Tavoulareas v Tsavliris and Others (No 2) ; Tavoulareas v AG Tsavliris & Sons Maritime Company
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Carnwath,Lord Justice Buxton |
| Judgment Date | 20 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1772 |
| Docket Number | Case No: 2006 0703 A3 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2006 |
[2006] EWCA Civ 1772
Lord Justice Buxton
Lord Justice Longmore and
Lord Justice Carnwath
Case No: 2006 0703 A3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, COMMERCIAL COURT
Hon Mr Justice Tomlinson
Royal Courts of Justice
Strand, London, WC2A 2LL
PETER IRVIN Esq (instructed by Constant and Constant) for the Appellants
DAVID GOLDSTONE Esq QC (instructed by Howe and Keates) for the Respondent
The question which arises in this appeal is whether a Greek judgment, published on 22nd October 2004 in favour of the appellants, should be recognised by the English courts. Tomlinson J has held [2006] EWHC 414 (Comm) that it should not be so recognised, but granted permission to appeal to this court.
The tangled history of the events leading up to this appeal is set out with admirable clarity and succinctness in the first 34 paragraphs of the judgment. For the purposes of determining the issues raised in this appeal it can (with considerable oversimplification) be summarised as follows:-
(1) the claimant in 2001 Folio 1255, Mr Peter Tavoulareas, asserts (and the defendants Messrs George and Andrew Tsavliris deny) that he advanced money to them in relation to salvage services rendered to the ATLAS PRIDE;
(2) these English proceedings were served in December 2001;
(3) a number of Tsavliris interests began Greek proceedings against Mr Tavoulareas for a declaration that they were not so liable. Those proceedings came to the notice of Mr Tavoulareas on 31st December 2001 in the course of interlocutory skirmishing in the English proceedings but were not formally served on him;
(4) on 17th January 2003 Tomlinson J stayed the English proceedings holding that the Greek court was the court first seised (the Greek proceedings having been served on the Public Prosecutor before the English proceedings were served on Messrs Tsavliris) ;
(5) on 5th February 2004 the Court of Appeal reversed this decision of Tomlinson J, holding that the English courts were first seised since Messrs Tsavliris had been served before the Greek proceedings came to the notice of Mr Tavoulareas (and because Mr Tavoulareas had not, in any event, been served with the Greek proceedings) ;
(6) in the course of September and October 2004 the Greek court (without being informed by either party of the decisions of Tomlinson J or the Court of Appeal) proceeded to hear the Greek proceedings in the absence of Mr Tavoulareas and made a declaration that the Tsavliris interests were under no liability to Mr Tavoulareas;
(7) meanwhile on 16th August 2004 Mr Tavoulareas issued a second set of English proceedings (2004 Folio 675) against Alexander G Tsavliris and Sons Maritime Company claiming against that company a larger sum than that claimed in the earlier proceedings;
(8) the Tsavliris interests have now issued applications in both sets of proceedings for a declaration that the Greek judgment published on 22nd October 2004 be "recognised" pursuant to Article 33 of Council Regulation (EC) No 44/2001 on jurisdiction and recognition and enforcements of judgments in civil and commercial matters ("the Judgments Regulation") .
The reason why the judge held that the judgment should not be recognised was that the judgment had been given in default of appearance and that the defendant in the Greek proceedings (Mr Tavoulareas) had not been served with the document initiating the proceedings. The Tsavliris interests challenge both these propositions and it is now necessary to set out the relevant parts of Article 34 of the Judgments Regulation. They provide:-
"A judgment shall not be recognised:
1. if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;
2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so … ."
Submissions
Mr Peter Irvin for the Tsavliris interests relied on the fact that the Judgments Regulation and its predecessors (the Brussels and later Conventions on Jurisdiction and the Enforcement of Judgments in civil and commercial Matters) were intended to promote the free movement of judgments in the European Community. He further relied on the "Proposal for a Council Regulation" which preceded the Judgments Regulation. The Official Journal of the Community published the proposal on 28th December 1999 and said of the draft article which became Article 34:-
"This Article determines the sole grounds on which a court seised of an appeal may refuse or revoke a declaration of enforceability. These grounds have been reframed in a restrictive manner to improve the free movement of judgments."
Mr Irvin then proceeded to argue that phrases such as "default of appearance" and "service with the document which instituted proceedings or with an equivalent document" should be given a meaning which "leans heavily in favour of recognition of judgments". In general terms there is, no doubt, much to be said for Mr Irvin's submission but the fact remains that both "appearance" and "service" are legal concepts which must be given a legal meaning of some kind otherwise the parties will only get palm-tree justice.
Both "appearance" and "service" are in issue; since "service" chronologically must precede "appearance", I shall consider "service" first.
Service
The judgment in question is not to be recognised
"if the defendant was not served with the document which instituted proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence."
Mr Irvin first pointed to the changes in the wording compared with the wording of Article 27(2) of earlier conventions (the equivalent to Article 34(2) ) . Article 27(2) had the word "duly" before the word "served" and did not have the words "and in such a way as". He then emphasised the expressed need for the defendant to have the relevant document in time for him to prepare his defence and in a form to which he could satisfactorily respond. He concluded by submitting that, so long as the defendant was notified of the proceedings in a time and in a way that enabled him to defend if he wanted to do so, the defendant could not claim that he had not been formally served. In support of this conclusion he cited Hendrickman v Magenta Druck [1996] ECR1–4943 in which the Dutch Hoge Raad asked 3 questions of the European Court including
"(3) Must Article 27(2) of the Brussels Convention be interpreted as meaning that...
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