In a case where the national court which would deal with a matter was the court first seised of the matter, a stay could only be awarded where the proceedings until the proceedings were definitively pending in that court. Documents could be served by fax only if the party being served had explicitly consented to service by fax. Publication of a fax number on stationery was not sufficient to amount to consent. This rule contrasts directly with that applied to service by post.
Aldous LJ: ‘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.’ and ‘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.
nce 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.’
Judges:
Aldous, Potter and Nourse LJJ
Citations:
Times 29-Mar-2000, [2000] 1 WLR 1741
Statutes:
Jurisdiction:
England and Wales
Citing:
Appeal from – Molins Plc v G D Spa ChD 24-Feb-2000
In a dispute between an Italian company and British one, each sought to have the case heard in its own country. The British company asserted that the case begun in Italy had been begun after at best misrepresentation by the other company, and sought . .
Cited by:
Cited – Nussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
Cited – Brown and Others v InnovatorOne Plc and Others ComC 19-Jun-2009
The claimants served proceedings by fax. The defendants denied that it was effective saying that they had not confirmed that they were instructed to accept service or that as required by the rules they had confirmed that they would accept service by . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, International
Updated: 11 May 2022; Ref: scu.83799
