Seisin

Phillips and another v Symes (a bankrupt) and five others [2005] EWHC 1880 (ChD)

The claimants were seeking an order against the second and third defendants that they pay a substantial sum of money to them. The claim form initiating the proceedings was endorsed as required by CPR rule 6.19(1). On issue by the court office, the claim form was erroneously stamped in red ink on the front with: ‘Not for service out of the jurisdiction.’ That was an error because the claim form was eligible for service in Switzerland by virtue of a certificate verified by the claimants’ solicitor that the High Court had jurisdiction to hear the claim under the Civil Jurisdiction and Judgments Act 1982. The error was noticed by the solicitors but the court official permitted issue on the basis of the certificate. However, the court official did not delete the stamping nor require clean copies. Identical packages (including the erroneously stamped English claim form, a German translation of the claim form, particulars of claim, and a German translation of the particulars of claim together with other documents) were delivered to the senior master for service on the defendants. In accordance with CPR rule 6.28, the senior master arranged for service on the relevant legal authorities under the Hague Convention. The stamp was not removed from the claim form. When the lawyer’s clerk in Switzerland inspected the contents of the package and noticed the stamp on the English claim form, he removed the original claim form from the package and resealed it. Neither defendant was prejudiced by the omission of the claim form as they had received the German translation. The defendants pre-emptively instituted proceedings in the Zurich court against the claimants alleging that those proceedings were the proceedings where the disputes between the parties were definitively pending for the purpose of the Lugano Convention 1988 and were therefore prior in time.