Tavoulareas v Tsavliris and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LONGMORE,Lord Justice Mance,Mr Justice Evans-Lombe,Lord Justice Thorpe |
| Judgment Date | 05 February 2004 |
| Neutral Citation | [2003] EWCA Civ 1733,[2003] EWCA Civ 1280,[2004] EWCA Civ 48 |
| Docket Number | A3/2003/0756 (B),Case No: A3/2003/0756 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2004 |
[2003] EWCA Civ 1733
Lord Justice Longmore
A3/2003/0756 (B)
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR COSTS
APPLICATION FOR SECURITY FOR COSTS
MR STEPHEN SHEPHERD QC (instructed by Constant & Constant, London) appeared on behalf of the Appellant
MR PETER IRVING (instructed by Howe & Keates, London) appeared on behalf of the Respondent
There are two applications in front of the court today. There is, first, an application for the costs of an earlier application launched by the defendants for the appeal to be struck out because Mr Tavoulareas had not complied with the order of Lord Justice Tuckey to pay £3,600 within 28 days of order, which expired on 8 October.
Mr Shepherd submits bravely that the fact that the money arrived on 21 October does not justify an application for costs. He informed me that 8 October was a Wednesday, that there was only one reminder from the defendants' solicitors on Friday 10 October and —he tells me —that Monday 13 October was Columbus Day when all the banks were shut and so, he submits, it was unreasonable for an application to be issued on 15 October, which was the same day as Mr Tavoulareas' solicitors were able to say the money was on its way. It eventually arrived on 21 October.
It is perfectly clear to me that the defendants were justified in issuing their application to strike out the appeal and they must be entitled to their costs of that application.
The more substantive application before me is an application for security for the costs of the appeal. It is the case that at the time the application was launched Mr Tavoulareas lived in Florida, and the sum asked of £10,000 was in order to cover the extra costs of having to enforce any order of this court on the appeal in America. That application was made in accordance with the decision of this court in Nassau v United Bank of Kuwait [2002] 1 WLR 1868, where I see the name of the defendants' counsel is misspelt. The response to that is that Mr Tavoulareas is going to leave Florida very shortly. He has decided that he wants to return to England after having lived with his mother in her last years in Florida and it is said, therefore, there is no justification for any order. It is also said that there are assets here in a warehouse in respect of which there has not been time to have an independent valuation but nevertheless they do exist and should be enough for to satisfy the defendant's comparatively modest demand.
What influences me is that the assertion that Mr Tavoulareas is coming back to England at the moment is rather vague. There is no fixed address he has given to the court which he will be occupying. By the time any order is made, if it is made, the position no doubt will be clearer but at the moment it is very unclear. It is amazing to me that a sum as small as £3,600 was not paid in accordance with the order of this court. That either means that the appeal is brought by someone who is very short of money (but in the circumstances of this case that seems rather unlikely) or it means that there is a reluctance to comply with the order of this court. I have to conclude that Mr Tavoulareas —in what has obviously become a major grudge match between the parties —is just being difficult about obeying the orders of the court.
It seems to me that in all those circumstances I should make an order for security for costs in the light of the fact that, if it were to have to be enforced abroad, which is quite doubtful, £10,000 is rather a large amount. I propose to make an order for security in the sum of £7,500 only, but it must be an order with teeth. I will hear submissions now from counsel as to the time within which it is to be provided, but, in the light of the history of this matter, the sanction will be immediate dismissal of the appeal if security in the sum of £7,500 is not provided.
[Applications allowed. Security to be provided in sum of £7,500 by 4 pm on 1 December 2003, in default appeal to stand dismissed with costs without further order. Costs today summarily assessed at £3,500 to be paid on or before 4 pm on 1 December, in default appeal to be dismissed with costs]
[2004] EWCA Civ 48
Lord Justice Thorpe
Lord Justice Mance and
Mr. Justice Evans-Lombe
Case No: A3/2003/0756
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH
DIVISION (TOMLINSON J.)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Philip Shepherd QC (instructed by Howe & Keates) for the Appellant
Mr Peter Irvin (instructed by Constant & Constant) for the Respondent
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 200Council 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:
'…. I am informed by the Plaintiff that he had corresponded with the Defendants at an earlier time whilst he was resident in the United States and that they were fully aware of his residency there and not in London."
The defendants' evidence does not deny this statement.
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:
" SERVICE ON PERSON/LEGAL ENTITIES DOMICILED OUT OF THE (GREEK) JURISDICTION
1. If the person or legal entity on whom service is to be effected has their domicile or seat out of jurisdiction, the service is effected on the Public Prosecutor of the court where the cause of action remains pending or where the action is to be brought or the one which ordered the judgment being served, while for actions being brought before the Court of Peace, the service is effected on the Public Prosecutor of the Court of First Instance to which the relevant Court of Peace belongs. For documents which relate to enforcement, service is effected on the Public Prosecutor of the Court of First Instance, in the district of which the enforcement is effected, and in relation to extra-judicial documents, (service is effected) on the Public Prosecutor in the district where the recipient of service has his domicile or known residence, and if there is no domicile or known residence in Greece, service is effected on the Athens Court of First Instance Public Prosecutor.
2. In the case of paragraph 1 (supra) the request for service must specify with accuracy the place and address of the recipient of service
3. The Public Prosecutor – upon receipt of the document – should dispatch it without undue/culpable delay to the (Greek) Minister of Foreign Affairs, who has the obligation to forward the document to the person/legal entity on whom service is to be effected."
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...
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