Nussberger & Anor v Phillips & Anor

Insofar as the claimants’ first point involves departing from the clear principle established in the Sargasso case, I would not be prepared to accede to it, unless satisfied that there had been some subsequent change in the law. It is argued by Mr Millett that the statements I have quoted from the judgment of Steyn LJ were strictly obiter. I am not convinced that that argument is right, but it is pointless to consider it, because, even if the statements were obiter, I think it would be highly undesirable, indeed simply wrong, to depart from the clear and authoritative rule laid down in that case. Steyn LJ’s unequivocal views were shared by the other two members of the court, they have not been treated as being other than authoritative in this jurisdiction short of the House of Lords, and they have no doubt been acted on in many subsequent cases. These points are reinforced by “the importance of certainty” in this area.

Nonetheless, Mr Millett’s argument has considerable practical attraction, quite apart from its basis in legal theory (as discussed by Lord Hoffmann in the Canada Trust case referred to below). First, at least so far as this case is concerned, it seems odd that the Swiss courts should be seised of proceedings as soon as they are issued in Switzerland, whereas English courts are not seised of proceedings on issue, but only when the claim form is served. On that basis, Bingham LJ’s tie-break is fought out on a very sloping tennis court, scarcely consistent with the spirit of the level playing field envisaged by the CPR. Secondly, it will be a very rare case where there can be any doubts as to when the Senior Master was provided with documents for service, or, indeed, about the identity of those documents. There is much more room for doubt in an English court as to whether, and with what documents, a defendant was served abroad.

Thirdly, as Mr Millett points out, the rule he advocates would avoid the problem which would arise if those responsible for serving the document abroad did not comply with their obligations. The rule laid down in the Sargasso case seems potentially unfair on a claimant, given that he has no say or control over how and when documents are served under the Hague Convention, unlike in the case of domestic service (see CPR6.2 to 4).

Further, the Brussels Convention now no longer applies in any EU member state (apart from Denmark), having been replaced by Council Regulation (EC) No 44/2001 (“the 2001 Regulation”), which thus applies as between twenty-four of the twenty-five EU member states. The 2001 Regulation unifies the seisin rule through Article 30, which states that seisin occurs in the court of any contracting state “when the document instituting the proceedings is lodged with the court” provided that the claimant does not fail to take steps to serve the defendant appropriately.

However, these reasons do not persuade me that we should adopt Mr Millett’s argument. The approach laid down by Bingham LJ in the Dresser case, effectively transmuted into an invariable rule by Steyn LJ in the Sargasso case, is clear. In their judgments, they refer to the court being seised of proceedings against foreign defendants only “when [those] defendants are served” or “when the defendant has been served”, and that must be a reference to service with the writ (now, of course, no doubt for good reasons, the claim form). The provision of documents to the Senior Master is for the purpose of service on the defendant; ex hypothesi it appears to me that the provision of documents to the Senior Master for that purpose cannot of itself be service on the defendant concerned.

Mr Millett suggests, however, that the rule established by the decisions in the Dresser and Sargasso cases must be reconsidered in the light of two subsequent developments, namely:

Mr Millett’s first argument is that the decision of the House of Lords in the Canada Trust case entitles, indeed requires, this court to reconsider the test for seisin laid down in the Dresser and Sargasso cases.

In his speech in the Canada Trust case, at 11B to 11F, Lord Steyn indicated that, although the decisions in the Dresser and Sargasso cases had been subject to some adverse criticism, that criticism might not be justified, and, more importantly for present purposes, that the Canada Trust case was not an appropriate occasion for the House of Lords to consider the point. At 11G, he described the rule established in the Dresser case, as approved and strengthened in the Sargasso case, “as correctly stat[ing] the present practice and law in England”. Unless the other speeches can be shown to be inconsistent with that observation, it renders it, in my opinion, even more inappropriate than it otherwise would be for this court to depart from the view expressed in the Sargasso case.

In his speech, Lord Hoffmann considered the question of when the English courts are seised of proceedings in a stimulating and illuminating discussion at 15G-21E. As Mr Millett says, that discussion indicates severe doubts on the part of Lord Hoffmann as to much of the justification advanced by Bingham and Steyn LJJ for the “date of service” rule, and a degree of support for the rule now propounded on behalf of the claimants. Thus, at 18D-E, Lord Hoffmann referred to “the fact that in some jurisdictions, ‘service’ did not necessarily mean personal service. It could be simply the delivery of the document for service to an official of the court.” Although the other three members of the committee expressed some provisional support for Lord Hoffmann’s views, they agreed with Lord Steyn’s speech, suggesting that the issue discussed by Lord Hoffmann might well be fit for consideration on another occasion.: see at 23D (per Lord Cooke of Thorndon) 26B (per Lord Hope of Craighead) and 26D (per Lord Hobhouse of Woodborough).

In these circumstances, it seems to me that the position is this. The House of Lords in the Canada Trust case has plainly not over-ruled or even, in the case of the majority, reconsidered the rule laid down in the Dresser and Sargasso cases, but there is reason to think that, in an appropriate case, it may be prepared to consider whether or not to uphold the rule. This view appears to be reinforced by observations in [50] to [53] in the judgment of this court in Knauf UK GmbH –v- British Gypsum Ltd [2002] 1WLR 907.

If Mr Millett’s second argument is to succeed, the CPR would have to make it clear that service on a defendant out of the jurisdiction was deemed to be effected when the claim form was lodged with the Senior Master before we could be justified in departing from the decisions which I have been discussing. In my view, analysis of the provisions of CPR6 leads to the conclusion that, as one would expect, a foreign defendant is not served with documents under the Hague Convention until he receives those documents.

CPR6.7(1) is concerned with “Deemed service”, and it provides that a “document served” by “[d]elivering [it] to or leaving it at a permitted address” is “deemed to be served” on “the day after it was delivered to or left at the permitted address”. This rule follows the rules relating to methods of service, and is in Part I of CPR6, “General Rules about Service”. The “Special provisions about service out of the jurisdiction” are in Part III of CPR6.

CPR6.19 permits a claim form to “be served on a defendant out of the jurisdiction” without further permission where it would be allowed under the 1992 Act, which would include any case governed by the Hague Convention. The following provisions, CPR6.20 to 6.31, govern the procedure for service of proceedings out of the jurisdiction. CPR6.25(1) stipulates how “the claim form may be served” where “a claim form is to be served on a defendant in any country which is a party to the Hague Convention”. CPR6.26 applies where service is to be effected in a case such as the present. CPR6.26(2) requires a claimant to file specific documents, which include the documents included in the package in this case. CPR6.26(3) provides that, where those documents are filed, the relevant court officer will “seal the copy of the claim form” and “forward the document to the Senior Master”. CPR6.26(4) requires the Senior Master to “send documents forwarded under this rule” to “the authorities designated under the Hague Convention”.

It seems to me clear from these provisions in Part III of CPR6, that they envisage that “service” of a document on a defendant out of the jurisdiction involves the same concept as “service” of a document on a defendant in the jurisdiction, namely the provision of the document to him personally (although there will be exceptions such as substituted service). The language of the relevant rules is not uninstructive. A claim form is “served” on a defendant, whereas it is “file[d]” with the court office, “forward[ed]” to the Senior Master, and “sen[t]” to the designated foreign authority in order that it may be “served” on the foreign defendant.

However, when one goes back to CPR6.7, the word used is “delivered”. Accordingly, says Mr Millett, the copy claim form in this case was “delivered” to the Foreign Process Section and to the Senior Master, as required by Part III, and that was deemed to be “service”. Even if that argument were correct, it would merely establish that the Section or the Senior Master was served, not that the defendant was served, and it is service on the defendant which is the step which needs to be established according to the Dresser and Sargasso cases. However, to my mind, the argument does not even get that far: CPR6, and, in particular, as its opening words show, CPR6.7 is concerned with service, and, therefore, there was no relevant “deliver[y]” of the claim form in this case until it was served on the defendant.

I turn, then, to the point upon which the claimants succeeded below. On the face of it, in the light of what Steyn LJ called the “date of service” rule, the non-service of the copy claim form on 19 January 2005 means that the High Court was not seised of these proceedings before the Zurich Obergericht was seised of the Swiss proceedings on 4 February 2005, so these proceedings should be stayed under Article 21. The claimants’ case is that CPR6.9 and CPR3.10 can be invoked to cure the effect of the failure to serve the claim form, so that the High Court was seised of these proceedings on 19 January.

In order to place the argument in its context, I must refer to parts of the CPR and most of the relevant rules are well summarised in the judgment below:

“130.

English proceedings are commenced by the issue of a claim form (CPR7.2 (1)). After a claim form has been issued the general rule under CPR7.5 is that the period [within which the claim form must be served] is 4 months after the date of issue. Where the claim form is to be served out of the jurisdiction that period is 6 months. Both those periods have now expired. Under CPR7.6(2) an order extending the period generally has to be applied for within the period for service of the claim form … [Under CPR7.6(3), i]f a claimant applies outside the period an order can be made extending time but only if the court has been unable to serve the claim form or the claimant has taken all reasonable steps to serve the claim form but has been unable to do so and in either case the claimant has acted promptly in making the application. Such an application must be supported by evidence that may be made without notice.

131.

There are separate general provisions in respect of service which have to be considered at the same time. Under CPR6.8 provided there is good reason the court can authorise a method of service not permitted by the rules. Under CPR6.9 the court can dispense with service of a document. Finally in this context CPR3.10 provides that where there has been an error of procedure such as a failure to comply with a rule or practice direction the error does not invalidate any step taken in the proceedings and is not invalidated unless the court so orders but the court may make an order to remedy the error.”

I must also refer to CPR7.4, which deals with service of the particulars of claim. By CPR7.4(1), they must be served on a defendant with the claim form or within 14 days of its service. CPR7.4(2) stipulates that the particulars of claim must be served “no later than the latest time for serving a claim form”.

It is not possible to invoke CPR3.10 on its own to extend time for service of the claim form, or to override the failure to serve the claim form, not least because there are other, specific, rules dealing with extending time and dispensing with service in such a case, namely CPR7.6(2)(3) and CPR 6.9 respectively. That is the effect of two decisions of this court, namely Vinos –v- Marks & Spencer plc [2001] 3 All ER 784 (see at [20] and [27])and Elmes –v- Hygrade Food Products plc [2001] EWCA 121 (see at [12] and [13]).

The claimants’ argument does rely on CPR3.10, but on a rather more sophisticated basis than it was unsuccessfully relied on in those two cases. The way in which the argument is put involves two stages. First, it is said that CPR6.9 can and should be invoked to dispense with service of the claim form. Secondly, it is said that, as a result, CPR3.10 validates the service of the proceedings, and in particular, the service of the particulars of claim, on the defendant on 19 January 2005, as a result of which seisin occurred on that day.

For the defendants, Mr Martin contends that

The question considered under this head of argument is slightly artificial. It assumes (consistently with the facts) that the purpose of the application under CPR6.9 is to enable these proceedings to gain the priority over the Swiss proceedings, which it is common ground that they would have had if the copy claim form had been served on the defendant on 19 January 2005. To that extent, Article 21 can be said to be in point. However, the argument otherwise ignores the international dimension, and in particular, whether it is possible or appropriate to invoke CPR6.9 for such a purpose in light of the terms of the Conventions and the English and ECJ jurisprudence in that connection.

On this slightly artificial basis, the issue is whether the Judge would have been right, or at least within his powers, to exercise his jurisdiction under CPR6.9 to dispense with service of the copy claim form A number of decisions of this court, culminating with Kuenyehia –v- International Hospitals Group Ltd [2006] EWCA 21, show that a claimant, who has not served a defendant with a claim form, can invoke CPR6.9 after the time for service has expired, but only in exceptional circumstances.

In Anderton –v- Clwyd County Council (No. 2) [2002] 1 WLR 3174, at [59], Mummery LJ, giving the judgment of this court, concluded that, even in a case where CPR7.6 could not be relied on, there was power under CPR6.9 “to dispense with service of the claim form” albeit that the power to do so “is only exercisable retrospectively in exceptional circumstances”. At [18] of his judgment in Wilkey –v- British Broadcasting Corporation [2003] 1 WLR 1, Simon Brown LJ (with whom the other two members of the court agreed) suggested that, in cases where late service occurred after the decision in the Anderton case, a tougher line should be taken on applications which sought to invoke CPR6.9 than in relation to cases where the late service occurred before the Anderton case.

The fullest guidance in this field was, I think, given in the judgment this court delivered by Dyson LJ in Cranfield –v- Bridgegrove Limited [2003] 1 WLR 2441, which involved five conjoined appeals. In relation to one of them, Murphy –v- Staples UK Ltd, it was decided that the claim form had been properly served, but the court went on to consider whether, if that was wrong, relief should be granted underCPR6.9. In [88], the court concluded that, in the light of “the very unusual circumstances” of the case, as described in [87] of its judgment, it would be right to grant such relief.

In my judgment, the reasons given in [87] of that case for reaching that conclusion give strong support for the claimants’ contention that, subject to the international aspect, CPR6.9 can be invoked here. First, in this case, as in the Murphy case, the defendant received a copy of the claim form in time. In that case, it was a simple copy of the claim form, whereas here it was a certified translation into the language of the country of service. Secondly, the circumstances of the Murphy case were “very unusual” in the context of domestic service. The facts of the present case, in the context of service out of the jurisdiction, appear to me to be even more unusual. Thirdly, in that case as here, there was no question of the defendant in any way having been misled or disadvantaged as a result of the failure to serve the claim form.

Fourthly, in the Murphy case, the claimant’s solicitors were to blame for what had happened, and no other person was at fault. Here, the claimants’ solicitors noticed the inappropriate stamp, and took the risk of not correcting that obvious error. However, they were no more to blame than the solicitors in the Murphy case. Further, there is a real argument that the English High Court was also to blame, and, as discussed above, it is also arguable that the removal of the copy claim form from the package may not have been permitted by the Hague Convention.

Finally, as was emphasised in [88] in the Murphy case, reflecting what was said by Simon Brown LJ in the Wilkey case, it may well be right to permit a claimant to invoke CPR6.9 in circumstances which have not arisen under the CPR before, with a warning that, if those sort of circumstances arise again, the court is unlikely to be so indulgent to the claimant.

The reason that the claimants in the various domestic cases which I have been discussing wished to rely on CPR6.9 was that, otherwise, they would have had to start fresh proceedings, which would have been liable to be defeated by a Limitation Act 1980 defence. In other words, the purpose of dispensing with service of the claim form was to enable the proceedings to be retrospectively validated to defeat a time bar which came down between the date on which service should have occurred (if CPR7.5 had been complied with) and the date on which CPR6.9 was invoked. The purpose of the claimants in invoking CPR6.9 here is very similar, namely to validate service retrospectively, so as to defeat the priority claimed for the Swiss proceedings, issued between the date on which service should have occurred (if the claim form had not been wrongly stamped and removed from the package) and the date on which CPR6.9 was invoked.

Accordingly, it seems to me that, subject to what I say in the next paragraph, and unless there is some special point arising out of the fact that this case involves the Conventions, there can be no criticism of the Judge’s decision to dispense with service of the claim form, on these very unusual facts.

Before turning to Mr Martin’s second point, it is right to mention that the claimants may not need to have recourse to CPR6.9, as this may be a case where (subject again to the international dimension) the claimants could invoke CPR7.6(3). However, the applicability of CPR7.6 in the present case has not been addressed in argument before us. I shall therefore say no more about it, particularly as it does not appear to me to affect the outcome of this appeal whether the claimants seek to rely on CPR6.9 or CPR7.6(3).

Mr Martin contends that, even if it would otherwise be appropriate, by reference to principles applicable to domestic service, to permit the claimants to invoke CPR 6.9, it would be ineffective (or inappropriate) to do so, given that the purpose is to give these proceedings priority over Swiss proceedings which already have (or would otherwise have) priority under an international Treaty with a clear priority rule, namely Article 21.

The claimants’ general answer to that point is that, since the question of whether and when the court of a particular state is seised of proceedings against a foreign defendant for the purpose of Article 21 is to be determined by reference to the law of that state, it follows that the English rules relating to service can be applied according to purely domestic principles. Accordingly, says Mr Steinfeld, CPR6.9 can be invoked with the result that the defendant in this case has been properly served with the proceedings. Even if that general argument is too widely expressed, he says that the claimants’ reliance on CPR6.9 can be justified in the light of CPR3.10, especially owing to the service of the particulars of claim on the defendant. This argument was attractively developed, but I am satisfied that it is wrong.

The position as at 4 February 2005, when the Swiss proceedings were issued, was this. As the defendant had not been served with the copy claim form, the High Court was not seised of these proceedings as against her, and accordingly, as the Swiss rule is that seisin occurs on issue, the Swiss proceedings had priority under Article 21. In these circumstances, it appears to me that there is obvious force in the proposition that it is not possible (or, if it is possible, it would not be right) for this court, subsequent to 4 February 2005, to invoke its discretionary jurisdiction under a domestic rule of procedure, such as CPR6.9, to enable these proceedings to snatch back priority for the purposes of Article 21 from the Swiss proceedings. The court would thereby be trying to enable the English proceedings to jump the Article 21 queue, or, to adopt Bingham LJ’s metaphor, it would be seeking to achieve a retrospective replay of the tie-break with a different outcome.

In my judgment, there are a number of cases in this court, and indeed at first instance, which support the proposition that it would be ineffective (or else impermissible) to invoke CPR6.9 for this purpose. Further, the thrust of the reasoning of the ECJ in a number of other cases points pretty firmly in the same direction.

In Molins Plc –v- G.D. SpA [2000] 1 WLR 1741 Aldous LJ (with whom Potter and Nourse LJJ agreed) said at [38]:

“I have no doubt that service is a requirement of Italian law before proceedings become definitively pending before an Italian court. I accept that irregular service can under Italian law be validated either by appearance or an order of the judge and that such validation would be retrospective; but until such validation has been achieved the Italian court cannot be seised, as during the interim period the proceedings could not be definitively pending before the Italian court.”

Having approved a similar view expressed by His Honour Judge Diamond QC in an earlier case, Aldous LJ continued:

“39

In my view, seisin cannot depend upon what will happen in the future. This court is concerned to decide whether proceedings in Italy were definitively pending prior to 30 July 1999, the date when the English court was seised of the cause of action. As of that date no validation had taken place.

40

Once it is established, as it is, that service is required for proceedings to be definitively pending under Italian law, then the decision as to whether service took place depends upon whether service was effected as required by article IV of the Protocol to the Brussels Convention…”

In Tavoulareas –v- Tsavliris [2004] 1 Lloyds Rep 445, Mance LJ (with whom Thorpe LJ and Evans-Lombe J agreed), after holding that Greek proceedings required service for the purposes of seisin, said this:

“20.

Professor Antapassis says that, as a matter of Greek domestic law, the effect of art. 221 is that proceedings may be considered pending retrospectively from the date of filing of the writ, once service has been effected.…

21.

However, it is impossible to accept that the Greek proceedings were, for the purposes of art. 21 of the Brussels Convention, definitively pending from Nov. 8, 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 Lord Justice Bingham said:

“Some tie-break rule was necessary, and that adopted by the Convention was a simple test of chronological priority.”

In the earlier case of Grupo Torras –v- Al-Sabah [1996] 1 Lloyd’s Rep 7 at 24, Stuart-Smith LJ (giving the judgment of the court) stated that:

“The test laid down in Zelger is a chronological test. It requires a moment in time to be identified. When were the requirements first fulfilled? A doctrine of relation back cannot alter the answer to be given to this question. Under Spanish law, the requirement for pendency was not fulfilled until the proceedings were served on Grupo Torras in October, 1993. Again, the argument of the defendants confuses the fulfilment of the requirement with the consequences of that fulfilment in the domestic procedural law” (emphasis supplied).

It is also worth referring in this context to the decision of this court in the Knauf case. There, the first instance decision permitted service under CPR6.8 on a foreign defendant’s English solicitors to enable the claimant to say that the defendant had thereby been served, and the English court was thereby seised under the Brussels Convention, before the German court was seised of proceedings which the defendant was proposing to bring in Germany. While this court appears to have accepted that the decision did not infringe the Hague Convention, it allowed the defendant’s appeal.

At [47], the court said that the use of CPR6.8 “as a means for turning the flank of the [Hague and Brussels] Conventions, when…they do not permit service by a direct and speedy method such as post, is to subvert the Conventions which govern the service rule as between claimants in England and defendants in Germany”. It is right to add that, in [54] in the Knauf case, the Court went on to acknowledge that there might conceivably be “very special circumstances” where rules such as CPR6.8 might be invoked.

The law on this topic was also considered by Colman J in Shiblaq –v- Sadikoglou (No. 2) [2004] EWHC 1890. At [56], he referred to “the strong disapproval of the deployment of [CPR6.8] to subvert the requirements of the Hague Convention…so as to affect the rules of the Brussels Convention as to jurisdictional precedence” and suggested that the principle applied equally to CPR6.9. At [57], he said that CPR6.9 should not be used either prospectively or retrospectively “for the purpose of…avoiding a defect in service which is inconsistent with a service convention binding as between this country and the country of service”. In the same paragraph, he said this:

“Where it is sought to apply CPR6.9 retrospectively, if the effect of dispensing with service is to place the defendant in the same position as he would have been in if service had not been by an impermissible method but by a method provided for by such service convention, no order should be made.”

These statements from the Grupo Torras, Molins, Tavoulareas, Knauf and Shiblaq cases provide very strong support for the conclusion that the invocation of CPR6.9 in a case such as this would be ineffective, or, if, contrary to my view, it would be effective, that it would be inappropriate. CPR6.9 cannot (or should not) be invoked to enable proceedings in this jurisdiction to enjoy Article 21 priority, which has already been achieved by proceedings of which a Lugano Convention state court is already seised (or, respectively, which they might not otherwise have as against such proceedings of which the relevant Lugano Convention state court may become seised).

The importance of mutual respect between courts of different jurisdictions and of legal certainty, consistency and simplicity, in the context of the Conventions was mentioned in the Zelger case by the ECJ, and has been emphasised in a number of its subsequent decisions. In Erich Gasser GmbH –v- Missat SARL [2004] 1 Lloyds Rep 222 at [67], the importance of certainty was emphasised. That case is also authority, at [72], for the proposition that such Conventions are based on the mutual trust and confidence which each contracting state accords to the legal systems and judicial institutions of the other contracting states. That was again emphasised by the ECJ in [24] and 25 of Turner –v- Grovit [2005] 1 AC 101, where it was said that “the rules on jurisdiction that [the Brussels Convention] lays down… are common to all courts of the Contracting States [and must] be interpreted and applied with the same authority by each of them.”

In Oswusu –v Jackson [2005] 2 WLR 942, at [40], the ECJ stated that Article 2 of the Brussels Convention “should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts…he may be sued.” In [41] the Court mentioned the requirement of “predictability of the rules of jurisdiction” in the Convention, and to “the principle of legal certainty, which is the basis of the Convention.”

These observations of this court appear to be focussed pretty closely on the point at issue here, while those of the ECJ are of more general application. Particularly when taken together, they appear to me to present insuperable obstacles to the claimants’ invocation of CPR6.9 to enable these proceedings to achieve priority under Article 21 over the Swiss proceedings, when these proceedings would not otherwise enjoy such priority, indeed when the Swiss proceedings have already gained such priority.

I return to the point that this court left open in the Knauf case (albeit with no great confidence), namely the possibility of an exceptional case where CPR6.8 might be invoked in a case involving priority of the sort involved in this case. I do not consider that could help the claimants here. In that case, there were no German proceedings in existence at the time, so the claimant was seeking to invoke CPR6.8 to enable English proceedings to win a race against the German proceedings before the race had even begun. That was at least conceptually possible. Here, the claimants are seeking to invoke CPR6.9 to enable these proceedings to win a race that has already been won by the Swiss proceedings.

Even if the exercise of the court’s power under CPR6.9 could achieve the result desired by the claimants, it would be a power which, according to the Knauf case, could be exercised only in exceptional circumstances. In my view, the facts of the present case would not justify invoking CPR6.9. First, it was not in any way the fault of the defendants that the copy claim form was not served before 4 February 2005; they did not, for instance, evade service of these proceedings. Secondly, the claimants (through their solicitors) must take at least some of the blame for the failure to serve the copy claim form.

Thirdly, it cannot be inappropriate for the defendants to start their own proceedings in the court of a country which has jurisdiction under the Lugano Convention, especially in their country of residence. Further, there is nothing wrong in the defendants seeking a negative declaration in this context, even where the claimants might characterise that course as forum-shopping; see in this connection the discussion in Dicey and Morris on The Conflict of Laws (13^th edition) at paragraph 12-036. Fourthly, if the Zurzach Court could be criticised for its failure to serve the copy claim form or to report promptly on its non-service, that would not be a sufficient reason to justify exercising this court’s CPR6.9 jurisdiction, as Mr Steinfeld realistically accepts.

Mr Steinfeld contends that CPR3.10 provides an answer to the point that the invocation of CPR6.9 would be ineffective or inappropriate to enable these proceedings to achieve Article 21 priority over the Swiss proceedings. He says that, as a result of the court exercising its power under CPR6.9, the effect of CPR3.10 would be to validate the service of the translation of the claim form as service of the copy claim form and/or to render effective the service of the particulars of claim. As both of those events occurred on 19 January 2005, before the issue of the Swiss proceedings on 4 February 2005, he argues that the High Court was seised of these proceedings before the Zurich Obergericht.

I do not consider that CPR3.10 can possibly help the claimants’ case in relation to the service of the copy claim form. All that an order under CPR6.9 does in relation to a document (in this case, the copy claim form) is to dispense with a requirement elsewhere in the CPR that the document be served. CPR3.10 does not have the effect of treating the document as fictionally having been served. Thus, in the Shiblaq case at [40], Colman J emphasised that CPR 6.9 “certainly cannot be used retrospectively to create a deemed breach of the duty to acknowledge service and thereby to justify signing judgment in default”.

In other words, the effect of an order under CPR6.9 to dispense with the service of the copy claim form does not mean that, as a result of CPR3.10, the service of some other document is to be treated as service of the claim form. At least in a case where the Court dispenses retrospectively with service of the claim form under CPR6.9, the “error of procedure” in CPR3.10 is the failure to serve the claim form. There is no basis for contending that the service of another document is to be treated as service of the claim form on the basis that it is a “step in the proceedings”. Such a contention would involve a claimant pulling himself up by his own bootstraps. It would also lie uneasily with the fact that the Court has dispensed with service of the claim form.

If this is wrong, the claimants’ reliance on CPR3.10 as validating the service of the claim form runs into the same problem as their reliance on the rule for validating the service of the particulars of claim, the point to which I now turn.

I am prepared to accept the argument that, if the court grants the claimants relief under CPR6.9 in relation to the service of the copy claim form, then the effect of CPR3.10 would be to validate the service of the particulars of claim on the defendant on 19 January 2005, even though such service would be premature under CPR7.4(1). However, that does not help the claimants for two reasons, in my judgment. First, it does not seem to me that the claimants’ argument based on CPR3.10 addresses the reason that their reliance on CPR6.9 is inappropriate, namely because it is being invoked with a view to enable these proceedings retrospectively to gain priority under Article 21 over the Swiss proceedings in circumstances where the latter proceedings had already achieved such priority. Secondly, as discussed above, the rule is that it is only on service of the copy claim form that the English court becomes seised under Article 21. If relief under CPR6.9 can be granted in a case of non-service of the claim form, it seems to me that seisin could not occur earlier than when the application for such relief is made, and probably not before it is granted. Otherwise, the important clarity and certainty of the rule established in the Dresser and Sargasso cases would be weakened.

As to my first reason, it is true that I am accepting that, if CPR6.9 is invoked to dispense with service of the copy claim form, the effect of CPR3.10 is that the premature service of the particulars of claim would not be invalidated unless the court otherwise orders. Accordingly, no order to validate such service would be needed. But that does not alter the fact that the defendant will not have been properly served with the particulars of claim until the order under CPR6.9 is made.

In any event, I am quite unpersuaded that the issue of when this court is first seised for Article 21 purposes should depend on whether a domestic rule of court, such as CPR3.10, provides that, after making an order under CPR6.9 in a case such as this, the premature service of the particulars of claim was ineffective in the absence of an order to the contrary, or effective in the absence of an order to the contrary. It seems inappropriate, in the context of an international Convention, where simplicity and clarity are so important, for the question of seisin to turn on such niceties of domestic procedural rules.

In any event, in the Sargasso case at 189j to 190a, Peter Gibson LJ, with whom Sir Tasker Watkins agreed, suggested that the English court should not be treated as seised of a case before a defendant could reasonably be expected to apply to challenge the service of the proceedings on him. Where the defendant is not served with a claim form, then, until an order under CPR6.9 is made (and, probably, until the defendant knows of it or can fairly be taken to know of it), he could not be expected to challenge this court’s jurisdiction.

As to my second reason, it appears to me to be wrong, save perhaps in an exceptional case, to depart from the clear and simple rule that service of the claim form, as opposed to service of any other document, on the defendant is the basis of seisin for the English court. Service of the claim form on a defendant is a fundamental step in any proceedings. Indeed, it is pertinent to note that, in [173] of his judgment, having decided he should dispense with service of the claim form under CPR6.9, the Judge immediately went on to say that that “was not of course the end of the matter because an original claim form will have to be served on [the defendant] in due course in order to progress the action”. It may be possible for an English court to conclude that the service of a document other than the claim form would suffice to give it seisin for Article 21 purposes, but, in the light of what was said in the Sargasso case, I find it hard to envisage, as did this court in the Knauf case, circumstances which would justify such a result.

Assuming, in the claimants’ favour, that that would be a possible course in an exceptional case, and that it could be done in a case such as the present where foreign proceedings have already achieved priority, I do not consider that it is a course which should be followed here. My reasons are the same as those given in [92] and [93] above (not surprisingly, as the point is very similar).

I have not so far referred to the decision of this court in Golden Ocean Assurance Ltd –v- Martin (“The Goldean Mariner”) [1990] 2 Lloyds Rep 210, on which Mr Steinfeld strongly relies. I do not consider that it assists. My primary reason is that there was no question in that case of the retrospective validation of an ineffective attempt to serve the writ operating to affect, let alone to alter, the priority between English and foreign proceedings under an international Convention. It is therefore simply not in point, in my judgment. Quite apart from this, I am uneasy about relying on a case which was decided under RSC Order 2 rule 1, although it is said by Mr Steinfeld to have been equivalent to CPR3.10. RSC Order 2 rule 1 is more widely worded (as Colman J pointed out in [35] in the Shiblaq case) and much more lengthy than CPR3.10. Further, it applied at a time when there was no equivalent of CPR6.9. Quite apart from this, it is not altogether easy to discern the precise extent of the ratio of the Goldean Mariner case. Lloyd LJ dissented, in that he agreed with Phillips J at first instance (although I think for slightly different reasons); McCowan LJ thought that RSC Order 2 rule 1 was very wide in its effect (see the last full paragraph on 233), whereas Megaw LJ seems, at least arguably (and in my view probably), to have given the rule a more restricted ambit (see the last paragraph of the first column on 225).

Accordingly, although I accept that the court would grant the claimants relief under CPR6.9 if this were a domestic case, it cannot, in my judgment, be right to do so in a case where the sole purpose of the relief is intended to enable the inadequately served English proceedings to achieve Article 21 priority over Swiss proceedings which had already obtained such priority. If relief was granted under CPR6.9, it would not achieve the intended purpose of giving these proceedings priority under Article 21. In the alternative, even if granting relief under CPR6.9 would be effective for that purpose, it would be wrong to grant such relief.

I would expect this conclusion to be shared by the Swiss Courts, not only because of the reasons given above, but also in the light of the Swiss law expert evidence given to Peter Smith J. If that is right, then, if the instant proceedings were permitted to continue, there could be a race to judgment between the claimants in this country and the defendants in Switzerland. Further, if the claimants were to succeed here and the defendants were to succeed in Switzerland, neither judgment would be enforceable in the other country by virtue of Article 27(3) of the Lugano Convention. Conflicts between national courts, involving such races to judgment, inconsistent decisions, and unenforceable orders, are the very stuff of what such international Conventions are designed to avoid. Such conflicts are best avoided by national Courts faithfully and consistently following the provisions of the Conventions, and applying domestic procedural rules, not only simply and predictably, but also consistently with the Conventions.

In the light of my conclusion on the interrelationship of Article 21 and CPR6.9, this issue is academic. However, it has been argued and can be disposed of relatively shortly. Mr Martin argues that allowing the claimants to invoke CPR6.9 in a Hague Convention case is impermissible, even ignoring the fact that the invocation is to enable these proceedings to achieve priority over the Swiss proceedings. The Hague Convention prescribes how service of English proceedings is to be effected in Switzerland, and, he says, it cannot therefore be right for an English Court to permit service in a different way, or to permit non-service under CPR6.9.

The provisions of the Hague Convention are concerned, at any rate primarily, with how documents are to be served, and not with what documents are to be served. That is scarcely surprising: one would expect the latter question to be determined by the domestic rules as applied by the relevant national court. In my opinion, therefore, there is considerable force in the contention that the question of whether a person who has been served, in accordance with the Convention, with court documents, needs to be served with another document in order to be properly served in accordance with the domestic procedural rules of a national court should be a matter for that court to determine by reference to those rules. On the other hand, care must obviously be taken to ensure that the Hague Convention is not outflanked or subverted by the invocation of domestic rules of court – see the Knauf and Shiblaq cases.

In my judgment, if the claimants’ application for relief under CPR6.9 in this case had been merely for the purpose of some purely domestic benefit, such as defeating a statutory time-bar, and not for the purpose of gaining priority for these proceedings under Article 21, then it would probably not have been wrong in principle to grant them relief under CPR6.9. The defendant has been served, in accordance with the Hague Convention, with the documents listed in [14] above, so there would be no question of invoking CPR6.9 to avoid serving the defendant with these proceedings at all in accordance with that Convention. That is an important ground (over and above the point that I am here assuming the absence of any Article 21 or similar point) for distinguishing the disapproval by this court of the invocation of CPR6.8 in the Knauf case, and Colman J’s observations about the use of CPR6.8 and CPR6.9 in the Shiblaq case.

In Re Bas Capital Funding Corporation [2004] 1 Lloyds Rep 652 at 682, Lawrence Collins J said, in a case which involved service in a country which was not party to a service Convention, that “Proper service is particularly important in international cases, where the basis of jurisdiction is service. I would therefore hesitate before ordering service by an alternative method, or dispensing with service”. I agree with that observation, which deserves particular respect coming from the general editor of Dicey and Morris (cited above). However, like the Knauf and Shiblaq cases, the Bas Capital case was not one where service of any documents, let alone the formal court documents served in this case, had been properly effected. Nor was it a case which involved the Brussels Convention, the Lugano Convention, or the 2001 Regulation.

Accordingly, in the absence of any Lugano Convention factor, it seems to me that, if a proper reason could be established for dispensing with service of the claim form in this case (e.g. to overcome a purely domestic limitation defence), there would be a powerful case (which I would have been inclined to accept) for saying that the Hague Convention should not stand in the claimants’ way. My reasons for expressing that view are those given in [70] to [72] above. On the very unusual facts of this case, to grant relief to the claimants under CPR6.9 for such a reason would not have involved “turning the flank of” or “subverting” the provisions of the Hague Convention.

Having said that, I do not consider that it would have been right for the court to have dispensed with service of the copy claim form in this present case, in the absence of the Article 21 factor. That is because, in the absence of that factor, there would have been no reason to dispense with service. That proposition is supported by the facts that (a) the Article 21 consequences of the issue of the Swiss proceedings provided the only basis advanced by the Judge or the claimants for dispensing with service of the copy claim form, and (b) as mentioned above, the Judge said in [173] of his judgment (as was reflected in the order appealed against) that, notwithstanding his order dispensing with its service, the copy claim form would have to be served on the defendant “to progress the action”.

In these circumstances, it follows that the defendants’ appeal must be allowed. The only reason for the Judge’s order dispensing with service of the copy claim form on the defendant under CPR6.9 was to enable these proceedings to gain priority under Article 21 of the Lugano Convention over the Swiss proceedings. The order was ineffective for that purpose. Even if it had been effective, it would have been inappropriate to make the order for that reason. Once that reason for making the order under CPR6.9 is discarded, there is no other reason for making the order. I believe that it follows that these proceedings must be stayed as against the defendants pursuant to the terms of Article 21.