fori (meaning here the purely internal procedural law of Greece). In the former context, he simply asserts that litispendency must continue to depend on service on the Public Prosecutor. His further point that the Greek courts could proceed without any certificate of service does not seem to carry matters far. His submission that the Greek courts should decide whether they were first seized cannot be accepted: see Zelger v. Salinitri, paragraph 15 and Grupo Torras [1996] 1 Ll.R. 7 (CA), 20.

The relevance of the Regulation to any conception of definitive pendency for the purposes of article 21 of the Convention is in my view also confirmed by article 19 of the Regulation, although this article was not highlighted before us and I would reach the same result without it. Article 19(1) prevented the Greek courts from giving judgment until it was established that service had been effected by a method prescribed by English law for persons in England or that the documentation commencing the Greek action was “actually delivered to [Mr Tavoulareas] or to his residence by another method specified by this Regulation”. Neither condition was ever satisfied in this case. Greece has given notice under article 23 in terms indicating that its courts may (though not must) give judgment in a case where all the conditions specified in article 19(2) are satisfied (OJ C 151, 22/5/2001, p.4 et seq.). But under the conditions in article 19(1) judgment can only be given in the absence of a certificate of service or delivery under article 19(1) after the expiry of a period of at least six months since the transmission of the documentation under the Regulation. Here, therefore, the Greek court was throughout the period prior to service of the English action prohibited by article 19 from giving any judgment against the English claimant. The effect of the provisions of article 19 is in my view to reinforce the conclusion that the Greek court cannot sensibly be regarded as having been “definitively seized” of the Greek proceedings for the purposes of article 23 at any time before the English action was served on both the English defendants.

Even if one had (contrary to my view) to treat the issue of definitive pendency under article 21 as determined by the view which a Greek court would take about pendency in an entirely domestic context, I would reach a similar conclusion. Suppose for example an issue of priority between one set of Greek proceedings served in person in Greece on 30^th June and another set of Greek proceedings where service had to be made out of the jurisdiction, and the documents reached the Public Prosecutor on 20^th June, but were not served on the defendant abroad until 20^th July. What is involved in “service” under Greek law where documents have to be transmitted abroad appears in the special regime of article 134. That regime is now directly addressed and, so far as inconsistent, superseded by the Regulation. On that basis, I would consider the better view to be that, even in an entirely Greek domestic context of the above nature, the date of service defined by the Regulation should be taken as the date of service under article 134 and so for the purposes of articles 215 and 216, when considering litispendency. That is again consistent with Mr Papadimitriou’s opinion and statement. Professor Antapassis invokes Mr Papadimitriou’s statement that “matters concerning the validity of service, such as …. the date on which the documents should be served is left to the national law”. Mr Papadimitriou was however clearly referring to article 9(2) of the Convention. I have already covered Professor Antapassis’s further miscellaneous points: the retrospective effect of service under Greek law, the relevance of notice of the proceedings acquired without service and the suggested inapplicability of the Regulation because the claimant (the Greek defendant) was not actually domiciled or resident in England.

I therefore conclude that, for the purpose of deciding whether the Greek courts were definitively seized of the Greek proceedings, the appropriate conclusion, having due regard to both Greek procedural law and the Regulation, is that they were not definitively seized unless and until either (a) service was effected in accordance with the Regulation or (b) (at the very least) the claimant (the Greek defendant) obtained notice of the Greek proceedings in such time as to enable him to defend them. I have put the alternative introduced by (b) in the most favourable way in which it can be put from the English defendants’ viewpoint. It is unnecessary on this appeal to consider whether, in the light of article 19 of the Regulation, definitive pendency should be regarded as even further postponed.

On this basis, since there has never been any service of the Greek proceedings in accordance with the Regulation, the English defendants’ only hope of establishing that the Greek courts were definitively served prior to the English courts would have been to show that the claimant had notice of the Greek proceedings and an opportunity to defend them prior to service on the defendants on the English proceedings. That was not however the case, since the claimant did not know of the Greek proceedings until 31^st December 2001, well after service on the defendants of the English proceedings. The claimant’s appeal should be allowed and the English proceedings restored accordingly.

I will however also consider the position quite apart from the Regulation, since I am satisfied that the appeal should also succeed on that basis. For this purpose, I continue to assume that the right view of Greek domestic law is that proceedings requiring service under article 134 are subject to article 159 (cf paragraphs 23-25 above). Even so, the present Greek proceedings served on the Greek Public Prosecutor gave an incorrect address for service in England on the defendant. The Greek authorities cited by Mr Papadimitriou establish, at the least, that that was a very serious procedural defect in terms of article 134(2). There could be no certainty that any step taken in the Greek proceedings thereafter would remain valid, or that the proceedings would be able to continue to any sort of conclusion. That would be uncertain, and the proceedings as a whole and any step taken in them would remain vulnerable to challenge under article 159(3), because they had not been duly addressed to or served on anyone. Their vulnerability to challenge could only be removed with time, either by the defendant being found and duly served or by the defendant acquiring notice of the Greek proceedings and having an opportunity to defend them. Both Mr Tzoumas (at Appeal Bundle p.213-4) and Professor Antapassis (in his opinion at Appeal Bundle p.206 and in paragraphs 6 and 7.B of his statement dated 19^th December 2002) make clear that whether or not the proceedings and any steps taken in them could be maintained or should be set aside would depend on whether or not the lack of service led to prejudice by way of lack of notice and inability to defend.

That being so, I cannot see how, on any proper approach to the concept of definitive seizure for the purposes of article 21 of the Brussels Convention, the Greek court can be regarded, or could regard itself, as having been definitely seized, at any time before either the Greek proceedings were properly served or the defendant had had notice of them and an opportunity to defend. The Greek doctrine, whereby inability to prove irrevocable prejudice precludes a Greek defendant from complaining of the improper addressing of the proceedings or lack of service, represents, in effect, an alternative means by which Greek proceedings may become definitively pending. But they cannot be definitively pending during a period when steps could not be taken to progress them without such steps being liable to be set aside because of the lack of service. In the present case, it was not, therefore, before 31^st December 2001 (at the very earliest) that they can be said to have become definitively pending. The reasoning in Molins plc v. G.D. SpA at paragraphs 37-39, considered in paragraph 26 above, is in my view also generally supportive.

On this ground also, therefore, as well as on the basis mentioned in paragraphs 33-38, I would allow the appeal and restore the English proceedings.

I agree with the judgments of Lords Justice Mance and Lord Justice Thorpe.

Tomlinson J reached the decision that he did with great reluctance for the simple reason that the result which it produced was manifestly undesirable. He felt driven to his conclusion by the evidence as to the internal law of Greece. Tomlinson J was faced with what seems to me an almost impossible task. There were no less than six written statements as to the law of Greece. There would have been less had the parties been confined to one expert each. For reasons which are not clear to me, the defendants relied on two experts to cover the same ground. What is clear to me is that none of the three experts were entirely fluent in English and all of them were partisan. With that material and without oral evidence, and particularly cross-examination, the judge was indeed faced with a dire task.

The essential question that he had to determine was whether the process commenced by the defendants in Greece on 8 November 2001 was litispendens prior to service of the earlier issued London Claim Form on the claimant. For the judge found that the mere issue of the proceedings in Greece did not constitute a lis pendens. Service was a necessary additional ingredient. So the judge’s concentration was upon the provisions of the Greek civil code directing service out of the jurisdiction.

In my judgment Tomlinson J searched the wrong area for solution. I accept Mr Shepherd QC’s submission that an application for a stay under Article 21 of the Brussels Regulation imports the provisions of Article IV of the Protocol. Thus the determination of the question whether proceedings have been served requires the application of the relevant international conventions rather than the internal law of the member state in which the proceedings were issued.

The proceedings with which this appeal is concerned were issued on 7 and 8 November 2001 respectively. Thus any question as to the date of service is to be determined by Council Regulation (EC) No 1348/2000, having effect from 31 May 2001. Under Articles 1, 2, 4 and 7 of the Regulations the proceedings issued on 8 November had to be transmitted by the Greek transmitting agency (seemingly the Ministry of Justice in Athens) to the receiving agency, the Senior Queen’s Bench Master in London. Service on the public prosecutor of the court of issue is not an arguable alternative or substitute for the requirements of the Regulation. Accordingly such service did not render the Greek court seized nor was any other step taken in Greece to render that jurisdiction seized prior to completion of the service of the English writ on 24 December 2001.

Mr Irvin sought to escape the plain effect of Article IV of the Protocol and of the Service Regulations by submitting that Mr Tavoulareas was not domiciled or resident in a Member State at the relevant date. The domicile or residence of the person to be served does not in my judgment require investigation. The party issuing elects the place of service and the defendants asserted that at the date of issue they believed Mr Tavoulareas to be domiciled and/or resident in London. That belief and consequent election engages Article IV and the Regulation.

The dispute in this and in many earlier cases might have been avoided had the Brussels Convention defined what was meant by “first seized” in Article 21. At least the more modern instruments on jurisdiction generally (Council Regulation (EC) No. 44/2001) and in matrimonial matters and in matters of parental responsibility (Council Regulation (EC) No. 1347/2000 not only establish a lis pendens rule in Article II but define when a court shall be deemed to be seized for the purposes.