Tavoulareas v Alexander G Tsavliris & Sons Maritime Company [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | Andrew Smith J. |
| Judgment Date | 24 November 2005 |
| Date | 24 November 2005 |
| Court | Queen's Bench Division (Commercial Court) |
Queen's Bench Division (Commercial Court).
Andrew Smith J.
Philip Shepherd QC (instructed by Howe and Keates) for the claimant.
Peter Irvin (instructed by Constant & Constant) for the defendant.
The following cases were referred to in the judgment:
Benoit and David v Decanter and TernynckUNK [1985] European Digest 1-21/B8 (Tribunal de grande instance de Dunkerque).
Gamlestaden plc v Casa de Suecia SAUNK[1994] 1 Ll Rep 433.
Internationale Nederlanden Aviation Lease BV v Civil Aviation Authority[1997] CLC 43.
Prudential Assurance Co Ltd v Prudential Insurance Co of AmericaWLR[2003] 1 WLR 2295.
Related proceedings Brussels Regulation Whether English court as court second seised should decline jurisdiction once Greek court as court first seised had proceeded to judgment Whether there were concurrent proceedings to be determined not by reference to position when proceedings brought in court second seised but when court second seised made its determination Once judgment had been given in Greek proceedings there were no concurrent proceedings and English court not obliged to decline jurisdiction Council Regulation 44/2001, art. 27.
This was a determination of an issue arising from an application made by the defendant company (AGT) which the court considered in its judgment at [2005] EWHC 2140 (Comm).
The claimant T had brought a first English action and AGT and others had brought proceedings in Greece in 2001 for declarations of non-liability. T commenced a second action in 2004 against AGT which had applied for a declaration under art. 27 of Council Regulation 44/2001 that the English court had no jurisdiction. Thereafter the Greek court had published its judgment.
The court held in [2005] EWHC 2140 (Comm) that before the Greek court gave judgment the English court would have been obliged under art. 27 to decline jurisdiction in the second action. The question was whether that position altered when the Greek court gave judgment.
T argued that art. 27 applied only when there were concurrent proceedings before the courts of different contracting states, and that once there was judgment in the Greek proceedings there were current proceedings only in England. AGT argued that the question whether or not there were concurrent proceedings was to be determined by reference to the position when the proceedings were brought before the court second seised.
Held, dismissing AGT's application:
The court rejected AGT's submission that the question whether or not there were concurrent proceedings was to be determined by reference to the position when the proceedings were brought before the court second seised. Article 27 applied where there were concurrent proceedings at the time that the courtwhich was not first seised made its determination. The question was not whether jurisdiction had been established but whether the court was still seised. Where there were no longer proceedings in the first court it was no longer seised of the matter and the second court did not have to decline jurisdiction in favour of it. Article 27 was concerned with concurrent proceedings and had no application when the first set of proceedings had been discontinued or come to an end. It followed that, because judgment had been given in the Greek proceedings, the court need not decline jurisdiction under art. 27.
Andrew Smith J:
1. This judgment arises from an application made by Alexander G Tsavliris and Sons Maritime Co (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.
2. 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.
3. 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...
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