Tavoulareas v Alexander G Tsavliris & Sons Maritime Company

This judgment arises from an application made by Alexander G Tsavliris and Sons Maritime Company (“AGT Co”) in what I called “the second action” in my judgment [2005] EWHC 2140 (Comm). In paragraph 70 of that judgment I said that I would invite further submissions about one issue before determining the application. I heard such submissions on 11 November 2005.

The issue was this: whether section 27 of the Brussels Regulation applies when the proceedings in the court first seised (here the Greek court: I use the terminology of my previous judgment) have proceeded to judgment at first instance (although there is still the possibility of an appeal) between the time when the proceedings were brought in the court second seised, this court, and the time when the court second seised determines whether it should decline jurisdiction.

The relevant dates are these. The proceedings in the Greek court were brought on 8 November 2001. The second action was brought by Mr Tavoulareas on 16 August 2004, and on 4 October 2004 AGT Co, the defendant in the second action, applied for a declaration under article 27 that this court has no jurisdiction. On 22 October 2004 the Greek court published its judgment. It is common ground that the time within which Mr Tavoulareas can appeal against that judgment has not yet expired.

The effect of my decision in [2005] EWHC 2140 (Comm) is that before 22 October 2004 this court would have been obliged under article 27 of the Brussels Regulation to decline jurisdiction in the second action. The question is whether that position altered when the Greek court gave judgment. Mr Shepherd, representing Mr Tavoulareas, submits that it did and, and Mr Irvin for AGT Co argues that the position remained the same.

Mr Shepherd’s argument is that article 27 applies only when there are concurrent proceedings before the courts of different Contracting States, and that once there was judgment in the Greek proceedings there are current proceedings only in this court. He points out that article 27 is within Chapter II of the Regulation, which deals with Jurisdiction, and in section 9 of that Chapter, which deals with “lis pendens – related actions”. Chapter III of the Regulation is headed “Recognition and Enforcement” and deals with the position after judgment has been given by a court or tribunal of a Member State. Mr Shepherd submits that the structure of the Regulation, reflecting that of the Brussels Convention, is that Chapter II directs the Court of a Member State if there is a related action still proceeding before a court of another Member State and Chapter III deals with the position if the related action has proceeded to judgment.

It is beyond argument, and Mr Irvin does not dispute, that this submission is broadly correct. The thinking behind article 21 of the Convention, reflected in article 27 of the Regulation, is described in the Jenard Report thus: “As there may be several concurrent international jurisdictions, and the courts of different States may properly be seised of a matter …, it appears necessary to regulate the question of lis pendens”.

It is also clear that the judgment of the Greek court of 22 October 2004 is a “judgment” within the meaning of Chapter III notwithstanding Mr Tavoulareas is still entitled to appeal against it. Mr Irvin does not suggest otherwise and does not rely upon the fact that Mr Tavoulareas could bring an appeal.

Mr Irvin’s argument is that the question whether or not there are concurrent proceedings is to be determined by reference to the position when the proceedings were brought before the court second seised. Mr Irvin accepts that if at that time the action in the court first seised has proceeded to judgment, article 27 has no application, but he submits that if at that time the proceedings in the court first seised have not proceeded to judgment and are still continuing, then any action in a court of another Member State to which article 27 applies is improperly brought and the obligation upon that court to decline jurisdiction does not evaporate if and when judgment is given by the court first seised. He argues that it would be odd and surprising if the court second seised were freed of its obligation to decline jurisdiction in proceedings improperly brought before it simply because judgment is given in other proceedings.

I cannot accept this submission. Indeed, the implications of Mr Irvin’s submission are, to my mind, more surprising: that the court would be obliged to decline jurisdiction in the proceedings before it, notwithstanding it would be open to the claimants to start new and identical proceedings. It would be a pointless exercise for the court to decline jurisdiction unless it be suggested that there is merit in an inflexible rule that claimants should be required to waste time and costs in this way, in order to mark the fact that they should not have brought the proceedings. After all, if there were such a rule, it would operate even if the claimants were unaware of the proceedings in the court first seised when they brought their proceedings elsewhere. I decline so to interpret article 27.

Mr Irvin relies upon the way that the matter is put in Briggs and Rees, Civil Judgments and Jurisdiction, 4^th Ed (2005) at para 2-205: “If the foreign court was seised first, but is no longer seised when the English proceedings are instituted, there appears to be no bar to the exercise of jurisdiction by the English court” (emphasis added). Briggs and Rees cite two authorities in support of this. One is the decision of the Court of Appeal in Prudential Assurance Co Ltd v Prudential Insurance Co of America, [2003] 1 WLR 2295. There Chadwick LJ, with whom the other members of the Court agreed, said this (at para 26): “…I find nothing in article 21 [of the Brussels Convention] to suggest that that article is intended to require a court in one contracting state to stay its proceedings or decline jurisdiction unless there is a concurrente action involving the same cause of action and between the same parties pending in another contracting state; and nothing in article 22 to suggest that that article is intended to empower a court in one contracting state to stay its proceedings unless there is a concurrent related action … in another contracting state – or to decline jurisdiction unless the two related actions could proceed together in another contracting state. It is, I think, important to keep in mind that section 8 of Title II of the Convention is directed, specifically, to the position where, under the earlier sections of the same Title, an action involving the same cause of action and between the same parties – or a related action – has already been commenced in state A, a concurrent action ought not to be allowed to proceed in state B. Where, at the time an action is commenced in state A, one of the parties has already obtained a judgment in state B, section 8 of Title II is not in point. In such a case the relevant provisions of the Brussels Convention are those in section 1 (“Recognition”) of Title III (“Recognition and enforcement”)” (emphasis added).

Mr Irvin draws attention to the reference by Chadwick LJ to the commencement of the action in “state A”. However, as far as I can tell from the judgment of Chadwick LJ, and indeed that of Laddie J at first instance [2002] IP&T 781, this case did not raise on the facts the question that I have to decide, and the point was not considered by Laddie J and the Court of Appeal. I cannot accept that Chadwick LJ intended his terminology to have the significance that Mr Irvin invites me to give it.

The other authority cited by Briggs and Rees is the decision of Morison J in Internationale Nederland Aviation Lease BV v CAA, [1997] 1 Lloyd’s LR 80. In that case an aircraft had been detained at Bournemouth Airport by the Civil Aviation Authority (“CAA”) acting on behalf of Eurocontrol, and on 9 November 1993 proceedings were brought in this country against the CAA and Eurocontrol for a declaration that the detention was unlawful and other relief in respect of its detention. On 1 August 1995 the claimants in the English proceedings commenced proceedings in respect of the seizure of the aircraft against Eurocontrol in Belgium, and applied to discontinue the English proceedings.

The application was refused by Morison J, who said that he would be prepared to permit discontinuance only on the basis that the claimants could not bring proceedings relating to the arrest and detention of the aircraft elsewhere. In his judgment he considered how discontinuance of the English proceedings would affect the impact of article 21 of the Brussels Convention upon the Belgian proceedings. He formulated the question thus (at p.93): “whether a Court which was first seised remains first seised even if the proceedings have been discontinued”; and concluded, having considered the decisions of Potter J in Gamlestaden plc and Casa de Suecia SA, [1994] 1 Lloyd’s Rep 433 and of the Tribunal de grande instance de Dunkerque in Benoit and David v Decanter and Ternynck, [1985] European Digest 1-21/B8, that article 21 had no application when a party has properly discontinued the first set of proceedings.

I shall set out at some length the reasoning of Morison J (at pp.93-94) because I find it entirely convincing and it explains better than I could the basis of my decision in this case:

Neither Morison J’s decision nor his reasoning provide any support for Mr Irvin’s argument that the question whether the court must decline jurisdiction under article 27 is determined entirely by reference to the position when the proceedings before it are instituted. On the contrary, the reasoning is inconsistent with that proposition. The citation of the decision of Morison J by Rees and Briggs confirms, I think, that in the sentence upon which Mr Irvin relies the authors did not have in mind this question.

I conclude that Mr Irvin’s argument is not supported by authority and I reject it. I consider that article 27 applies where there are concurrent proceedings at the time that the court which was not first seised makes its determination.

I should add that Mr Irvin advanced a secondary argument that, even if article 27 no longer applies when the proceedings before the court first seised come to an end because they are discontinued, the position is different if they come to judgment. I see nothing in the Brussels Regulation or in the authorities that indicates this distinction, and see no reason to draw it.

It follows that, because judgment has been given in the Greek proceedings, I reject the application made by AGT Co in the second action that this court should decline jurisdiction under article 27.