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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Nussberger & Anor v Phillips & Anor [2006] EWCA Civ 654 (19 May 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/654.html Cite as: [2006] 1 CLC 819, [2006] 1 WLR 2598, [2006] ILPr 38, [2006] 2 All ER (Comm) 305, [2006] CP Rep 38, [2006] 3 All ER 838, [2006] EWCA Civ 654, [2006] WLR 2598

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION)
Mr Justice Peter Smith
HC04C03898

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 May 2006

Lord Justice Neuberger:

Introduction

1. This is an appeal brought by Frieda Nussberger ("the defendant") and a Swiss company, of which she is the sole proprietor and sole officer, Galerie Nefer AG ("Nefer") (together "the defendants"), against a decision of Peter Smith J handed down on 19 August 2005. The effect of his decision is that, pursuant to the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988 ("the Lugano Convention"), the High Court can entertain the instant proceedings brought by Jonathan Phillips and Robert Harland ("the claimants") against the defendants, despite the existence of proceedings brought in Switzerland by the defendants against the claimants.
2. The instant proceedings started on 16 December 2004, when the claimants, in their capacity of administrators of the estate of the late Christo Michailidis, issued a claim form out of the High Court in London. Their claim against the defendants is for (a) US$3m, less such sums as they may be paid by Geoff Rowley and Kevin Hellard ("the Trustees"), the trustees in bankruptcy of Robin Symes, or (b) US$2.7m on an account, or (c) damages for wrongful interference with property. The US$3m is additionally claimed from the Trustees and Mr Symes, who are also defendants. The claimants further claim US$300,000 and damages from Bracher Rawlins ("Brachers"), the sixth defendants.
3. On 15 December 2004, the day before the claim form was issued, Peter Smith J granted the claimants a worldwide freezing order against the defendants, restraining them from disposing of their assets, up to a value of US$3m.

The background to these proceedings

4. These proceedings have their origin in a partnership between Mr Symes and Mr Michailidis, which carried on business dealing in antiquities (partly through a company owned by Mr Symes). After Mr Michailidis died in July 1999, the claimants brought proceedings against Mr Symes. In March and April 2003, those proceedings resulted in a default judgment in favour of the claimants, a direction for the taking of partnership accounts and enquiries, the bankruptcy of Mr Symes, and the appointment of the Trustees as his trustees in bankruptcy.
5. Meanwhile, on 24 July 2002, Hart J had put in place an interlocutory regime ("the regime") which enabled the business to continue during the currency of the dispute. Peter Smith J directed that that regime should continue after the default judgment.
6. Pursuant to the regime, a statue ("the first statue") was sold by Mr Symes, purportedly to Philos Partners Inc of Cheyenne, Wyoming, USA, for US$1.6m. The claimants then discovered that the sale was in fact to Sheik Al-Thani for US$4.5m, so that Mr Symes had effectively removed some US$2.9m from the jurisdiction. In March 2003, the claimants made an application ("the first application") to the court for appropriate relief against Mr Symes. The claimants also claimed a determination whether, as Mr Symes alleged, the defendants had an interest in the first statue. The defendant swore an affidavit to support Mr Symes's case in this connection.
7. Neither of the defendants took part in the proceedings arising out of the first application. The hearing took place in May 2003 before Peter Smith J, and a Swiss lawyer retained by the defendant gave evidence. The Judge decided that (subject to the rights of Mr Michalidis's estate) Mr Symes (through the company to which I have made reference) was entitled to the entire beneficial interest in the first statue. An appeal against that decision by Mr Symes was subsequently dismissed by this Court.
8. The defendants also featured in connection with another contempt committed by Mr Symes. This concerned a different statue ("the second statue") which he had apparently offered to sell to the Sheikh for US$8m. On learning of this, the claimants issued an application on 11 August 2003 ("the second application") seeking to commit Mr Symes for breach of the terms of the regime.
9. The claimants eventually established that Mr Symes had sold the second statue to Nefer on 14 February 2003 for US$3m, but that no money had been paid by Nefer. This was said to be justified on the basis that the defendant, who of course owns Nefer, had various claims exceeding US$3m which she was entitled to set off against the money due for the second statue. Eventually, Mr Symes admitted that his sale of the second statue had been in contempt of court.

The course of these proceedings

10. In these proceedings, the claimants' claim against the defendants for US$3m is based on the contention that this is the amount which the defendants should have paid for the second statue. The claimants' alternative claim for US$2.7m is based on the fact that US$300,000, now paid into court, was received by Brachers for Mr Symes, as commission for his efforts in selling the second statue.
11. The defendant resides in the canton of Aargau in Switzerland, and Nefer's registered office is in Zurich, Switzerland. Hence, these proceedings had to be served on them in accordance with the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 ("the Hague Convention"). Articles 2 and 3 require each contracting state to designate a "Central Authority" to effect service of such documents as are forwarded to it with a request in the appropriate form by the "authority or judicial officer competent under the law of the state in which the documents originate". The competent judicial officer for English proceedings is the Senior Master, and the relevant Swiss Central Authority is, in the case of the defendant, the Obergericht (or Superior Court) of Aargau, and, in the case of Nefer, the Obergericht of Zurich.
12. Accordingly, the claimants' solicitors set about arranging for service of the present proceedings on the defendants. They prepared an appropriate claim form, which contained a statement, verified by a certificate signed by their Mrs Eyre, that the High Court had power under the Civil Jurisdiction and Judgments Act 1982 to hear the claim and that no proceedings concerning the claim were pending between the parties in Scotland, Northern Ireland or any other convention territory or any Contracting State as defined in section 1(3) of the 1982 Act.
13. However, on issue by the Court Service, the claim form was stamped prominently on the front, "Not for service out of the jurisdiction". This appears to have been a plain error, because the claim form was expressly rendered eligible for service out of the jurisdiction, by virtue of the rubric at its end and the certificate verified by Mrs Eyre. The claimants' solicitors noticed the error and prepared fresh claim forms, in case the Foreign Process Section of the High Court refused to accept the certified copies of the claim form with the stamp, when they were lodged for forwarding to the Senior Master for service abroad.
14. On 31 December 2004, two identical packages, one for service on the defendant and the other for service on Nefer, together with requests for service abroad, were filed by Ms King of the claimants' solicitors with the Foreign Process Section. Those packages contained:

i) An official certified copy of the original claim form (the "copy claim form") erroneously stamped as explained above;

ii) A certified German translation of that claim form (with the stamp);

iii) The particulars of claim;

iv) A certified German translation of the particulars of claim;

v) An acknowledgment of service form, with a certified translation;

vi) Documents arising out of the freezing order made on 15 December.

15. Although an official in the Foreign Process Section queried the inappropriate stamp on the copy claim forms, she accepted the forms, once Ms King pointed out that they contained the appropriate rubric at the end. The packages, together with the requests, were forwarded to the Senior Master, so that service could be effected on the defendants in Switzerland in accordance with the Hague Convention. The Senior Master then arranged for service by the relevant Obergericht.
16. Meanwhile, to enforce the freezing order, the claimants had to obtain attachment orders against the defendants in Switzerland. Accordingly, the claimants issued requests for attachment in the Bezirksgericht (or District Court) of Zurzach in Aargau ("the Zurzach Court") and in the Zurich Obergericht. The attachment in the latter court was refused, and the claimants' appeal against that refusal was dismissed. However, the Zurzach Court granted attachment against both defendants on 20 December. Next day, the defendant was served with the attachment order and other documents including a copy of the freezing order.
17. The defendant applied to set aside the attachment order, and that application was heard in the Zurzach Court on 19 January 2005. The attachment order was discharged. More importantly for present purposes, the Zurzach Court Judge (no doubt at the request of the Aargau Obergericht) handed the defendant a package, which the claimants' representatives understandably believed to contain all the documents in the package which had been filed in the Foreign Process Section.
18. However, unknown to the claimants or their advisers, an official of the Zurzach Court had inspected all the documents contained in the package which had been sent by the Senior Master, and, on examining the copy claim form, the official noticed the stamp on it, removed it from the package, and resealed the package. Accordingly, the package served on the defendant contained all the documents which had been intended to be served on her, save the copy claim form. Although representatives of the claimants (including their solicitors) were in the Zurzach Court on 19 January, they were not told of the removal of the copy claim form from the package.
19. More than seven weeks later, on 11 March 2005, an official of the Zurzach Court sent a certificate to the Senior Master. It recorded that all the documents sent to the Zurzach Court had been served on the defendant, with the exception of the copy claim form owing to the stamp on it.
20. Service on Nefer was not achieved either. This was apparently because of an error on the part of the Swiss post office, also on or about 19 January 2005. The claimants only learned of this when they received a letter from the Swiss post office in March 2005.
21. Meanwhile, on 4 February 2005, the defendants instituted proceedings ("the Swiss proceedings") against the claimants in the Zurich Obergericht. In those proceedings, the defendants sought (a) declaratory relief which mirrors the relief the claimants seek in these proceedings (in other words, declarations that the defendants are not liable to the claimants as claimed); and (b) declaratory relief as to their ownership of the first statue (in other words, determination in Switzerland of the question resolved in the first application to which the defendants were not parties, although afforded the opportunity to be so).
22. The Swiss proceedings were instituted without prior notice to the claimants, who were first told of them on 9 February by the defendants' lawyers in a letter, in which it was contended that, by virtue of the provisions of Article 21 of the Lugano Convention, the Swiss proceedings had priority over these proceedings, and that the High Court was obliged to stay these proceedings as against the defendants. This argument relied on the proposition that that Convention requires priority to be given to the proceedings in the court which is "first seised", and that, at that time, the Zurich Obergericht was seised of the Swiss proceedings, and that the High Court was not seised of these proceedings.
23. The claimants then issued an application for an order under CPR6.9 (or, which is no longer pursued, under CPR6.8). The purpose of the application was to have the court's sanction for dispensing with service of the copy claim form on the defendant, on the basis that that would enable these proceedings to obtain priority over the Swiss proceedings pursuant to Article 21 of the Lugano Convention. The defendants contended that such an order would not achieve priority for these proceedings, or, if it would do so, that it would be wrong in principle to grant the claimants the relief they sought.

The Lugano Convention

24. That was the issue before Peter Smith J, and it must be determined by reference to the Lugano Convention, to which both Switzerland and the United Kingdom are parties. The provisions of Title II of the Convention mean that the High Court has jurisdiction to entertain these proceedings against the defendants, and that the Zurich Obergericht has jurisdiction to entertain the Swiss proceedings. If the Trustees, Mr Symes and Brachers (all of whom are domiciled in England and Wales) were not their co-defendants, the defendants would have had the right to insist on being sued in their country of residence, so that the claimants would have had to bring these proceedings in Switzerland.
25. Article IV of Protocol No. 1 to the Lugano Convention provides that "Judicial and extrajudicial documents drawn up in one Contracting State which have to be served …in another Contracting State shall be transmitted in accordance with procedures laid down in the conventions…concluded between the Contracting States". In other words, in relation to this case, the Lugano Convention effectively incorporates the provisions for service contained in the Hague Convention.
26. Article 21 of the Lugano Convention ("Article 21"), which is the centrally relevant provision for present purposes, provides as follows:

"Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court."

27. It is common ground that these proceedings (as against the defendants at any rate) and the Swiss proceedings (at least in so far as they seek declarations relating to the second statue and the sale and the proceeds of sale thereof) "involv[e] the same cause of action" and are "between the same parties", and that, accordingly, Article 21 is engaged.
28. It is also common ground that the Zurich Obergericht became seised of the Swiss proceedings when they were issued, namely on 4 February 2005. However, although it is in issue on this appeal (as it was below), the rule in this country, at least as accepted by the Judge, is that an English court only becomes seised of proceedings when the claim form is served.
29. Accordingly, if the copy claim form had not been removed from the package before it had been handed to her on 19 January 2005, the defendant would have been properly served with these proceedings on 19 January 2005, and the High Court would have thereupon been seised of these proceedings as against the defendant. If the High Court had been properly seised of these proceedings on 19 January 2005 as against the defendant, then it is conceded on behalf of the defendants that the fact that Nefer was not served before the issue of the Swiss proceedings is irrelevant. So the only reason that there is any issue in this case is because the copy claim form was removed from the package before it was served on the defendant.

The Zurzach Court's non-service of the claim form and the Hague Convention

30. The lawfulness of the Zurzach Court's failure to serve the copy claim form, and the lawfulness of its only informing the Senior Master of this fact some seven weeks later, were the subject of some debate. As they represent free-standing issues, they are probably best discussed before turning to the central issues. However, I have grave doubts whether it would be right for an English court to rule on whether the actions of another State breached an international Convention, not least when that State has not been afforded the opportunity to make representations on the facts, which are by no means wholly clear, or on the effect of the Convention, which is not straightforward.
31. The removal of the copy claim form from the packages delivered through the Senior Master for service on the defendants, even if unauthorised, was understandable. One can well see how the Zurzach Court official may have considered that, in removing the copy claim form from the package before serving it, he was complying with the request, possibly on the basis that the document had been unintentionally included in the package. Even if it was unauthorised, the removal ultimately resulted from the mistaken stamping of the claim form and the subsequent acceptance of copies for service abroad, both acts of the English Court Service..
32. Peter Smith J concluded that it was wrong of the Zurzach Court to have removed the copy claim form from the package which was provided with the request for service on the defendant in accordance with the Hague Convention. To understand that, it is necessary to consider some of the provisions of that Convention, in addition to those discussed in [11] above.
33. Article 4 provides that if the "Central Authority", the Aargau Obergericht, considers that "the request [for service] does not comply with the provisions of the…Convention, it shall promptly inform the applicant", the Senior Master. Article 13 permits non-compliance with an otherwise valid request "only if [a state] deems that compliance would infringe its sovereignty or security". (It is not suggested that Article 13 was engaged here). Subject to that, Article 5 requires the Central Authority itself or "an appropriate agency", in this case the Zurzach Court, to serve the documents the subject of the request in accordance with the request. Article 6 requires the Central Authority to certify how service has been effected or why it has not been effected.
34. On receiving the request form and accompanying package, it is, I believe, common ground that the Swiss Central Authority (or its authorised agent, the Zurzach Court) was entitled to "perform…a summary review to ascertain that the request satisfie[d] the requirements laid down by the [Hague] Convention". (The quotation is from page 48 of the "Provisional Version of the New Practical Handbook on the Operation of the Hague Convention", 3^rd edition 30 July 2003). However, the argument accepted by the Judge was that the Zurzach Court was not entitled to refuse to serve a document, which it had been asked to serve by a request in the form stipulated by the Hague Convention, merely because that document was stamped in the terms in which the copy claim form was stamped in this case.
35. I see the force of that, and the conclusion may be right, but it is by no means clearly so in my view. The action of the Zurzach Court might well have been justified on the basis that the "request" for service on the defendant in this case extended not merely to the request form, but also to what was endorsed on the documents enclosed with it. On that basis, the request was ambiguous or inconsistent, in that the request form asked the Swiss Central Authority to serve a document which contained an unambiguous instruction not to serve it out of England. In other words although the request form, read on its own, was unambiguous in asking for service of everything in the package, the stamp on the copy claim form was an equally unambiguous instruction not to serve that very document. It may be inappropriate to invoke in connection with this analysis the rule that the particular prevails over the general, but the analysis satisfies me not only that the Zurzach Court official may have been entitled to remove the copy claim form from the package, but also, at the very least, that, even if not entitled to do so, it is understandable why he did.
36. I turn to the seven week gap between the service of the package without the copy claim form and the sending of the certificate of service to the Senior Master. The claimants contend that, if the Zurzach Court was entitled not to serve the copy claim form, it could only be on the basis that the provisions of Article 4 applied, and that sending the certificate in mid-March 2005 was plainly not "prompt". Even assuming that contention is correct, I doubt that it gets the claimants anywhere. Given the relative flexibility of the concept of promptness, and the fact that the Article 4 certificate had to be sent to the Senior Master, it is difficult to quarrel with the contention that, if there had been compliance with Article 4 (assuming it applied), the claimants would very probably not have been able to serve the copy claim form by 4 February 2005, when the Swiss proceedings were issued.
37. However, there may be a more fundamental answer to the argument that the Zurzach Court failed to comply with Article 4 of the Hague Convention. I am not convinced that the best way of justifying the Zurzach Court's non-service of the copy claim form is by reference to that Article. As indicated above, it seems to me that the best way of justifying the non-service is on the basis that the stamped words resulted in the document not being the subject of a request under Article 3 of the Hague Convention at all. On that basis, it could be said that there was no question of the request for service not being in accordance with the Hague Convention. The request, insofar as it related to the other documents in the package, accorded with that Convention, and was complied with. As to the copy claim form, runs this argument, there was no request for service: on the contrary, the very entity which was requesting service of a number of documents in Switzerland, namely the High Court, had made it clear that the copy claim form was not to be served out of England. On this basis, the only certificate which the Hague Convention required would be under Article 6, which contains no express time limit, and such a certificate was provided on 11 March 2005.
38. However, it is unfortunate that the Zurzach Court Judge did not inform the claimants' representatives on 19 January 2005, when serving the package on the defendant, that the copy claim form had been removed from the package. (Of course, there may be an explanation. Thus, the official who had removed the copy claim form may not have told the Judge.) It is also unfortunate that the Article 6 certificate, recording service of the documents in the package, save the copy claim form, was not provided to the Senior Master by the Zurzach Court for some seven weeks. (Again, it is right to add, in the absence of the Swiss authorities having been given the opportunity to provide evidence or make submissions, that there may be an explanation for this delay).

The central issues between the parties

39. Mr Steinfeld QC, Mr Millett QC, and Ms Chappell who appear for the claimants, contend that the English High Court was "first seised" as against the Zurich Obergericht, on the basis of two alternative arguments. The first argument (developed by Mr Millett) is that the High Court was seised of these proceedings against the defendants on 31 December 2004, when the packages (including the copy claim form) were delivered to the Senior Master for service on the defendants. The alternative argument (as advanced by Mr Steinfeld) is that the High Court was seised of the proceedings, when the defendant was handed the package (albeit without the copy claim form) on 19 January 2005, by virtue of the claimants' ability to invoke CPR3.10 and CPR6.9.
40. In his full and thorough judgment, the Judge rejected the first argument, because he accepted the contention of Mr Martin QC, who appears with Mr Lowe for the defendants, that there was clear and binding authority for the proposition that the English courts were not seised of proceedings against a foreign defendant until that defendant had been served with the copy claim form in those proceedings. However, the Judge accepted the second argument. He held that, although the copy claim form was not in fact served on the defendant on 19 January 2005, he had discretion under CPR6.9 to dispense with its service, that he should exercise that discretion, and that, in the light of the provisions of CPR 3.10, these proceedings thus achieved Article 21 priority over the Swiss proceedings.
41. Article 21 has been metaphorically described as a "tie-break rule" which operates on the basis of strict chronological preference": see per Bingham LJ in Dresser UK Ltd –v- Falcongate Freight Management Ltd [1992] 1 QB 502 at 514. As he explained, the European Court of Justice ("ECJ") in Zelger –v- Salnitri [1984] ECR 2397 at 2408 held that the court first seised:

"is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned."

42. Bingham LJ (with whom Sir Stephen Brown P and Ralph Gibson LJ agreed) went on to say at 523 that it was in his judgment "artificial, far-fetched and wrong to hold that the English court is seised of proceedings or that proceedings are decisively conclusively, finally or definitively pending before it, upon mere issue of proceedings". He then stated that the general rule (which there was no reason not to apply in that case) was that "the English court first became seised of…proceedings, which first became definitively pending before it, when the defendants were served".
43. In Neste Chemicals SA –v- DK Line SA ("The Sargasso") [1994] 3 All ER 180, Steyn LJ (with whom Peter Gibson LJ and Sir Tasker Watkins agreed) considered the decision in the Dresser case. The upshot was that Bingham LJ's approach was reinforced and simplified (by virtue of what Lord Steyn, in the Canada Trust case referred to below, called "a relatively narrow point"). Steyn LJ said at 188b that "the general thrust of the Dresser UK Ltd case is not only binding on us but.…is correct". He immediately went on to state that there were no "exceptions to the rule that date of service marks the time when the English court becomes definitively seised of proceedings". He also said at 188d that the ECJ in the Zelger case had "emphasise[d] the importance of certainty in national procedural laws", and that "a 'date of service' rule would be readily comprehensible not only in England but also in other Contracting States."
44. It is right to mention that the three cases that I have been discussing were concerned with the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters ("the Brussels Convention"), rather than the Lugano Convention. Not surprisingly, it is common ground that the same principles apply to both Conventions, and that the interpretation of these Conventions, and the way they are to be applied by national courts, must be the same.

The claimants' first point: seisin occurred before service on the defendant

Is the rule established in the Dresser and Sargasso cases binding on us?

45. Insofar as the claimants' first point involves departing from the clear principle established in the Sargasso case, I would not be prepared to accede to it, unless satisfied that there had been some subsequent change in the law. It is argued by Mr Millett that the statements I have quoted from the judgment of Steyn LJ were strictly obiter. I am not convinced that that argument is right, but it is pointless to consider it, because, even if the statements were obiter, I think it would be highly undesirable, indeed simply wrong, to depart from the clear and authoritative rule laid down in that case. Steyn LJ's unequivocal views were shared by the other two members of the court, they have not been treated as being other than authoritative in this jurisdiction short of the House of Lords, and they have no doubt been acted on in many subsequent cases. These points are reinforced by "the importance of certainty" in this area.
46. Nonetheless, Mr Millett's argument has considerable practical attraction, quite apart from its basis in legal theory (as discussed by Lord Hoffmann in the Canada Trust case referred to below). First, at least so far as this case is concerned, it seems odd that the Swiss courts should be seised of proceedings as soon as they are issued in Switzerland, whereas English courts are not seised of proceedings on issue, but only when the claim form is served. On that basis, Bingham LJ's tie-break is fought out on a very sloping tennis court, scarcely consistent with the spirit of the level playing field envisaged by the CPR. Secondly, it will be a very rare case where there can be any doubts as to when the Senior Master was provided with documents for service, or, indeed, about the identity of those documents. There is much more room for doubt in an English court as to whether, and with what documents, a defendant was served abroad.
47. Thirdly, as Mr Millett points out, the rule he advocates would avoid the problem which would arise if those responsible for serving the document abroad did not comply with their obligations. The rule laid down in the Sargasso case seems potentially unfair on a claimant, given that he has no say or control over how and when documents are served under the Hague Convention, unlike in the case of domestic service (see CPR6.2 to 4).
48. Further, the Brussels Convention now no longer applies in any EU member state (apart from Denmark), having been replaced by Council Regulation (EC) No 44/2001 ("the 2001 Regulation"), which thus applies as between twenty-four of the twenty-five EU member states. The 2001 Regulation unifies the seisin rule through Article 30, which states that seisin occurs in the court of any contracting state "when the document instituting the proceedings is lodged with the court" provided that the claimant does not fail to take steps to serve the defendant appropriately.
49. However, these reasons do not persuade me that we should adopt Mr Millett's argument. The approach laid down by Bingham LJ in the Dresser case, effectively transmuted into an invariable rule by Steyn LJ in the Sargasso case, is clear. In their judgments, they refer to the court being seised of proceedings against foreign defendants only "when [those] defendants are served" or "when the defendant has been served", and that must be a reference to service with the writ (now, of course, no doubt for good reasons, the claim form). The provision of documents to the Senior Master is for the purpose of service on the defendant; ex hypothesi it appears to me that the provision of documents to the Senior Master for that purpose cannot of itself be service on the defendant concerned.
50. Mr Millett suggests, however, that the rule established by the decisions in the Dresser and Sargasso cases must be reconsidered in the light of two subsequent developments, namely:

i) The decision of the House of Lords in Canada Trust Co –v- Stolzenberg (No. 2) [2002] 1 AC 1;

ii) The replacement of the Rules of the Supreme Court ("RSC") by the CPR.

I shall consider those arguments in turn.

The claimants' argument based on the Canada Trust case

51. Mr Millett's first argument is that the decision of the House of Lords in the Canada Trust case entitles, indeed requires, this court to reconsider the test for seisin laid down in the Dresser and Sargasso cases.
52. In his speech in the Canada Trust case, at 11B to 11F, Lord Steyn indicated that, although the decisions in the Dresser and Sargasso cases had been subject to some adverse criticism, that criticism might not be justified, and, more importantly for present purposes, that the Canada Trust case was not an appropriate occasion for the House of Lords to consider the point. At 11G, he described the rule established in the Dresser case, as approved and strengthened in the Sargasso case, "as correctly stat[ing] the present practice and law in England". Unless the other speeches can be shown to be inconsistent with that observation, it renders it, in my opinion, even more inappropriate than it otherwise would be for this court to depart from the view expressed in the Sargasso case.
53. In his speech, Lord Hoffmann considered the question of when the English courts are seised of proceedings in a stimulating and illuminating discussion at 15G-21E. As Mr Millett says, that discussion indicates severe doubts on the part of Lord Hoffmann as to much of the justification advanced by Bingham and Steyn LJJ for the "date of service" rule, and a degree of support for the rule now propounded on behalf of the claimants. Thus, at 18D-E, Lord Hoffmann referred to "the fact that in some jurisdictions, 'service' did not necessarily mean personal service. It could be simply the delivery of the document for service to an official of the court." Although the other three members of the committee expressed some provisional support for Lord Hoffmann's views, they agreed with Lord Steyn's speech, suggesting that the issue discussed by Lord Hoffmann might well be fit for consideration on another occasion.: see at 23D (per Lord Cooke of Thorndon) 26B (per Lord Hope of Craighead) and 26D (per Lord Hobhouse of Woodborough).
54. In these circumstances, it seems to me that the position is this. The House of Lords in the Canada Trust case has plainly not over-ruled or even, in the case of the majority, reconsidered the rule laid down in the Dresser and Sargasso cases, but there is reason to think that, in an appropriate case, it may be prepared to consider whether or not to uphold the rule. This view appears to be reinforced by observations in [50] to [53] in the judgment of this court in Knauf UK GmbH –v- British Gypsum Ltd [2002] 1WLR 907.

The claimants' argument based on the CPR

55. If Mr Millett's second argument is to succeed, the CPR would have to make it clear that service on a defendant out of the jurisdiction was deemed to be effected when the claim form was lodged with the Senior Master before we could be justified in departing from the decisions which I have been discussing. In my view, analysis of the provisions of CPR6 leads to the conclusion that, as one would expect, a foreign defendant is not served with documents under the Hague Convention until he receives those documents.
56. CPR6.7(1) is concerned with "Deemed service", and it provides that a "document served" by "[d]elivering [it] to or leaving it at a permitted address" is "deemed to be served" on "the day after it was delivered to or left at the permitted address". This rule follows the rules relating to methods of service, and is in Part I of CPR6, "General Rules about Service". The "Special provisions about service out of the jurisdiction" are in Part III of CPR6.
57. CPR6.19 permits a claim form to "be served on a defendant out of the jurisdiction" without further permission where it would be allowed under the 1992 Act, which would include any case governed by the Hague Convention. The following provisions, CPR6.20 to 6.31, govern the procedure for service of proceedings out of the jurisdiction. CPR6.25(1) stipulates how "the claim form may be served" where "a claim form is to be served on a defendant in any country which is a party to the Hague Convention". CPR6.26 applies where service is to be effected in a case such as the present. CPR6.26(2) requires a claimant to file specific documents, which include the documents included in the package in this case. CPR6.26(3) provides that, where those documents are filed, the relevant court officer will "seal the copy of the claim form" and "forward the document to the Senior Master". CPR6.26(4) requires the Senior Master to "send documents forwarded under this rule" to "the authorities designated under the Hague Convention".
58. It seems to me clear from these provisions in Part III of CPR6, that they envisage that "service" of a document on a defendant out of the jurisdiction involves the same concept as "service" of a document on a defendant in the jurisdiction, namely the provision of the document to him personally (although there will be exceptions such as substituted service). The language of the relevant rules is not uninstructive. A claim form is "served" on a defendant, whereas it is "file[d]" with the court office, "forward[ed]" to the Senior Master, and "sen[t]" to the designated foreign authority in order that it may be "served" on the foreign defendant.
59. However, when one goes back to CPR6.7, the word used is "delivered". Accordingly, says Mr Millett, the copy claim form in this case was "delivered" to the Foreign Process Section and to the Senior Master, as required by Part III, and that was deemed to be "service". Even if that argument were correct, it would merely establish that the Section or the Senior Master was served, not that the defendant was served, and it is service on the defendant which is the step which needs to be established according to the Dresser and Sargasso cases. However, to my mind, the argument does not even get that far: CPR6, and, in particular, as its opening words show, CPR6.7 is concerned with service, and, therefore, there was no relevant "deliver[y]" of the claim form in this case until it was served on the defendant.

The claimants' second point: the defendant was sufficiently served

Introductory: the claimants' case

60. I turn, then, to the point upon which the claimants succeeded below. On the face of it, in the light of what Steyn LJ called the "date of service" rule, the non-service of the copy claim form on 19 January 2005 means that the High Court was not seised of these proceedings before the Zurich Obergericht was seised of the Swiss proceedings on 4 February 2005, so these proceedings should be stayed under Article 21. The claimants' case is that CPR6.9 and CPR3.10 can be invoked to cure the effect of the failure to serve the claim form, so that the High Court was seised of these proceedings on 19 January.
61. In order to place the argument in its context, I must refer to parts of the CPR and most of the relevant rules are well summarised in the judgment below:

"130. English proceedings are commenced by the issue of a claim form (CPR7.2 (1)). After a claim form has been issued the general rule under CPR7.5 is that the period [within which the claim form must be served] is 4 months after the date of issue. Where the claim form is to be served out of the jurisdiction that period is 6 months. Both those periods have now expired. Under CPR7.6(2) an order extending the period generally has to be applied for within the period for service of the claim form … [Under CPR7.6(3), i]f a claimant applies outside the period an order can be made extending time but only if the court has been unable to serve the claim form or the claimant has taken all reasonable steps to serve the claim form but has been unable to do so and in either case the claimant has acted promptly in making the application. Such an application must be supported by evidence that may be made without notice.

131. There are separate general provisions in respect of service which have to be considered at the same time. Under CPR6.8 provided there is good reason the court can authorise a method of service not permitted by the rules. Under CPR6.9 the court can dispense with service of a document. Finally in this context CPR3.10 provides that where there has been an error of procedure such as a failure to comply with a rule or practice direction the error does not invalidate any step taken in the proceedings and is not invalidated unless the court so orders but the court may make an order to remedy the error."

62. I must also refer to CPR7.4, which deals with service of the particulars of claim. By CPR7.4(1), they must be served on a defendant with the claim form or within 14 days of its service. CPR7.4(2) stipulates that the particulars of claim must be served "no later than the latest time for serving a claim form".
63. It is not possible to invoke CPR3.10 on its own to extend time for service of the claim form, or to override the failure to serve the claim form, not least because there are other, specific, rules dealing with extending time and dispensing with service in such a case, namely CPR7.6(2)(3) and CPR 6.9 respectively. That is the effect of two decisions of this court, namely Vinos –v- Marks & Spencer plc [2001] 3 All ER 784 (see at [20] and [27])and Elmes –v- Hygrade Food Products plc [2001] EWCA 121 (see at [12] and [13]).
64. The claimants' argument does rely on CPR3.10, but on a rather more sophisticated basis than it was unsuccessfully relied on in those two cases. The way in which the argument is put involves two stages. First, it is said that CPR6.9 can and should be invoked to dispense with service of the claim form. Secondly, it is said that, as a result, CPR3.10 validates the service of the proceedings, and in particular, the service of the particulars of claim, on the defendant on 19 January 2005, as a result of which seisin occurred on that day.
65. For the defendants, Mr Martin contends that

i) The Judge should not have dispensed with service of the claim form under CPR6.9 even if this case had not engaged the Hague and Lugano Conventions ("the Conventions");

ii) Dispensing with service would be ineffective (or, if effective, it should not be invoked) to give these proceedings priority over the Swiss proceedings under Article 21 of the Lugano Convention;

iii) Even if that is wrong, it would be wrong to dispense with service, in this case, especially as service is governed by the Hague Convention.

I shall take those arguments in turn.

Could CPR6.9 be invoked if this were a domestic case not involving the Conventions?

66. The question considered under this head of argument is slightly artificial. It assumes (consistently with the facts) that the purpose of the application under CPR6.9 is to enable these proceedings to gain the priority over the Swiss proceedings, which it is common ground that they would have had if the copy claim form had been served on the defendant on 19 January 2005. To that extent, Article 21 can be said to be in point. However, the argument otherwise ignores the international dimension, and in particular, whether it is possible or appropriate to invoke CPR6.9 for such a purpose in light of the terms of the Conventions and the English and ECJ jurisprudence in that connection.
67. On this slightly artificial basis, the issue is whether the Judge would have been right, or at least within his powers, to exercise his jurisdiction under CPR6.9 to dispense with service of the copy claim form A number of decisions of this court, culminating with Kuenyehia –v- International Hospitals Group Ltd [2006] EWCA 21, show that a claimant, who has not served a defendant with a claim form, can invoke CPR6.9 after the time for service has expired, but only in exceptional circumstances.
68. In Anderton –v- Clwyd County Council (No. 2) [2002] 1 WLR 3174, at [59], Mummery LJ, giving the judgment of this court, concluded that, even in a case where CPR7.6 could not be relied on, there was power under CPR6.9 "to dispense with service of the claim form" albeit that the power to do so "is only exercisable retrospectively in exceptional circumstances". At [18] of his judgment in Wilkey –v- British Broadcasting Corporation [2003] 1 WLR 1, Simon Brown LJ (with whom the other two members of the court agreed) suggested that, in cases where late service occurred after the decision in the Anderton case, a tougher line should be taken on applications which sought to invoke CPR6.9 than in relation to cases where the late service occurred before the Anderton case.
69. The fullest guidance in this field was, I think, given in the judgment this court delivered by Dyson LJ in Cranfield –v- Bridgegrove Limited [2003] 1 WLR 2441, which involved five conjoined appeals. In relation to one of them, Murphy –v- Staples UK Ltd, it was decided that the claim form had been properly served, but the court went on to consider whether, if that was wrong, relief should be granted underCPR6.9. In [88], the court concluded that, in the light of "the very unusual circumstances" of the case, as described in [87] of its judgment, it would be right to grant such relief.
70. In my judgment, the reasons given in [87] of that case for reaching that conclusion give strong support for the claimants' contention that, subject to the international aspect, CPR6.9 can be invoked here. First, in this case, as in the Murphy case, the defendant received a copy of the claim form in time. In that case, it was a simple copy of the claim form, whereas here it was a certified translation into the language of the country of service. Secondly, the circumstances of the Murphy case were "very unusual" in the context of domestic service. The facts of the present case, in the context of service out of the jurisdiction, appear to me to be even more unusual. Thirdly, in that case as here, there was no question of the defendant in any way having been misled or disadvantaged as a result of the failure to serve the claim form.
71. Fourthly, in the Murphy case, the claimant's solicitors were to blame for what had happened, and no other person was at fault. Here, the claimants' solicitors noticed the inappropriate stamp, and took the risk of not correcting that obvious error. However, they were no more to blame than the solicitors in the Murphy case. Further, there is a real argument that the English High Court was also to blame, and, as discussed above, it is also arguable that the removal of the copy claim form from the package may not have been permitted by the Hague Convention.
72. Finally, as was emphasised in [88] in the Murphy case, reflecting what was said by Simon Brown LJ in the Wilkey case, it may well be right to permit a claimant to invoke CPR6.9 in circumstances which have not arisen under the CPR before, with a warning that, if those sort of circumstances arise again, the court is unlikely to be so indulgent to the claimant.
73. The reason that the claimants in the various domestic cases which I have been discussing wished to rely on CPR6.9 was that, otherwise, they would have had to start fresh proceedings, which would have been liable to be defeated by a Limitation Act 1980 defence. In other words, the purpose of dispensing with service of the claim form was to enable the proceedings to be retrospectively validated to defeat a time bar which came down between the date on which service should have occurred (if CPR7.5 had been complied with) and the date on which CPR6.9 was invoked. The purpose of the claimants in invoking CPR6.9 here is very similar, namely to validate service retrospectively, so as to defeat the priority claimed for the Swiss proceedings, issued between the date on which service should have occurred (if the claim form had not been wrongly stamped and removed from the package) and the date on which CPR6.9 was invoked.
74. Accordingly, it seems to me that, subject to what I say in the next paragraph, and unless there is some special point arising out of the fact that this case involves the Conventions, there can be no criticism of the Judge's decision to dispense with service of the claim form, on these very unusual facts.
75. Before turning to Mr Martin's second point, it is right to mention that the claimants may not need to have recourse to CPR6.9, as this may be a case where (subject again to the international dimension) the claimants could invoke CPR7.6(3). However, the applicability of CPR7.6 in the present case has not been addressed in argument before us. I shall therefore say no more about it, particularly as it does not appear to me to affect the outcome of this appeal whether the claimants seek to rely on CPR6.9 or CPR7.6(3).

Can or should CPR6.9 be invoked to affect priorities under Article 21?

76. Mr Martin contends that, even if it would otherwise be appropriate, by reference to principles applicable to domestic service, to permit the claimants to invoke CPR 6.9, it would be ineffective (or inappropriate) to do so, given that the purpose is to give these proceedings priority over Swiss proceedings which already have (or would otherwise have) priority under an international Treaty with a clear priority rule, namely Article 21.
77. The claimants' general answer to that point is that, since the question of whether and when the court of a particular state is seised of proceedings against a foreign defendant for the purpose of Article 21 is to be determined by reference to the law of that state, it follows that the English rules relating to service can be applied according to purely domestic principles. Accordingly, says Mr Steinfeld, CPR6.9 can be invoked with the result that the defendant in this case has been properly served with the proceedings. Even if that general argument is too widely expressed, he says that the claimants' reliance on CPR6.9 can be justified in the light of CPR3.10, especially owing to the service of the particulars of claim on the defendant. This argument was attractively developed, but I am satisfied that it is wrong.
78. The position as at 4 February 2005, when the Swiss proceedings were issued, was this. As the defendant had not been served with the copy claim form, the High Court was not seised of these proceedings as against her, and accordingly, as the Swiss rule is that seisin occurs on issue, the Swiss proceedings had priority under Article 21. In these circumstances, it appears to me that there is obvious force in the proposition that it is not possible (or, if it is possible, it would not be right) for this court, subsequent to 4 February 2005, to invoke its discretionary jurisdiction under a domestic rule of procedure, such as CPR6.9, to enable these proceedings to snatch back priority for the purposes of Article 21 from the Swiss proceedings. The court would thereby be trying to enable the English proceedings to jump the Article 21 queue, or, to adopt Bingham LJ's metaphor, it would be seeking to achieve a retrospective replay of the tie-break with a different outcome.
79. In my judgment, there are a number of cases in this court, and indeed at first instance, which support the proposition that it would be ineffective (or else impermissible) to invoke CPR6.9 for this purpose. Further, the thrust of the reasoning of the ECJ in a number of other cases points pretty firmly in the same direction.
80. In Molins Plc –v- G.D. SpA [2000] 1 WLR 1741 Aldous LJ (with whom Potter and Nourse LJJ agreed) said at [38]:

"I have no doubt that service is a requirement of Italian law before proceedings become definitively pending before an Italian court. I accept that irregular service can under Italian law be validated either by appearance or an order of the judge and that such validation would be retrospective; but until such validation has been achieved the Italian court cannot be seised, as during the interim period the proceedings could not be definitively pending before the Italian court."

81. Having approved a similar view expressed by His Honour Judge Diamond QC in an earlier case, Aldous LJ continued:

"39 In my view, seisin cannot depend upon what will happen in the future. This court is concerned to decide whether proceedings in Italy were definitively pending prior to 30 July 1999, the date when the English court was seised of the cause of action. As of that date no validation had taken place.

40 Once it is established, as it is, that service is required for proceedings to be definitively pending under Italian law, then the decision as to whether service took place depends upon whether service was effected as required by article IV of the Protocol to the Brussels Convention…"

82. In Tavoulareas –v- Tsavliris [2004] 1 Lloyds Rep 445, Mance LJ (with whom Thorpe LJ and Evans-Lombe J agreed), after holding that Greek proceedings required service for the purposes of seisin, said this:

"20. Professor Antapassis says that, as a matter of Greek domestic law, the effect of art. 221 is that proceedings may be considered pending retrospectively from the date of filing of the writ, once service has been effected.…

21. However, it is impossible to accept that the Greek proceedings were, for the purposes of art. 21 of the Brussels Convention, definitively pending from Nov. 8, 2001 (when they were filed). Article 21 requires a simple chronological approach, which is inconsistent with retrospectivity. That is obvious in principle, and was stated in Dresser, where Lord Justice Bingham said:

"Some tie-break rule was necessary, and that adopted by the Convention was a simple test of chronological priority."

83. In the earlier case of Grupo Torras –v- Al-Sabah [1996] 1 Lloyd's Rep 7 at 24, Stuart-Smith LJ (giving the judgment of the court) stated that:

"The test laid down in Zelger is a chronological test. It requires a moment in time to be identified. When were the requirements first fulfilled? A doctrine of relation back cannot alter the answer to be given to this question. Under Spanish law, the requirement for pendency was not fulfilled until the proceedings were served on Grupo Torras in October, 1993. Again, the argument of the defendants confuses the fulfilment of the requirement with the consequences of that fulfilment in the domestic procedural law" (emphasis supplied).

84. It is also worth referring in this context to the decision of this court in the Knauf case. There, the first instance decision permitted service under CPR6.8 on a foreign defendant's English solicitors to enable the claimant to say that the defendant had thereby been served, and the English court was thereby seised under the Brussels Convention, before the German court was seised of proceedings which the defendant was proposing to bring in Germany. While this court appears to have accepted that the decision did not infringe the Hague Convention, it allowed the defendant's appeal.
85. At [47], the court said that the use of CPR6.8 "as a means for turning the flank of the [Hague and Brussels] Conventions, when…they do not permit service by a direct and speedy method such as post, is to subvert the Conventions which govern the service rule as between claimants in England and defendants in Germany". It is right to add that, in [54] in the Knauf case, the Court went on to acknowledge that there might conceivably be "very special circumstances" where rules such as CPR6.8 might be invoked.
86. The law on this topic was also considered by Colman J in Shiblaq –v- Sadikoglou (No. 2) [2004] EWHC 1890. At [56], he referred to "the strong disapproval of the deployment of [CPR6.8] to subvert the requirements of the Hague Convention…so as to affect the rules of the Brussels Convention as to jurisdictional precedence" and suggested that the principle applied equally to CPR6.9. At [57], he said that CPR6.9 should not be used either prospectively or retrospectively "for the purpose of…avoiding a defect in service which is inconsistent with a service convention binding as between this country and the country of service". In the same paragraph, he said this:

"Where it is sought to apply CPR6.9 retrospectively, if the effect of dispensing with service is to place the defendant in the same position as he would have been in if service had not been by an impermissible method but by a method provided for by such service convention, no order should be made."

87. These statements from the Grupo Torras, Molins, Tavoulareas, Knauf and Shiblaq cases provide very strong support for the conclusion that the invocation of CPR6.9 in a case such as this would be ineffective, or, if, contrary to my view, it would be effective, that it would be inappropriate. CPR6.9 cannot (or should not) be invoked to enable proceedings in this jurisdiction to enjoy Article 21 priority, which has already been achieved by proceedings of which a Lugano Convention state court is already seised (or, respectively, which they might not otherwise have as against such proceedings of which the relevant Lugano Convention state court may become seised).
88. The importance of mutual respect between courts of different jurisdictions and of legal certainty, consistency and simplicity, in the context of the Conventions was mentioned in the Zelger case by the ECJ, and has been emphasised in a number of its subsequent decisions. In Erich Gasser GmbH –v- Missat SARL [2004] 1 Lloyds Rep 222 at [67], the importance of certainty was emphasised. That case is also authority, at [72], for the proposition that such Conventions are based on the mutual trust and confidence which each contracting state accords to the legal systems and judicial institutions of the other contracting states. That was again emphasised by the ECJ in [24] and 25 of Turner –v- Grovit [2005] 1 AC 101, where it was said that "the rules on jurisdiction that [the Brussels Convention] lays down… are common to all courts of the Contracting States [and must] be interpreted and applied with the same authority by each of them."
89. In Oswusu –v Jackson [2005] 2 WLR 942, at [40], the ECJ stated that Article 2 of the Brussels Convention "should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts…he may be sued." In [41] the Court mentioned the requirement of "predictability of the rules of jurisdiction" in the Convention, and to "the principle of legal certainty, which is the basis of the Convention."
90. These observations of this court appear to be focussed pretty closely on the point at issue here, while those of the ECJ are of more general application. Particularly when taken together, they appear to me to present insuperable obstacles to the claimants' invocation of CPR6.9 to enable these proceedings to achieve priority under Article 21 over the Swiss proceedings, when these proceedings would not otherwise enjoy such priority, indeed when the Swiss proceedings have already gained such priority.
91. I return to the point that this court left open in the Knauf case (albeit with no great confidence), namely the possibility of an exceptional case where CPR6.8 might be invoked in a case involving priority of the sort involved in this case. I do not consider that could help the claimants here. In that case, there were no German proceedings in existence at the time, so the claimant was seeking to invoke CPR6.8 to enable English proceedings to win a race against the German proceedings before the race had even begun. That was at least conceptually possible. Here, the claimants are seeking to invoke CPR6.9 to enable these proceedings to win a race that has already been won by the Swiss proceedings.
92. Even if the exercise of the court's power under CPR6.9 could achieve the result desired by the claimants, it would be a power which, according to the Knauf case, could be exercised only in exceptional circumstances. In my view, the facts of the present case would not justify invoking CPR6.9. First, it was not in any way the fault of the defendants that the copy claim form was not served before 4 February 2005; they did not, for instance, evade service of these proceedings. Secondly, the claimants (through their solicitors) must take at least some of the blame for the failure to serve the copy claim form.
93. Thirdly, it cannot be inappropriate for the defendants to start their own proceedings in the court of a country which has jurisdiction under the Lugano Convention, especially in their country of residence. Further, there is nothing wrong in the defendants seeking a negative declaration in this context, even where the claimants might characterise that course as forum-shopping; see in this connection the discussion in Dicey and Morris on The Conflict of Laws (13^th edition) at paragraph 12-036. Fourthly, if the Zurzach Court could be criticised for its failure to serve the copy claim form or to report promptly on its non-service, that would not be a sufficient reason to justify exercising this court's CPR6.9 jurisdiction, as Mr Steinfeld realistically accepts.
94. Mr Steinfeld contends that CPR3.10 provides an answer to the point that the invocation of CPR6.9 would be ineffective or inappropriate to enable these proceedings to achieve Article 21 priority over the Swiss proceedings. He says that, as a result of the court exercising its power under CPR6.9, the effect of CPR3.10 would be to validate the service of the translation of the claim form as service of the copy claim form and/or to render effective the service of the particulars of claim. As both of those events occurred on 19 January 2005, before the issue of the Swiss proceedings on 4 February 2005, he argues that the High Court was seised of these proceedings before the Zurich Obergericht.
95. I do not consider that CPR3.10 can possibly help the claimants' case in relation to the service of the copy claim form. All that an order under CPR6.9 does in relation to a document (in this case, the copy claim form) is to dispense with a requirement elsewhere in the CPR that the document be served. CPR3.10 does not have the effect of treating the document as fictionally having been served. Thus, in the Shiblaq case at [40], Colman J emphasised that CPR 6.9 "certainly cannot be used retrospectively to create a deemed breach of the duty to acknowledge service and thereby to justify signing judgment in default".
96. In other words, the effect of an order under CPR6.9 to dispense with the service of the copy claim form does not mean that, as a result of CPR3.10, the service of some other document is to be treated as service of the claim form. At least in a case where the Court dispenses retrospectively with service of the claim form under CPR6.9, the "error of procedure" in CPR3.10 is the failure to serve the claim form. There is no basis for contending that the service of another document is to be treated as service of the claim form on the basis that it is a "step in the proceedings". Such a contention would involve a claimant pulling himself up by his own bootstraps. It would also lie uneasily with the fact that the Court has dispensed with service of the claim form.
97. If this is wrong, the claimants' reliance on CPR3.10 as validating the service of the claim form runs into the same problem as their reliance on the rule for validating the service of the particulars of claim, the point to which I now turn.
98. I am prepared to accept the argument that, if the court grants the claimants relief under CPR6.9 in relation to the service of the copy claim form, then the effect of CPR3.10 would be to validate the service of the particulars of claim on the defendant on 19 January 2005, even though such service would be premature under CPR7.4(1). However, that does not help the claimants for two reasons, in my judgment. First, it does not seem to me that the claimants' argument based on CPR3.10 addresses the reason that their reliance on CPR6.9 is inappropriate, namely because it is being invoked with a view to enable these proceedings retrospectively to gain priority under Article 21 over the Swiss proceedings in circumstances where the latter proceedings had already achieved such priority. Secondly, as discussed above, the rule is that it is only on service of the copy claim form that the English court becomes seised under Article 21. If relief under CPR6.9 can be granted in a case of non-service of the claim form, it seems to me that seisin could not occur earlier than when the application for such relief is made, and probably not before it is granted. Otherwise, the important clarity and certainty of the rule established in the Dresser and Sargasso cases would be weakened.
99. As to my first reason, it is true that I am accepting that, if CPR6.9 is invoked to dispense with service of the copy claim form, the effect of CPR3.10 is that the premature service of the particulars of claim would not be invalidated unless the court otherwise orders. Accordingly, no order to validate such service would be needed. But that does not alter the fact that the defendant will not have been properly served with the particulars of claim until the order under CPR6.9 is made.
100. In any event, I am quite unpersuaded that the issue of when this court is first seised for Article 21 purposes should depend on whether a domestic rule of court, such as CPR3.10, provides that, after making an order under CPR6.9 in a case such as this, the premature service of the particulars of claim was ineffective in the absence of an order to the contrary, or effective in the absence of an order to the contrary. It seems inappropriate, in the context of an international Convention, where simplicity and clarity are so important, for the question of seisin to turn on such niceties of domestic procedural rules.
101. In any event, in the Sargasso case at 189j to 190a, Peter Gibson LJ, with whom Sir Tasker Watkins agreed, suggested that the English court should not be treated as seised of a case before a defendant could reasonably be expected to apply to challenge the service of the proceedings on him. Where the defendant is not served with a claim form, then, until an order under CPR6.9 is made (and, probably, until the defendant knows of it or can fairly be taken to know of it), he could not be expected to challenge this court's jurisdiction.
102. As to my second reason, it appears to me to be wrong, save perhaps in an exceptional case, to depart from the clear and simple rule that service of the claim form, as opposed to service of any other document, on the defendant is the basis of seisin for the English court. Service of the claim form on a defendant is a fundamental step in any proceedings. Indeed, it is pertinent to note that, in [173] of his judgment, having decided he should dispense with service of the claim form under CPR6.9, the Judge immediately went on to say that that "was not of course the end of the matter because an original claim form will have to be served on [the defendant] in due course in order to progress the action". It may be possible for an English court to conclude that the service of a document other than the claim form would suffice to give it seisin for Article 21 purposes, but, in the light of what was said in the Sargasso case, I find it hard to envisage, as did this court in the Knauf case, circumstances which would justify such a result.
103. Assuming, in the claimants' favour, that that would be a possible course in an exceptional case, and that it could be done in a case such as the present where foreign proceedings have already achieved priority, I do not consider that it is a course which should be followed here. My reasons are the same as those given in [92] and [93] above (not surprisingly, as the point is very similar).
104. I have not so far referred to the decision of this court in Golden Ocean Assurance Ltd –v- Martin ("The Goldean Mariner") [1990] 2 Lloyds Rep 210, on which Mr Steinfeld strongly relies. I do not consider that it assists. My primary reason is that there was no question in that case of the retrospective validation of an ineffective attempt to serve the writ operating to affect, let alone to alter, the priority between English and foreign proceedings under an international Convention. It is therefore simply not in point, in my judgment. Quite apart from this, I am uneasy about relying on a case which was decided under RSC Order 2 rule 1, although it is said by Mr Steinfeld to have been equivalent to CPR3.10. RSC Order 2 rule 1 is more widely worded (as Colman J pointed out in [35] in the Shiblaq case) and much more lengthy than CPR3.10. Further, it applied at a time when there was no equivalent of CPR6.9. Quite apart from this, it is not altogether easy to discern the precise extent of the ratio of the Goldean Mariner case. Lloyd LJ dissented, in that he agreed with Phillips J at first instance (although I think for slightly different reasons); McCowan LJ thought that RSC Order 2 rule 1 was very wide in its effect (see the last full paragraph on 233), whereas Megaw LJ seems, at least arguably (and in my view probably), to have given the rule a more restricted ambit (see the last paragraph of the first column on 225).
105. Accordingly, although I accept that the court would grant the claimants relief under CPR6.9 if this were a domestic case, it cannot, in my judgment, be right to do so in a case where the sole purpose of the relief is intended to enable the inadequately served English proceedings to achieve Article 21 priority over Swiss proceedings which had already obtained such priority. If relief was granted under CPR6.9, it would not achieve the intended purpose of giving these proceedings priority under Article 21. In the alternative, even if granting relief under CPR6.9 would be effective for that purpose, it would be wrong to grant such relief.
106. I would expect this conclusion to be shared by the Swiss Courts, not only because of the reasons given above, but also in the light of the Swiss law expert evidence given to Peter Smith J. If that is right, then, if the instant proceedings were permitted to continue, there could be a race to judgment between the claimants in this country and the defendants in Switzerland. Further, if the claimants were to succeed here and the defendants were to succeed in Switzerland, neither judgment would be enforceable in the other country by virtue of Article 27(3) of the Lugano Convention. Conflicts between national courts, involving such races to judgment, inconsistent decisions, and unenforceable orders, are the very stuff of what such international Conventions are designed to avoid. Such conflicts are best avoided by national Courts faithfully and consistently following the provisions of the Conventions, and applying domestic procedural rules, not only simply and predictably, but also consistently with the Conventions.

Would invoking CPR6.9 be contrary to the Hague Convention?

107. In the light of my conclusion on the interrelationship of Article 21 and CPR6.9, this issue is academic. However, it has been argued and can be disposed of relatively shortly. Mr Martin argues that allowing the claimants to invoke CPR6.9 in a Hague Convention case is impermissible, even ignoring the fact that the invocation is to enable these proceedings to achieve priority over the Swiss proceedings. The Hague Convention prescribes how service of English proceedings is to be effected in Switzerland, and, he says, it cannot therefore be right for an English Court to permit service in a different way, or to permit non-service under CPR6.9.
108. The provisions of the Hague Convention are concerned, at any rate primarily, with how documents are to be served, and not with what documents are to be served. That is scarcely surprising: one would expect the latter question to be determined by the domestic rules as applied by the relevant national court. In my opinion, therefore, there is considerable force in the contention that the question of whether a person who has been served, in accordance with the Convention, with court documents, needs to be served with another document in order to be properly served in accordance with the domestic procedural rules of a national court should be a matter for that court to determine by reference to those rules. On the other hand, care must obviously be taken to ensure that the Hague Convention is not outflanked or subverted by the invocation of domestic rules of court – see the Knauf and Shiblaq cases.
109. In my judgment, if the claimants' application for relief under CPR6.9 in this case had been merely for the purpose of some purely domestic benefit, such as defeating a statutory time-bar, and not for the purpose of gaining priority for these proceedings under Article 21, then it would probably not have been wrong in principle to grant them relief under CPR6.9. The defendant has been served, in accordance with the Hague Convention, with the documents listed in [14] above, so there would be no question of invoking CPR6.9 to avoid serving the defendant with these proceedings at all in accordance with that Convention. That is an important ground (over and above the point that I am here assuming the absence of any Article 21 or similar point) for distinguishing the disapproval by this court of the invocation of CPR6.8 in the Knauf case, and Colman J's observations about the use of CPR6.8 and CPR6.9 in the Shiblaq case.
110. In Re Bas Capital Funding Corporation [2004] 1 Lloyds Rep 652 at 682, Lawrence Collins J said, in a case which involved service in a country which was not party to a service Convention, that "Proper service is particularly important in international cases, where the basis of jurisdiction is service. I would therefore hesitate before ordering service by an alternative method, or dispensing with service". I agree with that observation, which deserves particular respect coming from the general editor of Dicey and Morris (cited above). However, like the Knauf and Shiblaq cases, the Bas Capital case was not one where service of any documents, let alone the formal court documents served in this case, had been properly effected. Nor was it a case which involved the Brussels Convention, the Lugano Convention, or the 2001 Regulation.
111. Accordingly, in the absence of any Lugano Convention factor, it seems to me that, if a proper reason could be established for dispensing with service of the claim form in this case (e.g. to overcome a purely domestic limitation defence), there would be a powerful case (which I would have been inclined to accept) for saying that the Hague Convention should not stand in the claimants' way. My reasons for expressing that view are those given in [70] to [72] above. On the very unusual facts of this case, to grant relief to the claimants under CPR6.9 for such a reason would not have involved "turning the flank of" or "subverting" the provisions of the Hague Convention.
112. Having said that, I do not consider that it would have been right for the court to have dispensed with service of the copy claim form in this present case, in the absence of the Article 21 factor. That is because, in the absence of that factor, there would have been no reason to dispense with service. That proposition is supported by the facts that (a) the Article 21 consequences of the issue of the Swiss proceedings provided the only basis advanced by the Judge or the claimants for dispensing with service of the copy claim form, and (b) as mentioned above, the Judge said in [173] of his judgment (as was reflected in the order appealed against) that, notwithstanding his order dispensing with its service, the copy claim form would have to be served on the defendant "to progress the action".

Conclusion

113. In these circumstances, it follows that the defendants' appeal must be allowed. The only reason for the Judge's order dispensing with service of the copy claim form on the defendant under CPR6.9 was to enable these proceedings to gain priority under Article 21 of the Lugano Convention over the Swiss proceedings. The order was ineffective for that purpose. Even if it had been effective, it would have been inappropriate to make the order for that reason. Once that reason for making the order under CPR6.9 is discarded, there is no other reason for making the order. I believe that it follows that these proceedings must be stayed as against the defendants pursuant to the terms of Article 21.

Lord Justice Wilson

114. With regret I find myself persuaded by the judgments of Neuberger L.J. and, in that I have read it in draft, of Pill L.J. to concur in the allowing of this appeal for the reasons which they give. Like Pill L.J., however, I would prefer not to volunteer any response to the particularly open-ended hypothetical question addressed by Neuberger L.J. in [107] to [112].

Lord Justice Pill

115. I agree with the conclusion of Neuberger LJ and each stage of his reasoning save that, because, as Neuberger LJ says, the issue is in the event academic, I do not express a view on whether invoking CPR 6.9 would in different circumstances have been contrary to the Hague Convention. Unless the defendant was served before 4 February 2005, the Swiss proceedings have priority under Article 21 of the Hague Convention. If she was served before that date, the English court became seised under Article 21 (Dresser UK Ltd v Falcongate Freight Management Ltd [1992] 1QB 502).
116. Because the point taken by the defendant is essentially a technical one, in that the absence of the copy claim form from the bundle of documents served on her caused her no prejudice, a route by which service at the Zurzach Court on 19 January 2005 may be established should be sought. The defendant received, as well as the particulars of the claim in English and in German, a German translation of the claim form. She would have been no better informed if the other documents had been accompanied by the copy claim form.
117. Whether the defendant was for present purposes served on 19 January depends on the provisions of the CPR as to service. For the reasons given by Neuberger LJ, it is only on service of the copy claim form that a defendant is served.
118. Proceedings are started when the court issues a claim form (CPR 7.2) at the request of the claimant. After a claim form has been issued, it must be served on the defendant (CPR 7.5(1)). Particulars of claim may be "contained in or served with the claim form" but do not serve as a substitute for it (CPR 7.4). CPR 6.17 to 6.31 specify special provisions about service out of the jurisdiction. Where service is, as in the present case, to be through a foreign judicial authority, a copy of the claim form must be filed in England (CPR 6.26(2)(b)). It will then be sealed and along with the other documents to be filed, be forwarded to the Senior Master (CPR 6.26(3)) who will send them to the appropriate authority (CPR 6.26(4)).
119. It is the copy of the claim form which must be accompanied by a "translation of the claim form" (CPR 6.28(1)). Where the defendant does not appear at a hearing fixed when the claim is issued, and the claim form is served on a defendant out of the jurisdiction, "the claimant may take no further steps against that defendant until the claimant files written evidence showing that the claim form has been duly served" (CPR 6.31). The procedures plainly contemplate service of a claim form.
120. I cannot see a way in which the defendant can be held to have been served on 19 January when the copy claim form was not served on her. The translation of the claim form which is required to accompany it cannot under the Rules be treated as a substitute for the claim form.
121. That being so, it has been necessary for the claimants to resort to arguments based on CPR 3.10 and CPR 6.9. For the reasons given by Neuberger LJ, those rules do not avail them in present circumstances. The judge, in [173] of his judgment, appears to have acknowledged the obstacle facing the claimants, if CPR 6.9 cannot be relied on, by stating that "an original claim form will have to be served on [the defendant] in due course in order to progress the action".
122. I agree that the appeal should be allowed.