Nussberger & Anor v Phillips & Anor

Nussberger & Anor v Phillips & Anor

The English court is not seised of proceedings for Article 21 Lugano Convention purposes until the claim form is actually served on the defendant. Failure to serve the copy claim form before the Swiss proceedings were issued meant the Swiss court was first seised. CPR 6.9 and CPR 3.10 cannot be used to retrospectively validate service to alter international priority under Article 21. The proceedings against the defendants must be stayed.

Parties
Appellant: Frieda Nussberger; Appellant: Galerie Nefer AG; Respondent: Jonathan Guy Anthony Phillips; Respondent: Robert Andrew Harland
Jurisdiction
England and Wales
Judgment Date
19 May 2006
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Outcome
appeal allowed; proceedings stayed as against the defendants
Legal Topics
Jurisdiction, Service of Process, Lugano Convention, Hague Convention, Priority of Proceedings, Stay of Proceedings
Civil Procedure Private International Law Jurisdiction Service of Process Lugano Convention Hague Convention Priority of Proceedings Stay of Proceedings

Case Brief

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Parties

Frieda Nussberger

Appellant

Galerie Nefer AG

Appellant

Jonathan Guy Anthony Phillips

Respondent

Robert Andrew Harland

Respondent

Procedural Posture

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 When is the English court seised of proceedings for the purposes of Article 21 of the Lugano Convention?
  2. 2 Can CPR 6.9 and/or CPR 3.10 be invoked to retrospectively validate service and affect priority under Article 21?
  3. 3 Does the failure to serve the copy claim form invalidate seisin for Article 21 purposes?

Ratio Decidendi

The English court is not seised of proceedings for Article 21 Lugano Convention purposes until the claim form is actually served on the defendant. Failure to serve the copy claim form before the Swiss proceedings were issued meant the Swiss court was first seised. CPR 6.9 and CPR 3.10 cannot be used to retrospectively validate service to alter international priority under Article 21. The proceedings against the defendants must be stayed.

Court Disposition

appeal allowed; proceedings stayed as against the defendants

Orders

  • The appeal is allowed.
  • The order dispensing with service of the copy claim form is set aside.