When is an Action ‘Pending’?

Andrea Merzario Ltd v Internationale Spedition Leitner Gesellschaft GmbH (CA TLR 27 February)

Article 31 of the Convention for the International Carriage of Goods by Road provides: ‘(2) Where in respect of a claim referred to in paragraph 1 of this article an action is pending before a court or tribunal competent under that paragraph no new action shall be started between the same parties on the same grounds unless the judgment of the court or tribunal before which the first action was brought is not enforceable in the country in which the fresh proceedings are brought’. The claimants commenced legal proceedings in England after the defendant had already commenced its own action against the claimants in the Commercial Court of Vienna, for a declaration of non-liability. Although the Viennese proceedings were commenced first, service was effected after service of the English proceedings. An action becomes pending only upon service of the proceedings and not upon issue for the purposes of article 31 and accordingly the Viennese proceedings were not pending, so as to preclude the commencement of the proceedings in England. Furthermore, as the proceedings in Vienna were merely for a negative declaration, they could not in any event have barred a substantive claim in England.