England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE TUGENDHAT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		3rd February 2010

Lady Justice Arden:

1. This is a renewed application for permission to appeal. The issue in this case turned on the true interpretation of Article 30.1 of the Judgments Regulation. Article 30.1 provides:

"For the purposes of this Section, a court shall be deemed to be seised:

1. at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant"

The Judgments Regulation is at divider 1 of the authorities of the appellant.

2. The appellant contends that there is a properly arguable issue on appeal as to whether a delay in taking steps to have proceedings served, in this case failing the court fee, can amount to a failure for the purposes of Article 30.1. In the present case, proceedings were issued in the Czech Republic in April 2009. The court fee necessary for service was not paid and it is arguably a finding of the judge that it had to be paid for service in this case. In July the English proceedings were issued and in August the Czech proceedings were served. I should say there was a request by the Czech court for the fee to be paid in about June.
3. I have indicated how the appellant puts the issue. I think that the issue could be analysed slightly differently, in the following terms, as to whether there is under Article 30.1 an obligation to serve the proceedings, and by implication it would appear that the Article can be so construed. The questions that would then arise would be whether the service had to take place forthwith or within a reasonable time or at any time before the second proceedings were issued or at any time before the first set of proceedings were dismissed by the court in which they had been taken out for want of service. There may be a fifth possibility, that the service could take place at any time within a reasonable time after the court asks for payment of the fee. There may be other possibilities as well.
4. I mention these possibilities because as the judge determined the case on the basis that it was the third option, namely that the proceedings had to be served before the English proceedings were issued, it appears to me that since the other options were not considered there is an arguable point on this case as to whether the judge came to the true interpretation of the provision. Obviously everything that needs to be argued on appeal can be argued. I merely give the analysis that I have very tentatively given for the purposes of demonstrating that it is an arguable point, without expressing any view whatever on the question of the true interpretation of this case or whether the arguments the appellant seeks to put forward will succeed.
5. For these reasons I would give permission. As this case is a short point on whether this court has jurisdiction, and as there has been a judgment already given in this case by way of summary judgment, I would direct that the case should be listed if possible to be heard as soon as practicable and I would estimate half a day.
6. I would like to record that we have received from the respondent a note, which I have read. The only point that I need to mention is the last point, in which the point is made that the basis of the claim in the Czech Republic was not raised as a defence in the current proceedings. As I see it, that does not detract from the arguability of the issue of the true interpretation of the Judgments Regulation which I have already indicated.
7. Accordingly, for those reasons I would give permission.

Lord Justice Dyson:

8. I agree. In my judgment Mr Keith has raised a short point as to the true construction of Article 30.1 which should be considered by this court.

Order: Application granted.