Which state was first seised?

Philips and another v Symes and others (No 4) HoL TLR 28 January; SJ 29 January p28

A court’s obligation under art 21 of the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988 to decline jurisdiction in favour of another court only arises if the parallel proceedings had been definitively brought before a court in another state (paragraph 14) and it is for each state to determine when that was. English law had hitherto determined that proceedings become definitively pending only when they are served on the defendant. The claimants issued a claim form on 16 December 2004 against a Swiss national and a Swiss company of which she was the sole proprietor. The day before issue, the claimants had obtained a worldwide freezing order against the defendants and had undertaken to issue the claim form and serve it on the defendants with particulars of claim and various other documents including the order. In issuing the claim form, the court staff had erroneously stamped it ‘not for service out of the jurisdiction’. That had been a plain mistake because it had expressly been rendered eligible for service out of the jurisdiction by a statement in it, verified as true, that the High Court had power under the Civil Jurisdiction and Judgments Act 1982 to hear the claim and that no proceedings concerning it were pending in any other relevant country. Nevertheless the foreign process section of the High Court had accepted the document for service. On receipt of the package of documents to be served on the defendants, the Swiss court removed the claim form because of the words stamped on it, and accordingly it was not served with the other documents. However, the documents which were served, on 19 January 2005, included both a German translation of the claim form and particulars of claim setting out in greater detail the nature of the claimant’s case. On 3 February 2005, the defendants issued proceedings in Switzerland against the claimants seeking negative declaratory relief in respect of the same facts. Under Swiss law, proceedings were definitively pending as soon as issued. The Swiss court therefore became seised of the Swiss proceedings on 3 February 2005. The English court was therefore required to decline jurisdiction if the absence of the claim form meant that the English proceedings were not served on 19 January. The trial judge dispensed with service of the claim form under CPR 6.9 and therefore declared the High Court had become seized of the proceedings as against the defendants on 19 January 2005. The Court of Appeal unanimously allowed the defendants appeal on the basis that an order under r6.9 would by its very nature involve the retrospective validation of what ex hypothesi would otherwise fall to be regarded as ineffective service.