Phillips & Ors v Symes & Ors

Phillips & Ors v Symes & Ors

The court held that, due to unique and exceptional circumstances including procedural errors by the English and Swiss courts and absence of prejudice to the Defendants, it would exercise its discretion under CPR 6.9 and 3.10 to dispense with service of the original Claim Form for purposes of establishing jurisdiction and definitive seisin under the Lugano Convention. The English court was first seised as of 19 January 2005, despite the omission of the original Claim Form, and Claimants were entitled to relief. However, proper service of the Claim Form would still be required for the action to proceed.

Parties
Claimant: Jonathan Guy Anthony Phillips; Claimant: Robert Andrew Harland; Defendant: Robin James Symes; Defendant: Frieda Nussberger; Defendant: Galerie Nefer AG; Defendant: Geoff Rowley; Defendant: Kevin Hellard; Defendant: Bracher Rawlins
Jurisdiction
England and Wales
Judgment Date
19 August 2005
Procedural Posture
Civil / Interlocutory Application Ruling
Outcome
Application granted in part; court dispensed with service of Claim Form for purposes of jurisdiction and definitive seisin.
Legal Topics
Service of Process, Jurisdiction, Lugano Convention, Hague Convention, Dispensing With Service, Freezing Orders
Civil Procedure International Civil Litigation Service of Process Jurisdiction Lugano Convention Hague Convention Dispensing With Service Freezing Orders

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Parties

Jonathan Guy Anthony Phillips

Claimant

Robert Andrew Harland

Claimant

Robin James Symes

Defendant

Frieda Nussberger

Defendant

Galerie Nefer AG

Defendant

Geoff Rowley

Defendant

Kevin Hellard

Defendant

Bracher Rawlins

Defendant

Procedural Posture

Civil / Interlocutory Application Ruling

Legal Issues

  1. 1 Whether service of the Claim Form on Frieda Nussberger and Galerie Nefer AG was valid for purposes of establishing English court jurisdiction under the Lugano Convention
  2. 2 Whether the English court should dispense with service or validate defective service under CPR 6.9 and CPR 3.10
  3. 3 Whether the English court was 'definitively seised' before Swiss proceedings were commenced

Ratio Decidendi

The court held that, due to unique and exceptional circumstances including procedural errors by the English and Swiss courts and absence of prejudice to the Defendants, it would exercise its discretion under CPR 6.9 and 3.10 to dispense with service of the original Claim Form for purposes of establishing jurisdiction and definitive seisin under the Lugano Convention. The English court was first seised as of 19 January 2005, despite the omission of the original Claim Form, and Claimants were entitled to relief. However, proper service of the Claim Form would still be required for the action to proceed.

Court Disposition

Application granted in part; court dispensed with service of Claim Form for purposes of jurisdiction and definitive seisin.

Orders

  • Court declares service on Frieda Nussberger and Galerie Nefer AG sufficient for purposes of establishing jurisdiction and priority under Lugano Convention as of 19 January 2005.
  • Court dispenses with service of original Claim Form under CPR 6.9 and 3.10 for purposes of definitive seisin.