England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice

		2004 Folio No. 675 Strand, London, WC2A 2LL
		09/03/2006

Mr Justice Tomlinson :


 


1. There is before the court an application in two related actions. The application is that in each action this court should give formal recognition to a judgment rendered by a court of another European Community State, here Greece, pursuant to Article 33 of Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, to which I shall refer hereafter as the "Judgments Regulation." The judgment of the Greek court grants negative declaratory relief. It is said that recognition of the Greek judgment in these actions would give rise to a defence of res judicata or issue estoppel which is why it is raised by the Defendants in the actions as the principal issue in the disputes between the parties. I have not been invited to decide whether recognition of the judgment would have the effect for which the Defendants contend. In certain circumstances it might not be possible or appropriate to consider an application of this sort without addressing that question. However I proceed upon the basis, as did the parties, that it is arguable that recognition of the Greek judgment might entitle the Defendants to have the English actions against them dismissed. In view of the conclusion which I have reached as to the disposal of this application I believe that it is unnecessary to decide what would be the effect of the Greek judgment were it to be recognised in these English actions.
2. The background to the actions brought both here and in Greece is unusual. The actions have their roots in a casualty suffered in August 1991 by a tanker called "Atlas Pride" and in her subsequent salvage. The Claimant Mr Tavoulareas is effectively the beneficial owner of the Atlas Pride. The salvage was carried out by the well known Tsavliris interests. The Defendants are companies and persons associated with the Tsavliris interests. I do not know when precisely the salvage was completed but in July 1993 the Lloyd's Open Form Salvage Award was published, making an award in favour of Tsavliris of a substantial sum in excess of US$7 million.
3. The origins of the dispute were described by David Steel J in a judgment which he gave in the first of the actions on 8 December 2004, [2004] EWCA 3400 (QB). The first action is brought by Peter Tavoulareas as Claimant against Messrs George and Andrew Tsavliris and also against two corporate Defendants, A.G Tsavliris and Sons Maritime Company and Tsavliris Salvage International Limited. Neither of the corporate Defendants has been served with the proceedings but the two personal Defendants were served therewith at the end of 2001. Although the proceedings were issued in November 2001 it is a feature of the action that so far the court has not been invited to adjudicate upon the merits of the dispute. It should not be thought however that that is indicative of inactivity. David Steel J began his judgment in this way: -

"The background to this dispute is very unusual. The claimant is in the ship owning business, and through a one-ship company called Atlas Marine Maritime Limited, he is effectively the beneficial owner of a tanker called Atlas Pride. The defendants are companies and/or personnel associated with a well-known salvage group, which I will call for short "Tsavliris".

In August 1991, that is to say some 13 years ago, the Atlas Pride suffered a casualty off the coast of South Africa. I am told that her bow fell off. At the end of the month, a Lloyd's Open Form Salvage Agreement was concluded between Tsavliris (for the moment I will not distinguish between the various companies within the group) and the shipowners.

Shortly thereafter, what I shall euphemistically call "arrangements" were entered into between the Tsavliris' interests and the shipowners. The documentation relating to those arrangements are threefold. Firstly, a letter dated 3 September 1991 on Tsavliris' notepaper addressed to Mr Alexatos, who I understand to be one of the principals in the shipowning company, headed "Atlas Pride – Heavy Weather Damage", the document reads: "We confirm that upon receipt of the salvage award or amicable settlement proceeds, we shall pay to you or your nominees the amount of 38% of the amount so received in the same currency, after first deducting relevant legal fees and other expenses and the cost of subcontracting equipment or services, provided the cost will not exceed 25% of the gross amount". There is then a further provision allowing for the position where the expenses are greater. That is signed on behalf of Tsavliris by a Mr Constantinides, a Managing Director.

At face value this is a remarkable agreement because it seems to involve the salvors agreeing simply to share the salvage award, and a very substantial proportion of it, with the shipowners.

Associated with this document is another more obscure document. Again it refers to the Atlas Pride, it is on Tsavliris' notepaper, it is signed by Mr Constantinides, and it reads: "We confirm the amount of the freight for the Alsama Alabama…" (I understand a vessel into which some of the cargo was transhipped): "…as well as the funds for the repairs, for which there will be the same facility. It shall be paid back to you normally as soon as the money is collected from the award."

Again, this is an unusual agreement (if it reflects one) in which somehow the freight for the lightening vessel, which perhaps was going to be paid by the shipowners, would be reimbursed out of the salvage award, but also that repair costs would receive the same treatment, repairs presumably to the vessel. Notably, the original document has a notation on it, which I do not believe we have focused on during the course of argument, referring to "Algamin Bank Netherlands NV" and a bank account at that bank held by Tango Investment Holding Corporation, another company in the Tsavliris group.

The third document which emerged in or around this time, is dated 30 September 1991, again on Tsavliris' notepaper and again apparently signed by Mr Constantinides. It is addressed to the board of directors of McHugh Investments Limited, care of Atlas Maritime, and reads: "We, A G Tsavliris hereby acknowledge we owe you the sum of $748,000 with which you have facilitated us upon our request to meet expenses relating to salvage and transhipment of the Atlas Pride and we confirm we shall repay the money to you, as well as any additional money you may loan us for the same reason immediately and unconditionally out of the salvage award relating to the Atlas Pride.

It appears that in June 1993, some considerable time after the completion of the salvage services, an assignment was entered into by the claimant in favour of Banque Indosuez in Paris. Notice of that assignment purporting to be under an unidentified loan agreement but certainly relating to advances made in respect of costs incurred in regard to the salvage of the Atlas Pride was given to Tsavliris….

A month later the salvage award was published. It made an award in favour of Tsavliris of a very substantial sum in excess of US$7 million. Given the nature of the casualty, I would regard it as likely that the vast bulk of the award was against the cargo interests."

4. I will call the action begun on 7 November 2001 "the first action." In it Mr Tavoulareas claims US$794,232.24 as the balance outstanding under the loan agreement.
5. On 8 November 2001 Messrs George and Andrew Tsavliris, their brother Nicholas Tsavliris and four Tsavliris companies, Alexander G. Tsavliris and Sons Shipping Company, Tsavliris Russ (Worldwide) Salvage and Towage Limited, Tsavliris Salvage International Limited and Tango Investment Holding Corporation issued proceedings in the Piraeus Multi-member Court of First Instance against two corporate defendants and Mr Tavoulareas personally. I shall call that action "the Greek action." In the document initiating the Greek action the Tsavliris interests referred to the instruments of 3 and 30 September 1991 and referred to a loan from the Tavoulareas interests to the Tsavliris interests which, it was said, had been fully repaid with interest. The Tsavliris interests claimed a declaration that they had no debt or responsibility to the Tavoulareas interests arising out of the various arrangements in connection with the salvage of the Atlas Pride. That document also stated that Mr Tavoulareas was resident in London giving an address in Regent's Park. Mr Tavoulareas had not in fact lived at this address since 1992.
6. The Greek proceedings were served upon the Public Prosecutor on 19 November 2001, whose function it was so far as concerned Mr Tavoulareas to forward the process for service pursuant to the Hague Convention. An attempt to serve the relevant documents at the Regent's Park address was indeed made although unsurprisingly this was unsuccessful. However it was contended by the Tsavliris interests that this was irrelevant to the status of the Greek proceedings against Mr Tavoulareas of which the Greek court was, they said, seised on 19 November 2001 by virtue of service on the Public Prosecutor.
7. Mr Andrew Tsavliris was served with the first English action on 23 November 2001, and on 21 December 2001 he issued an application challenging the jurisdiction of the English court. Mr George Tsavliris was served with the first English action on 24 December 2001. He failed to acknowledge service and on 17 January 2002 a judgment in default of acknowledgment of service was entered against him. On 15 April 2002 he applied for that judgment to be set aside and also, like his brother, challenged the jurisdiction of the English court.
8. There was therefore a dispute under what was then Article 21 of the Brussels Convention as to which was the court first seised. Mr Tavoulareas denied that he had been served with the Greek proceedings.
9. The date fixed for resolution of that dispute by this court was 17 January 2003. By chance that was also the date which, in December 2001, the Greek court had fixed as the first hearing date in that action.
10. At a hearing in this court on 25 November 2002 Gross J directed that the parties take the necessary steps to have the hearing in Greece adjourned. The Tsavliris interests said that this could only be done by consent and not by them alone. The parties agreed to make a joint approach to the Greek court seeking such an adjournment. In order for the Greek court to entertain such an application it was necessary for Mr Tavoulareas to present a brief in the Greek proceedings. In his brief placed before the Greek court Mr Tavoulareas said that he had been resident in the United States for over ten years. I think that what is said under the heading, in translation, Plea of Incompetence is probably a protest as to the jurisdiction of the Greek court. He also said in his brief that for this dispute the English courts had already been chosen and he described this action and the steps taken pursuant thereto. He said that the Greek action was brought subsequently and had never been served on him. Of the claim brought against him he said "we deny [it] from word to word in legal terms and substance and consider it to be groundless, inadmissible, vague, unproven and not of court appreciation and which must be rejected by Your Court likewise all the proposals, objections and allegations." Counsel for Mr Tavoulareas made it clear before Gross J that Mr Tavoulareas would not for the purposes of this exercise submit to the jurisdiction of the Greek court but would be prepared to take the appropriate steps limited to obtaining an adjournment by consent.
11. A brief hearing took place before the Greek court on 17 January 2003 at which the court was informed of the applications of George and Andrew Tsavliris pending in this court. The Greek proceedings were adjourned to September 2004.
12. The applications in this court on 17 January 2003 came before me. In a judgment delivered on 21 March 2003 ([2003] EWHC 550 (COMM)) I concluded that the Greek court was the court first seised and stayed the English action.
13. On 5 February 2004 the Court of Appeal reversed my decision – see [2004] EWCA Civ 48, [2004] 1 Lloyd's Rep 445. The Court of Appeal held that this court was the court first seised and restored the proceedings, which included reinstatement of the judgment in default against George Tsavliris, without prejudice to his right to apply to set aside that judgment on grounds other than jurisdiction. The Court of Appeal held that the Greek Court was not definitively seised until either service was effected in accordance with Council Regulation (EC) No.1348/2000, to which I shall refer hereafter as "the Service Regulation" or, possibly, and at the very least, Mr Tavoulareas obtained notice of the Greek proceedings in such time as to enable him to defend them. The Court of Appeal held that there had never been any service of the Greek proceedings in accordance with the Service Regulation. Mr Tavoulareas did however come to know of the Greek proceedings on 31 December 2001 although not before. Since service of this English action had been effected on Mr Andrew Tsavliris and Mr George Tsavliris on, respectively, 23 November and 24 December 2001, the English court was the court first seised. See in particular the judgment of Mance LJ at paragraphs 31 to 38.
14. The Court of Appeal also considered the matter quite apart from the Service Regulation. It concluded that even in terms of Greek domestic law, should that be relevant, the proceedings had not been duly addressed to or served on Mr Tavoulareas. Whether the Greek court had become definitively seised of the proceedings was of course a different question but the Court of Appeal recorded its conclusion that the Greek proceedings had not been properly served on Mr Tavoulareas in accordance with the relevant Greek domestic law requirements – see the judgment of Mance LJ at paragraphs 39 and 40. Evans-Lombe J agreed with Mance LJ. Thorpe LJ considered the Service Regulation alone relevant to the question whether the Greek court had in the circumstances of this case become definitively seised.
15. It is convenient to explain here the circumstances in which Mr Tavoulareas became aware of the proceedings in Greece. On Friday 21 December 2001 Messrs Constant and Constant, then solicitors simply for Mr Andrew Tsavliris, wrote to Messrs Stephenson Harwood, the solicitors for Mr Tavoulareas, enclosing by way of service Notice of Application issued by Mr Andrew Tsavliris contesting the jurisdiction of the English court, together with the evidence in support thereof. Exhibit no. 1 to the Witness Statement of Mr Dickinson of Messrs Constant and Constant was an official translation of a document headed "Action" which I take to be the initiating process in the Greek proceedings. In view of the Christmas holiday that letter was not seen by Mr Keates of Messrs Stephenson Harwood until 28 December. Mr Keates prepared a fax message to his client Mr Tavoulareas under cover of which he intended to send the material received from Messrs Constant and Constant. Because of the holiday this message was not typed and sent, together with the enclosures, until 31 December 2001. Mr Tavoulareas, in Florida, saw the fax and enclosures on the day that they were sent. This was the first occasion upon which Mr Tavoulareas became aware of the Greek proceedings. With the exception of service upon the Greek public prosecutor with directions to effect service at the out of date address in London the Tsavliris interests have taken no steps to effect service of the Greek proceedings upon Mr Tavoulareas. With the exception of his participation in what was a joint application to adjourn those proceedings on 17 January 2003 which I have described above Mr Tavoulareas has taken no part in the Greek proceedings.
16. When handing down judgment the Court of Appeal refused to grant to the Tsavliris interests leave to appeal to the House of Lords. On that occasion Mr Tavoulareas asked the Court of Appeal to grant an injunction against the Tsavliris brothers restraining pursuit by them of the Greek proceedings. The Tsavliris brothers for their part by Counsel indicated that they had it in mind to petition the House of Lords for leave to appeal. The Court of Appeal declined to grant an anti-suit injunction, indicating that any application therefor should be made to the Commercial Court. In the event, no petition for leave to appeal was presented and, the day after the expiry of the time for so doing, the European Court of Justice delivered its judgment in Turner v. Grovit [2005] 1 AC 101 to the effect that anti-suit injunctive relief in respect of proceedings in other member states should not be granted by a court of a member state.
17. On 16 August 2004 Mr Tavoulareas issued fresh proceedings in this court against Alexander G Tsavliris and Sons Maritime Company. I shall refer to this action as "the second action" and to the Defendant therein as "AGT Co." I have not been shown the Claim Form or Statements of Case in that action. Andrew Smith J summarised the claim in this way at paragraph 10 of his judgment of 12 October 2005: -

"The claim is that Mr [George] Tsavliris made an agreement on behalf of himself, Mr Andrew Tsavliris and AGT Co that he and Mr Andrew Tsavliris would repay on demand the funds advanced in respect of the salvage together with interest after the collection of funds under any Lloyd's Open Form Salvage Agreement, and that US$3,454,490 is due to him thereunder."

This action was served on AGT Co on 18 August 2004 and an initial challenge to the validity of the service has not been pursued.

18. On 15 September 2004 Mr George Tsavliris issued an application notice seeking an order that the judgment in default entered against him on 17 January 2002 be set aside. The application was supported by a Witness Statement setting out the nature of his defence to the claim.
19. On 28 September 2004 the Greek court sat to try the Greek proceedings. Mr Tavoulareas had not instructed anyone to appear on his behalf and nor had the two corporate defendants. I am told on behalf of Mr Tavoulareas that the two corporate defendants had ceased to exist by the time the Greek proceedings were issued and so are or were incapable of being served. A Greek lawyer or at any rate a person who worked for a Greek law firm was present at the trial in order to observe proceedings on behalf of Mr Tavoulareas. I do not know whether that person announced his presence – I infer that probably he did not and that he was simply there as an unidentified member of the public. In his report upon his attendance he said this: -

"As expected, when the Court announced the disputed case heading and started announcing the names of the Claimants, Mr Albouras approached the bench and noted that he acted on behalf of each of the Claimants. In turn the Court President announced the names of the Defendants and noted orally and in writing their absence (either in person or through an attorney at law). The Claimants' attorney at law informed the Court that in view of the Defendants not filing an appearance before that Court, The Claimants would not invite any Claimants' witnesses in support of their claims and that their written pleadings, already submitted to the Court, constitute the Claimants' case. The Court noted the comments and oral declarations put forward by the Claimants' attorney at law and stated for the sake of order and for the completeness of record that the case "is being discussed."

When the Court revisited the case, the Court President stated that all three Defendants failed to file an appearance before the Court and declared that the case "was discussed."

As a result of the hearing a default judgment against all and each of the three Defendants is bound to be entered into in favour of all and each of the Claimants of the Greek proceedings. Depending on the workload of the Court, we anticipate that the latter is going to issue its judgment within 3-4 months of the hearing."

20. Andrew Smith J was evidently referred to more evidence about this hearing than I have been. In his judgment of 12 October 2005 he deals with the matter as follows: -

"The claim in the Greek proceedings was heard on 28 September 2004. The court was informed that the first action in this court had been "filed" (as it is put in the translation in evidence before me) on 7 November 2001, and that the second action had been filed "Just a short while ago". In a further pleading dated 28 September 2004 it was asserted that the "objection of "lis pendens" which is put forward by [Mr Tavoulareas] is unfounded and should be rejected, since the requirements provided for by the law are not met for establishing the existence of "lis pendens"". However, the Greek court was not informed of the decision of the Court of Appeal, nor that Mr Andrew Tsavliris had served a defence in the English proceedings and that Mr [George] Tsavliris had applied to set aside the default judgment with a view to defending them.

The Greek claimants were represented at the hearing by Mr G Albouras, who is a Greek Attorney at Law. Mr Tavoulareas did not appear and was not represented. It appears from an account of the hearing in evidence before me that Mr Albouras informed the Court that, since the defendants to the Greek proceedings had not filed appearances before the Court, the Claimants did not propose to call oral evidence and relied upon their written pleading. The President of the Court declared that the case "was discussed".

21. On 4 October 2004 AGT Co issued an application notice in the second action seeking a declaration that this court has no jurisdiction over AGT Co and for an order that the Claim Form and its service be set aside. Andrew Smith J described the basis of this challenge at paragraph 47 of his judgment of 12 October 2005: -

"AGT Co are a Greek company with a registered office in the Piraeus, and are not domiciled in England. Mr Tavoulareas brings a claim in England in the basis of article 5(1)(a) of the Brussels Regulation. AGT Co dispute the jurisdiction of the English court on two grounds. First, they dispute the English court has jurisdiction under article 5, denying that place of the performance of the obligation to pay is England and submit that it is Greece. Secondly, they say that the Greek proceedings were issued before these proceedings and this court should stay the second action."

The second argument involved reliance upon Article 27 of the Judgments Regulation.

22. The decision of the Greek court was published on 22 October 2004. The final paragraph of the judgment reads: -

"Tried and determined in Piraeus on 15/10/2004 and pronounced in this court at an extraordinary public sitting on 22/10/2004, in the absence of the parties and their appointed attorneys."

It is not entirely easy to reconcile this with the statement in the second paragraph of the same judgment which reads: -

"Sat in public in its court room on 28/9/2004 to try the matter between ……."

However, putting that matter on one side, Andrew Smith J said of the publication of the decision, at paragraph 18 of his judgment: -

"The Court's decision was published on 22 October 2004, and it was in favour of the Tsavliris claimants. Remarkably, however, according to the evidence of Mr Albouras, they did not come to know of the decision until after the hearing before David Steel J on 8 December 2004. (It is the more remarkable because Mr Peter Irvin, who represents Mr Tsavliris, told David Steel J on 8 December 2004, "They have had the substantive hearing and they are waiting for the judgment. I have taken instructions very recently that that is the position.")

23. The judgment of the Greek court recited that the Defendants were not represented in court by an appointed attorney and were absent. After dealing with service on the corporate defendants the court proceeded in its judgment as follows: -

"….With regard to the third Defendant, who is resident in London, a certified copy of the instant action has been served lawfully and in the prescribed time on the prosecuting attorney to this Court and has been forwarded abroad to be served on the Defendant pursuant to the provisions of Articles 15 and 16 of the Hague Convention of 15/11/1965, in view of the fact that England is one of the countries that have ratified the said convention. Given, therefore, that service has been effected by one of the methods stipulated in the said convention and that since the dispatch of the serviceable document (18/2/2002) till today (18/2/2002) (sic, at any rate in the translation) a period in time greater than six (6) months has elapsed, this Court may enter judgment, despite the fact that it has not been possible to obtain confirmation of service of the document (see document no. 155316/7-10-2002 of the Ministry of Justice) in accordance with the provisions of paragraph 2 Article 15 of the aforementioned convention in conjunction with the relevant declaration by Greece under the said Article which took place with the verbal note of 23/11/1989 of the Greek Embassy in the Hague…… In consequence thereof and given that the Defendants have not appeared during the calling forth of the case in its order from the cause list, they must be tried in absentia, also in view of the fact that postponement from the cause list is deemed to be a summons to all the parties. Nevertheless, the Court will proceed to hear the case as though all parties were present….."

24. The judgment also records that "during the hearing of the case the Plaintiffs' appointed attorneys asked the Court to admit the arguments set forth in the minutes and in their written submissions."
25. I have already set out the evidence before me to the effect that the Claimants in the Greek proceedings indicated their intention not to call any oral evidence and the conclusion of Andrew Smith J to like effect on the basis of the evidence before him. In the light of that evidence it is puzzling to find that the Greek court introduced its findings of fact with the following: -

"In the instant case, on the basis of the statement made by the Plaintiffs' witness, Xenophon Constantinidis, who was examined in this courtroom and whose statement is contained in the tape-recorded minutes bearing the same number as this judgment, as well as of all the documents lawfully produced and invoked by the parties, the Court finds the following facts……"

The court then continued: -

"The first plaintiff is an enterprise whose activities are the provision of towing, rescue and salvage services on a global scale whilst the first defendant is the owner of the Panamanian-registered tanker vessel "ATLAS PRIDE" which on 30/8/1991came close to sinking from a rupture in its quick-works while making way off the south-eastern coast of South Africa laden with 240,000 tonnes of crude oil bound for Brazil. That same day the first plaintiff undertook the salvage of the endangered ship, signing in Greece the relevant contract on the basis of the conditions of the Lloyd's standard agreement "LOF 1990 Salvage Agreement No Cure No Pay", which provided that remuneration would be determined in arbitration in London provided that a beneficial outcome was achieved. Following the assignment of the salvage of the vessel to the first plaintiff, the first defendant compelled it to promise, under a written declaration dated 3/9/1991 which it signed, that it would refund it 38% of the amount of the fee awarded to it in arbitration in London after deduction of costs and that in any event, irrespective of the total amount of costs, it would refund it a proportion not less than 25% of the gross amount that would be awarded to it. During inspection of the endangered ship, it was ascertained that her salvage required a combination of a number of operations (bringing under control towing, repairs to the ship, transhipment of the cargo, completion of the carriage, etc) which involved expenses that the first plaintiff could not afford. The first defendant then proposed to the first plaintiff that it be financed by one of the companies in the Group to which it itself belonged, specifically the second defendant of which the principal shareholder and legal representative was the third defendant who controlled the whole Group of these companies. For the granting of the loan and for the defendants to secure the refund of the agreed sum from the salvage award that would be decided, they required the first plaintiff to sign a declaration saying that it owed to the second defendant the sum of US$748,000. And so, for the first plaintiff to undertake the salvage of the vessel, it signed the relevant declaration dated 30/9/1991, even though it has never received the aforementioned sum. Up to the end of the salvage, the first plaintiff received from the second defendant, as a loan, in instalments and at various stages of the salvage, the total sum of US$2,216,000, which was paid to it through the fourth plaintiff, with an agreed rate of interest of 7%. This loan has been repaid by the first plaintiff since 1996. However, although none of the plaintiffs has the slightest debt or legal obligation towards the defendants, the latter present themselves from time to time as having various claims against the plaintiffs and demand from them various sums as being due from the above cause. The plaintiffs therefore have a legal interest in obtaining a court judgment recognising the non-existence of any debt on their part vis-à-vis the defendants, deriving from the aforesaid cause, that is the salvage of the vessel ATLAS PRIDE, as detailed in this ruling. In view of the foregoing, the present action must be admitted as also founded on substantive grounds. Further, the legal security must be fixed for failure to appear in court in the event that a substantiated objection to the failure to appear is exercised against this judgment by the absent defendants (articles 501 and 505 C.Civ.P.). Finally, the plaintiffs' legal costs must be borne by the defendants as they have lost this action (art.176 C.Civ.P.).

ON THESE GROUNDS

The Court gives judgment in the absence of the defendants.

Fixes the security for failure to appear in court at one hundred and twenty (€120).

Allows the action.

Recognises that there's no debt or liability on the part of the plaintiffs towards the defendants arising from and connected with the salvage of the vessel ATLAS PRIDE and specifically from the first plaintiff's written declarations of 3/9/1991 and 20/9/1991.

Orders the defendants to pay the plaintiffs' legal costs which are fixed at two hundred euros (€200)."

26. On 8 and 9 December 2004 there came before David Steel J in this court the two outstanding applications in the two actions, one to set aside the default judgment, the other challenging the jurisdiction of the court. It will be recalled that it was at this stage unknown that the Greek court had already given judgment. I can again do no better than to reproduce Andrew Smith J's description of what occurred: -

"The hearings before David Steel J

21. These applications came before David Steel J on 8 December 2004. Starting with the application in the first action, he first heard argument about whether the application should be refused regardless of the implications of the decision of the Court of Appeal and the Greek proceedings. He decided in a judgment given on 8 December 2004 that the points raised by Mr. Tsavliris afforded sufficient defence for the judgment to be set aside.

22. Upon the question whether the judgment should be set aside on the condition that security for the claim be provided, David Steel J said this: "Leaving aside the question of the impact of the Court of Appeal judgment, I have not forgotten that it would be appropriate to give consideration to the additional term which the claimant's solicitors thought it was appropriate to seek to impose as a condition for setting aside the default judgment, namely the posting of security for the claim by a payment into court. I am not persuaded that delay is the sort of justification for requiring a payment into court. Either the delay is so damaging as to justify refusal of relief, or, if it is not, it does not seem to me to be a justification for imposing a term for payment in if the position is that, so far as the first defendant is concerned, there is and remains a real prospect of successfully defending the claim. Accordingly, I would not impose that condition. Accordingly, and again entirely without prejudice to a review of the outcome in the light of further argument relating to the significance of the Court of Appeal decision and the continuing existence of proceedings as between the same parties in Greece, I would give the first defendant the relief he seeks, namely that this judgment, which was obtained by default, be set aside."

23. David Steel J then went on to hear argument about the significance of the Court of Appeal decision and the Greek proceedings. Mr Philip Shepherd QC, who represents Mr Tavoulareas, argued that this Court should ensure that the decision of the Court of Appeal that the English Courts were first seised of the proceedings is not undermined, and should therefore either decline to exercise its discretion to set aside the judgment or decline to do so in the absence of an appropriate undertaking with regard to discontinuing the Greek proceedings.

24. In response to this argument, Mr Irvin on behalf of Mr George Tsavliris made the following submission, as it is summarised in a judgment of David Steel J given on 9 December 2004, [2004] EWHC 3390: first, that Mr Tavoulareas had applied for an anti-suit injunction to the Court of Appeal when the Court handed down their judgment, but, Mr Tsavliris expressing a wish to petition the House of Lords for leave to appeal, the Court declined to consider the application. However, Mr Tavoulareas did not apply for an injunction when no petition was presented. Secondly it was said that Mr Tavoulareas had in fact participated in the Greek proceedings, and it was open to him to deploy the Court of Appeal's judgment in the Greek proceedings to prevent injustice.

25. These two arguments advanced by Mr Irvin did not, it appears, greatly impress David Steel J, who saw "great force" in the claimant's submissions on these points. He said that it was understandable that an application for an injunction was not immediately pursued, given Mr Tsavliris' expressed intention to petition for leave to appeal: in the absence of a successful appeal, it might reasonably have been inferred, the Greek proceedings would be abandoned. As for Mr Tavoulareas participating in the Greek proceedings, David Steel J said that the material before him did not enable him to determine whether he had done so in any significant way, and such material as was before him suggested that "at least he was involved for the purpose of ensuring that the hearing in January 2003 in Greece was adjourned pending the outcome of the jurisdiction application in England". However, the principal argument that Mr George Tsavliris deployed was based upon the decision of the European Court in Turner v Grovit, [2004] 2 Lloyd's Reports 169, and I shall refer to this argument later in my judgment.

26. David Steel J was, however, concerned that the Greek court had been in ignorance of the English proceedings, and in particular had not been made aware of the orders of either Tomlinson J or the Court of Appeal, and concluded his judgment in the following terms: "It is clearly consistent with the principle of mutual trust that the Greek court should be informed of the Court of Appeal judgment as soon as possible. Whilst I am minded … to set aside the judgment on its merits and to do so without the requirement that money be posted in court, what I am proposing at this stage is to make an order that before the default judgment be set aside that there be a stay of that order for two months. In the meantime, the defendant must immediately notify the court by letter in English and Greek of the judgment and of its outcome, the letter to be drafted by counsel and copied to the court. That must be despatched within seven days. Secondly, the first defendant must take steps to obtain a translation of the judgment of the Court of Appeal and its order, again, as I provisionally conclude, for despatch to the Greek court, within 28 days. This matter should be restored before me on 14 January 2005 for further review of the terms of this order in which will be included, if appropriate, considerations as to whether there should be a payment into court as a term of the order setting aside judgment."

27. No order was drawn up and signed by David Steel J following the hearing and judgment on 9 December 2004."

27. In the course of the argument before David Steel J Mr Peter Irvin, for the Tsavliris interests, speculated, without instructions, that the purpose of his clients in pursuing the Greek proceedings was to obtain a judgment inconsistent with whatever judgment might be rendered in the English proceedings so as to make more difficult enforcement of the latter in Greece.
28. I return to the narrative as set out by Andrew Smith J in his judgment of 12 October 2005: -

"30. After the hearing on 9 December 2004 there was a little delay before agreement was reached upon the draft of the letter to be sent to the Greek court, and the time for sending it was extended to 20 December 2004. Before it was sent, Mr [George] Tsavliris, or his advisers, learned of the judgment of the Greek Court. On 20 December 2004 the letter and a copy of the Court of Appeal decision in English were left at the Greek court with a porter shortly before 4.00pm, the court office being closed. They were sent to the court by fax on 23 December 2004. Mr [George] Tsavliris declined to obtain a translation of the Court of Appeal judgment despite the order of David Steel J. The reason given for this decision was that since the Greek court would not review its judgment of its own motion, the costs of doing so would be disproportionate.

31. The matter came back before David Steel J on 14 January 2005. It was accepted on behalf of Mr [George] Tsavliris that he had not complied with the orders of December 2004 about supplying the Greek court with a translated copy of the judgment of the Court of Appeal, and that the judgment in default had not been set aside by the rulings already made. David Steel J ordered that Mr [ George] Tsavliris use every best endeavour to ensure that the letter of 17 December 2004 and other documents including a translation of the Court of Appeal decision be brought to the attention of the Greek judges, and adjourned the application to set aside the default judgment. The application in the second action was also adjourned."

29. It seems likely that some confusion was caused by the fact that the letter sent to the Greek court was written on the basis that the Greek court had not yet given judgment. On 15 March 2005 Messrs Constant and Constant addressed a letter to the President of the Greek court in these terms: -

"We understand that the Court is concerned to know where it is being asked by the Commercial Court in London to say whether or not its decision would have been any different had it been aware of the English Court of Appeal judgment in Tavoulareas v. Tsavliris.

We respectfully refer you to the letter dated 25 January 2005 approved by Steel J, the Commercial Court Judge, and which he ordered to be brought to your attention. A copy of the letter and the order in respect of it is attached. You will see that the substance of the English Court of Appeal's judgment is set out at points 1-7 in the letter. We invite you to take particular note of the final paragraph of the letter (again we emphasise that it was approved by the judge in accordance with his order):

"On behalf of the Claimant it has been argued that the judgment should not be set aside until George Tsavliris agreed to discontinue the proceedings in Greece. On 9 December 2004, the Honourable Mr Justice David Steel ordered that in the interests of mutual respect between the courts of different member states of the European Union the Greek Court ought to be aware of the Court of Appeal decision before delivering judgment. A copy of his order is enclosed. In compliance with that order we are now sending this letter."

The order was made and the letter was sent before the parties and Steel J were aware that you had already given judgment against Mr Tavoulareas. Notwithstanding this, Steel J made a further order (attached) so that he could be absolutely sure, before proceeding with the case in London, that you were aware of the English Court of Appeal decision, in order to give you an opportunity of reconsidering your decision should you think fit.

We trust that this will now enable you to consider whether or not you do wish to reconsider your decision in the light of the judgment as summarised at points 1-7 of the letter of 25 January 2005.

Should you not be satisfied as to the intention of Steel J, as set out above, the parties will be obliged to return to him to ask him to confirm what is set out above, possibly in a letter specifically addressed to yourselves, but this step will obviously involve the parties in further expense and delay and we hope it will not prove to be necessary.

We look forward to hearing from you at your earliest convenience with your decision, so that it may be passed on to the English Court."

30. Andrew Smith J takes up the story at paragraph 32 of his judgment: -

"A translation of the judgment of the Court of Appeal was in due course presented to the Greek Court. By a response dated 4 April 2005 the Greek Court stated, in a communication addressed to Messrs Constant & Constant, that the question whether the Court was aware of the Court of Appeal judgment was "legally unacceptable (since the Greek Civil Procedure provides for the way and the consequence of producing documents in the trial) and even more unacceptable is your application for the granting of a confirmation as to whether the Greek Court Judgment would be different if the Court had been aware of the English Court Judgment".

31. The resumed hearing of the two outstanding applications in these actions then came before Andrew Smith J on 18 May 2005. The hearing was adjourned part heard and completed on 25 July 2005. It was accepted that the default judgment against Mr George Tsavliris should be set aside but it was argued that his conduct in relation to the Greek proceedings, including what was alleged to be the deliberate furnishing of an incorrect address for service on Mr Tavoulareas, was such that the judgment should only be set aside on condition that Mr George Tsavliris provide security for the claim together with interest and costs. In his judgment delivered on 12 October 2005 Andrew Smith J rejected this contention. Andrew Smith J found it unnecessary to decide whether the wrong address for service had been deliberately given, pointing out that Mr Tavoulareas learned of the proceedings in good time to participate in them to the extent that he saw fit. Andrew Smith J, like me, saw great force in the point that Mr Tavoulareas could himself have drawn to the attention of the Greek court before it gave judgment the decision of the English Court of Appeal. He was not convinced that there was any good reason why Mr Tavoulareas did not do so but concluded that the evidence on the point was insufficient for him to base his decision upon the failure of Mr Tavoulareas in this respect. This is a point to which I shall have to return in the light of the evidence before me. Andrew Smith J then continued: -

"41. Mr Shepherd's argument really, it seems to me, turns on his third point. Mr Tsavliris is asking the court to exercise its discretion to set aside the judgment on the grounds that, in order to do justice between the parties, the dispute should be adjudicated on the merits. I have already said that Mr Irvin's statement to David Steel J is not itself evidence of the purpose of the Greek proceedings, but I would be prepared to accept in the absence of evidence to the contrary that their purpose was to provide an answer to the claim in these proceedings, by way of either a defence to them or an obstacle to enforcing any judgment obtained in them. Mr Irvin submits that (unless and until there is a successful appeal by Mr Tavoulareas) the Greek judgment is a conclusive answer to the claim in both the first and the second action, and that under EC Regulation 44/2001 articles 33 and 34 this court must recognise it. Mr Shepherd argues that the circumstances in which the Greek judgment was obtained means that articles 34(1) and 34(2) both provide an answer to this submission. It is not for me to decide on this application whether they do so.

42. I do not regard Mr Tsavliris' purpose in prosecuting the Greek proceedings as the crucial question. The fact is by his conduct Mr Tsavliris has brought it about that it is the less likely that there will be an effective and enforceable judgment on the merits, and the fundamental question, as I see it, is whether in these circumstances it is appropriate for the English court to impose conditions upon setting aside the judgment so as to ensure that, if Mr Tavoulareas nevertheless pursues the litigation and succeeds in obtaining a judgment, the judgment will be met.

43. Mr Irvin argues that Mr. Tsavliris is not to be criticised, and other Tsavliris interests are not to be criticised, for prosecuting the Greek proceedings or for the manner in which they were prosecuted and in any event such criticisms would not be a proper reason for the court to impose conditions upon setting aside judgment. That power, he says, is to be exercised when justified by the merits of the underlying dispute, and not as a vehicle whereby the court expresses its disapproval of a party's behaviour, or at least (as I understand he would argue) not of behaviour other than the conduct of the proceedings themselves. Moreover, even if, which Mr Tsavliris disputes, criticism were justified, it is submitted that it is not for the English court to assess the conduct of the Greek proceedings and whether it is appropriate: to do so would be contrary to the judgment of the European court in Turner v Grovit.

44. Mr Irvin was right, I think, to emphasise the importance of the decision in Turner v Grovit. The decision in that case was that the Brussels Convention precluded the grant of an injunction prohibiting a party to proceedings before it from commencing or continuing legal proceedings before the courts of another contracting state, even where the party is acting in bad faith with a view to frustrating existing proceedings. In so far as criticism of the conduct of the party involves an assessment that his conduct is abusive and "implies an assessment of the appropriateness of bringing the proceedings before the court of another Member State", such an assessment would run contrary to the principle of mutual trust that underpins the Convention and should not be made: see para 28 of the Judgment. I therefore accept, despite the fact that the Greek court apparently reached its own decision without knowing about the decision and judgments of the Court of Appeal, that this court should not accede to Mr Tavoulareas argument in so far as it rests upon this court taking the view that the pursuit of the Greek proceedings was inappropriate or an abuse. In light of Turner v Grovit, that course could not be justified, even if the reason that it was taken was in order to defend the integrity of these proceedings.

45. This argument, it seems to me, has to be taken a step further because Mr Shepherd's complaint is directed not only to the fact that the Greek proceedings were pursued, but also to the intention to deploy the Greek judgment in answer to these proceedings. I consider that it would run contrary to the reasoning of the European court to take the view that it would be inappropriate for Mr Tsavliris to deploy the judgment of the Greek court under article 26 of the Convention or article 33 of the Regulation, and that this criticism of Mr Tsavliris' apparent intention justifies the imposition of the condition for which Mr Tavoulareas contends. That too, it seems to me, would be inconsistent with the "mutual trust which has enabled a compulsory system of jurisdiction to be established", a system that itself provides for the circumstances in which there should not be recognition. Indeed, to criticise the deployment of the judgment in the Greek proceedings in the manner contemplated by the Regulation does, I think, in reality, amount to an assessment that the proceedings themselves were inappropriate.

46. It seems to me that if I were to make my order setting aside the judgment of 17 January 2002 conditional upon the payment into court, I would, given the conclusions reached by David Steel J, implicitly be assessing the appropriateness of the Greek proceedings. In view of the judgment of the European court in Turner v Grovit, I do not consider it right for me to do so. However, quite apart from what was said by the European court, I would not regard the conduct of Mr Tsavliris as providing a proper basis for imposing a condition upon an order allowing Mr Tavoulareas' claim being considered on its merits. I would accept Mr Irvin's submission that the imposition of a condition such as that for which Mr Tavoulareas contends would not be justified by disapproval of Mr Tsavliris' behaviour in the respects in which it is criticised."

32. Andrew Smith J then turned to the application of AGT Co. In reliance on Article 19 of the Service Regulation and passages from the judgment of Mance LJ to which I have already referred above he concluded that even if definitive pendency of the Greek proceedings was postponed beyond the date on which Mr Tavoulareas had notice of the Greek proceedings, 31 December 2001, there was no basis for an argument that Article 19 had the effect of postponing it until August 2004. He therefore concluded that the Greek court was definitively seised of the Greek proceedings before this court was seised of the second action.
33. That meant that the application of AGT Co turned on the question whether Article 27 of the Judgments Regulation applies where the proceedings in the court first seised have proceeded to judgment. Andrew Smith J had not heard argument directed to this point. As to this he said: -

"69. Of course, if the provisions of article 27 do not apply after judgment in the proceedings in the court first seised, the question then will arise whether article 33 provides an answer to the claim and therefore Mr Tavoulareas should be prevented from pursuing it. However, Mr Shepherd objects to AGT Co making an application on this basis because it is not covered by their application notice. (At the time that they made their application, apparently AGT Co did not know that the Greek court had given notice.) It seems to me that there is force in Mr Shepherd's point and for two reasons it is not an arid procedural technicality. First, Mr Tavoulareas would rely upon article 34 to answer an argument based on article 33 and he has not prepared in order to present his argument that it does. Secondly, it appears likely that a similar question will arise in the first action and if so it is sensible that the point should be considered in the two actions together.

70. Accordingly, I shall invite the parties to make submissions as to whether article 27 engages after and despite the judgment of the Greek court and, if there is an issue between the parties about this, shall determine AGT Co's application in light of my decision upon that issue."

34. Andrew Smith J heard further argument on 11 November 2005. On 24 November 2005 he gave a second judgment, [2005] EWHC 2643 (COMM). He concluded that Article 27 applies only where there are concurrent proceedings at the time when the court not first seised makes its determination. It followed that as at the date of his determination there were current proceedings only in this court. Andrew Smith J then proceeded to give directions as to the manner in which it should be decided in both actions whether the Greek judgment should be recognised. On 28 November 2005 the Tsavliris interests as Defendants in both actions issued their application pursuant to Article 33.2 of the Judgments Regulation that the Greek judgment should be recognised in the two actions. It is that application which came before me on 21 February 2006.
35. With that lengthy introduction I come to the points which I have to decide. The introduction has unfortunately been necessary in order to provide the context in which the parties' respective contentions must be seen.
36. Chapter III of the Judgments Regulation is headed "RECOGNITION AND ENFORCEMENT." Section 1, under the rubric "Recognition," provides as follows: -

"Article 33

1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

2. Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Chapter, apply for a decision that the judgment be recognised.

3. If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question of recognition that court shall have jurisdiction over the question.

Article 34

A judgment shall not be recognised:

1. if such judgment is manifestly contrary to public policy in the Member State in which recognition is sought;

2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

3. if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought;

4. if it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.

Article 35

1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3,4 or 6 of Chapter II, or in a case provided for in Article 72.

2. In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction.

3. Subject to paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction.

Article 36

Under no circumstances may a foreign judgment be reviewed as to its substance.

Article 37

1. A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged.

2. A court of a Member State in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the State of origin, by reason of an appeal."

37. It is convenient to note at the outset that, should it be relevant, whereas in the first action the English court is the court first seised, in the second action it is the Greek court which is the court first seised. I mention this point because in Hendrikman v. Magenta Druck [1996] ECR I/4943 both the Advocate General and the Court pointed out that the European Court had twice said that Article 27(2) of the Brussels Convention, which is the precursor of Article 34.2 of the Judgments Regulation, is intended to ensure that a judgment is not recognised or enforced under the Convention if the defendant has not had an opportunity of defending himself before the court first seised.
38. Mr David Goldstone, for Mr Tavoulareas, submits that the conditions for non-recognition as set out in Article 34.1, 34.2 and 34.3 are all satisfied although as he rightly points out it is sufficient for the purposes of non-recognition that just one sub-article is applicable. I propose first to address Article 34.2.

Article 34.2

39. Article 34.2 has three elements. Mr Irvin contended that the party against whom the relevant judgment has been obtained must establish each of them in order to avoid recognition. First there must be a judgment in default of appearance. Secondly the defendant must show that he was not served with any sort of document instituting the proceedings in sufficient time and in such a way as to enable him to arrange for his defence. Thirdly, the defendant must not have failed to commence proceedings to challenge the judgement when it was possible for him to do so. Mr Goldstone accepted for the purposes of argument before me that it is only relevant to consider whether the defendant has failed to commence proceedings to challenge the judgment if the first two conditions are met. Although at the time when the Tsavliris interests applied for recognition of the Greek judgment Mr Tavoulareas had not commenced proceedings to challenge the same, he has now done so. It is common ground that because the judgment in the Greek proceedings has not been served on Mr Tavoulareas he is entitled as of right to file an appeal within three years of publication or issue of the judgment, 22 October 2004. Mr Tavoulareas filed an appeal on 16 February 2006. The document constituting the appeal asks for "the default judgment" to be set aside on various grounds including lack of service, lack of jurisdiction and on the merits. It is accepted that these are "proceedings to challenge the judgment" such as are referred to in Article 34.2. Mr Irvin contended that since the appeal was filed subsequent to the application for recognition of the judgment it would not be sufficient to prevent recognition even if the Claimant establishes the first two elements of Article 34.2. He suggests that the position should be examined as it obtains at the date of application for recognition. I reject that argument, which reflects a similar argument advanced unsuccessfully by Mr Irvin before Andrew Smith J in relation to Article 27 of the Regulation. It is to my mind obvious that the position must be examined as at the date when the court is called upon to decide whether to recognise the judgment. Since an appeal has now been commenced the Claimant will not be defeated by the proviso if he satisfies the court that the other elements of Article 34.2 are applicable.
40. The first of those elements is that the judgment was given in default of appearance. Mr Irvin points out that Mr Tavoulareas has adduced no evidence bearing on the question whether the judgment would as a matter of Greek law and procedure be considered a judgment given in default of appearance. He also submitted that a conscious failure to appear at the actual hearing in circumstances where the defendant knows all about it and has appeared once before in the proceedings is not "default of appearance" in any sense other than that the defendant did not turn up on the day.
41. I do not regard as relevant to this discussion the agreed procedure pursuant to which on 17 January 2003 the parties secured the agreement of the Greek court to an adjournment, save to the extent that it demonstrates, as is in any event obvious, that Mr Tavoulareas could have appeared at the trial had he so wished. Mr Tavoulareas participated in the procedure at the direction of the English court and only to the extent necessary to bring about the success of the parties' agreed joint approach to the Greek court. In any event the Greek court recorded in its judgment that the Defendant parties were not represented in court by an appointed attorney and were absent, had not appeared during the calling forth of the case and must be tried in absentia. Evidently the Greek court did not consider that the earlier participation of Mr Tavoulareas in its proceedings derogated from those conclusions. In Maersk Olie Gas A/S v. Firma M de Haan and W de Boer [2005] 1 Lloyd's Rep 210 the European Court at paragraph 57 of its judgment drew a distinction between challenging the jurisdiction of the court and appearing to defend on the merits, a distinction well recognised in English law and procedure. Whilst not directly analogous, this fortifies me in my conclusion that it would be inappropriate in this European context to regard the participation of Mr Tavoulareas in the January 2003 application as precluding his reliance upon his later non-appearance.
42. Mr Goldstone submitted that "default of appearance" has an autonomous meaning under community law. There is support for that proposition in paragraph 26 of the Opinion of the Advocate General in the Hendrikman case. I find it difficult to extract from Hendrikman any real guidance as to what that autonomous meaning is. Hendrikman was an extremely odd case. Briggs and Rees describe it as a peculiar decision – see Civil Jurisdiction and Judgments, 4^th Edition at p.509. The defendants in that case said that they were and were presumed to have been unaware of the proceedings brought against them until served with a judgment of the Landgericht reversing the decision of a lower local court which had dismissed a claim against them. Other persons with an interest in the dispute were served with the proceedings, which were addressed to the defendants, and those other persons then instructed lawyers to conduct the defence of the claim. The German courts which rendered these judgments were under the impression that the defendants were validly represented and so naturally the defendants were not declared to be in default of appearance. The question arose whether a judgment delivered in proceedings where, although the defendant was not declared to be in default of appearance, he was not validly represented and had no knowledge of the proceedings, is a judgment "given in default of appearance" for the purpose of Article 27(2) of the Brussels Convention. The only previous case in which the European Court had had occasion to consider what is meant by default of appearance was also far from straightforward. In Sonntag [1993] ECR I/1963 criminal proceedings were brought in Italy against a German schoolteacher for causing the death by negligence of a pupil who had suffered a fatal accident on a school trip to Italy. As Advocate General Jacobs explained in Hendrikman at paragraphs 23-25: -

"23….. The deceased pupil's parents and brother joined the criminal proceedings as civil parties seeking an order against Mr Sonntag for compensation for the loss caused by the accident. The civil parties' declaration of intention to make a civil claim against him was served on Mr Sonntag. He was legally represented at the trial before the criminal court at which he was found guilty on the criminal count and ordered to pay compensation to the civil parties. The relevant German court granted the civil parties' application to enforce the civil law part of the judgment. Mr Sonntag appealed to the Oberlandesgericht, which dismissed the appeal; he appealed against that dismissal to the Bundesgerichtshof, which referred a number of questions to the Court including the following: -

"Has a defendant appeared for the purposes of Article 27(2) of the Convention where the case concerns a civil claim for damages in connection with charges brought before a criminal court….and the person against whom enforcement is sought, through counsel of his own choice, answered to the criminal charges but did not express a view on the civil claim, on which oral argument was also submitted in the presence of his counsel?"

24. Advocate General Darmon favoured a restrictive interpretation of the exception stating: "in order to be applicable, Article 27(2) necessarily implies, in my view, that the defendant is in default of appearance, and must have been found to be so by the court of the State where the proceedings were first brought……" That statement should, however, be seen in its context; it was not disputed in Sonntag that the defendant had been aware of the proceedings as a whole and had been represented at the hearing by counsel of his choice.

25. The Court did not follow the Advocate General's approach. The Court stressed that Article 27(2) was intended to ensure that a judgment was not recognised or enforced under the convention if the defendant had not had opportunity of defending himself before the court first seised. Non-recognition under Article 27(2) is accordingly possible only where the defendant was in default of appearance at the original proceedings:

"Consequently that provision may not be relied upon where the defendant appeared, at least if he was notified of the elements of the claim and had the opportunity to arrange for his defence….

A defendant is deemed to have appeared for the purposes of Article 27(2) of the Convention where, in connection with a claim for compensation joined to criminal proceedings, he answered at the trial, through counsel of his own choice, to the criminal charges, but did not express a view on the civil claim, on which oral argument was also submitted in the presence of his counsel."

The Advocate General concluded in Hendrikman, at paragraph 41: -

"I accordingly conclude that a judgment delivered in ostensibly inter partes proceedings of which the defendant was unaware and in which he was not validly represented is a judgment given in default of appearance within the meaning of Article 27(2)."

That conclusion obviously does not of itself assist Mr Goldstone's argument. Advocate General Jacobs did however cite with approval the opinion of Advocate General Mayras in Denilauler [1980] ECR 1533 which included the following passage: -

"It is however far from certain that the terms used in [Article 27(2)] can apply only to default proceedings as understood stricto senso in certain national systems.

I do not think it right to construe Article 27(2) as referring only to specific proceedings known to certain national legal systems. In my view such a construction would be too narrow and would fail to recognise the independent nature of the Convention, which is an instrument of international law, in relation to the multiplicity of proceedings under the national legal systems of the Contracting States.

This is confirmed by the English text of Article 27(2) which, by using the expression "judgment…..given in default of appearance", is careful to avoid terminology calling to mind certain national proceedings and those alone. There can be no doubt that according to the ordinary meaning of the words any judgment given against a defendant without his having been heard is a judgment "in default of his appearance." The English term refers simply to the absence of the defendant from the course of the proceedings for whatever reason."

That analysis was not adopted by the European Court which decided the case on the basis that ex parte orders were outside the scheme of the Convention as a whole."

43. The actual decision of the European Court in Hendrikman on this point is to be found at paragraph 21 of its judgment to the following effect: -

"The answer to the third question must therefore be that Article 27(2) of the Convention applies to judgments given against a defendant who was not duly served with, or notified of, the document instituting proceedings in sufficient time and who was not validly represented during those proceedings, albeit the judgments given were not given in default of appearance because someone purporting to represent the defendant appeared before the court first seised."

This is not altogether easy to understand. Article 27(2) can only apply where the judgment is given in default of appearance. Presumably therefore the phrase "albeit the judgments given were not given in default of appearance" must mean "although the judgments given were not declared to be given in default of appearance." Since the assumption was that the Hendrikmans knew nothing of the proceedings, it was unnecessary to consider what would have been the position had they known of them and had they had an opportunity effectively to defend themselves had they so wished. The conclusions of both the Advocate General and the European Court at every point emphasise and reiterate that there was present this cumulative consideration both of lack of knowledge of the proceedings on the part of the defendants and of lack of opportunity properly to defend themselves. That being so I cannot accept Mr Goldstone's submission that the Hendrikman decision is authority for the broad proposition that any judgment given against a defendant without his having been heard is a judgment in default of his appearance. On the other hand I consider that a judgment which is expressed by the court rendering it to be given in default of appearance is likely in most circumstances to be regarded as falling within the autonomous meaning of those words as used in the Regulation. The Greek judgment with which I am concerned is expressed to be given in default of appearance. Since the first two requirements in Article 34.2 of the Regulation are cumulative, I do not have to decide whether the judgment should be regarded as having been given in default of appearance if the position is that the defendant was served with the proceedings. I say simply "served with the proceedings" without adding the qualifications as to sufficient time and adequacy because it is clear in this case that, if "service" was effected, it was sufficient to enable Mr Tavoulareas to arrange for his defence before the Greek court. I am quite satisfied that, on the assumption that the proceedings were not served on the Defendant, then pursuant to any acceptable or autonomous definition of "given in default of appearance" this judgment was, as the court rendering it expressly said, given in default of appearance by the Defendants including Mr Tavoulareas.

44. I turn therefore to the question whether Mr Tavoulareas was served with the document which instituted the proceedings or with an equivalent document. Here what is said by Mr Irvin is that service was effected by means of the letter of Messrs Constant and Constant of 21 December 2001 addressed to Messrs Stephenson Harwood who acted for Mr Tavoulareas in the English action. That letter enclosed by way of service in the English action a Notice of Application contesting the jurisdiction of the English court and supporting evidence including the exhibit which contained a copy of the document which instituted the Greek proceedings. That was, submitted Mr Irvin, service in a very formal manner. He also pointed to the fact that in the Hendrikman case the Advocate General appears on more than one occasion to use the expression "served on" and "notified to" interchangeably. The touchstone of service for the purpose of Article 34.2 is, submitted Mr Irvin, to be found in the requirement that what is done must be sufficient to enable the defendant to arrange for his defence. Thus "service" is not used in any technical sense. On any showing the Defendant here was sufficiently notified of the proceedings to have been able, had he so wished, to arrange to be defended at the September 2004 hearing before the Greek court.
45. Mr Goldstone submitted that it is a misconception to think that the meaning of "service" in Article 34.2 is somehow informed by reference to the sufficiency of what is done. Even where "service" is effected, there is required a separate examination of the question whether it has been effected in sufficient time and in such a way as to enable the defendant to arrange for his defence. Support for that proposition is to be found in paragraph 21 of the Advocate General's Opinion in Hendrikman: -

"21. If that question [viz whether the judgment is given in default of appearance] is answered in the affirmative, the national court will be required to examine whether the two conditions set out in that provision [viz Article 27(2)] were met before it enforces the judgment. Those conditions are separate and cumulative: the first requirement, of due service, is to be determined by reference to the procedural law of the State in which the judgment was delivered together with any relevant international conventions; the second requirement, of service in sufficient time to enable a defence to be arranged, is a question of fact to be assessed by the court before which enforcement is sought taking into consideration the circumstances of the case before it."

I do not consider that too much significance can be read into the fact that from time to time the Advocate General appears to use the concepts of "service" and "notification" interchangeably in his Opinion. It would not have been sufficient for the purposes of that highly unusual case to point out that there had been no service, since Article 27(2) was only engaged if there was default of appearance. On the other hand in considering whether the "appearance" in that case should be regarded as real, it was relevant to consider whether the Defendants had been notified of the elements of the claim, a concept wider than mere service.

46. Mr Irvin pointed to the fact that whereas Article 27.2 of the Brussels Convention used the concept of "due" service this element is absent from Article 34.2 of the Judgments Regulation. He suggested that this was consistent with the abandonment in the Regulation of the concept of formal service being determinative of the order of seisin. He submitted that for the purposes of the Regulation issue of proceedings was a more relevant concept than service in any formal sense. For the purposes of the Judgments Regulation no formalities were now he suggested required for service other than that it be effected in such a way as to enable the defendant to arrange for his defence. Mr Irvin submitted that it would be anomalous if the Greek court were, so far as concerns the second action, the court first seised and yet this court concluded that the proceedings had not been served. Mr Irvin also submitted that if by service in Article 34.2 was meant service under the Service Regulation then it was unnecessary and superfluous to include the requirement that service be in sufficient time and in such a way as to enable the defendant to arrange for his defence.
47. I do not consider that there is any anomaly involved in recognising that a court may be seised of proceedings notwithstanding that service of them upon the defendant has not been effected. Seisin and service are different concepts designed to achieve different aims and objects. The distinction between them underpins the discussion in the judgment of Mance LJ to which I have already referred. Furthermore it does not follow that service in accordance with the Service Regulation will afford to the defendant a sufficient opportunity to arrange for his defence – the Service Regulation does not address such considerations. Moreover, as Mr Goldstone pointed out the Service Regulation is not of universal application. It is only applicable where a judicial document has to be transmitted from one Member State to another for service there, and it does not apply where the address of the person to be served with the document is not known. The requirement as to service being "in sufficient time" and "in such a way" as to enable the defendant to arrange his defence is not therefore superfluous even if, in the context of service in one Member State of proceedings issued in another, service means service in accordance with the Service Regulation. I am a little unclear what precisely is added by the expression "in such a way" to a requirement that service be effected "in sufficient time….to enable him to arrange for his defence." On the other hand, I not sure that the inclusion of the latter expression carries the argument very far in either direction.
48. For present purposes all I need to decide is whether the words "served with" involve an element of formality such as is habitually dealt with in developed legal systems by a system of rules or whether it is simply synonymous with notification however that may be achieved. There is I think some force in Mr Goldstone's suggestion that the scheme of Article 34.2 is broadly that if a defendant has been served with proceedings it ought not to avail him not to appear. If on the other hand a defendant who has not been served with proceedings chooses to appear, it ought not to avail him that he was not served.
49. For my part I am unsure as to the significance of the omission of the word "due" or "duly" as qualifying "service" or "served." Accepting that the word "service" must no doubt in this context be given an autonomous community meaning, it is nonetheless a well recognised legal term of art expressing a well understood concept, even if different legal systems may have different rules as to how it is to be effected. Briggs and Rees, op cit at p.509 think it improbable that the omission of the word "duly" has any real significance. For them, "a defendant may say that he has not been served if the document was not delivered in accordance with the law of the state in which the proceedings have been commenced, even though it may have come to his attention in some irregular way. The omission of the word "duly" seems to make little real difference to the structure of the argument." On the other hand the learned editors of Dicey and Morris, The Conflict of Laws, Fourth Cumulative Supplement to the Thirteen Edition at paragraph S14-213 consider that the omission of the word "duly" may have some significance, probably as I read them in relation to cases where there may have been some relatively trivial irregularity or defect in service. In my judgment whatever the significance may be it is unlikely to be relevant here, where there has been no service at all if service denotes something more than notification or delivery. There is a helpful discussion of the legislative history of Article 34.2 in O'Malley, European Civil Practice, Second Edition, at pp.909 – 913, paragraphs 26 – 046 to 26 – 052. In the light of that legislative history and the decisions of the European Court on Article 27(2), Isabelle Lancray S.A v. Peters and Sickert KG [1990] ECR I-2725 and Minalmet GmbH v. Brandreis GmbH [1992] ECR I-5661 it is I think clear, as the learned editors of O'Malley suggest at paragraph 26 – 052, that "service" as used in Article 34.2 of the Judgments Regulation is a legal concept which requires a framework of rules to give it meaning and distinguish it from mere delivery. Mr Irvin came close to conceding, if he did not actually do so, that Mr Tavoulareas had not been served with the Greek proceedings if service meant something more than bringing those proceedings to his attention. The only attempt made to serve Mr Tavoulareas with the Greek proceedings was through the medium of the Public Prosecutor which failed. Although Mr Irvin described delivery to Messrs Stephenson Harwood of the letter of Messrs Constant and Constant in December 2001 as service of a very formal character he did not I think thereby mean to imply that it constituted service if that word was being used as a legal term of art. Apart from anything else, it was service in the English action rather than purported service of the Greek action. Messrs Constant and Constant had no reason to believe that Messrs Stephenson Harwood were authorised to accept service of the Greek proceedings. Indeed at other stages of his submissions Mr Irvin described the proposition that Mr Tavoulareas had never been served with the Greek proceedings as probably correct. Moreover I am bound and so are the parties by the decision of the Court of Appeal to the effect that the Greek proceedings have not been served on Mr Tavoulareas. The Court of Appeal has decided that point both on the basis that the point is under Greek law informed by the Service Regulation and on the basis of Greek domestic law unconstrained by that Regulation. In the view of the Advocate General in Hendrikman the question of service for the purposes of Article 27 is to be determined by reference to the procedural law of the state in which the judgment was delivered together with any relevant international conventions. The Court of Appeal has decided by reference to the procedural law of Greece together with any relevant international conventions that service of the Greek proceedings upon Mr Tavoulareas has not been effected.
50. For all these reasons I conclude that by reason of the satisfaction of the conditions in Article 34.2 of the Judgments Regulation the judgment of the Greek court should not be recognised in the two English actions. Much of the learning on Article 34.2 and its predecessor Article 27(2) is suggestive that the rationale underlying Article 27(2) and thus Article 34.2 is that ordinarily the judgment under consideration will have been rendered by a court first seised. However that may be, my conclusion so far as concerns Article 34.2 is obviously equally applicable to both actions.
51. This conclusion renders it unnecessary to consider Article 34.1 and 34.3. Since the points were fully argued I will express my conclusions quite shortly.

Article 34.1

52. Here as it seems to me different considerations may obtain in the two actions. So far as concerns the first action, in which the English court is first seised, what is said on behalf of Mr Tavoulareas is that it was the Tsavliris interests which invoked the procedure in this court to establish that the Greek court was first seised. However having obtained from the Court of Appeal an answer which they did not like they deliberately chose not to tell the Greek Court about it. That the decision was deliberate is clear. Mr Dickinson for the Tsavliris interests puts it this way at paragraph 12(c) of his Witness Statement of 1 February 2006: -

"The Tsavliris parties were entitled to take the view that the Court of Appeal was wrong in its approach to the question of whether or not the Greek proceedings were definitively pending before the initial English proceedings were served."

What has occurred therefore is that the Greek court has been prevented from considering whether, in the light of the decision of the English court that it was first seised, it the Greek court should decline jurisdiction. It would, submits Mr Goldstone, be entirely within the scheme of the Convention and the Regulation or within their respective spirits to deny recognition to a judgment so obtained. So to do will promote the purposes of the Convention and of the Regulation by encouraging litigants to notify courts second seised of judgments rendered by the court first seised.

53. Mr Irvin for his part rested his opposition to this approach on the consideration that there was nothing in the Convention or in the Regulation which prevented the Tsavliris interests from proceeding as they did and that Andrew Smith J has already concluded that their having done so ought not to be visited with sanctions. Mr Irvin also pointed out that Mr Tavoulareas could had he so wished have drawn to the attention of the Greek court the decision of the English Court of Appeal.
54. Underlying this debate is the question whether for this court to deny recognition to the Greek judgment would "imply an assessment of the appropriateness of bringing proceedings before a court of another Member State," an assessment which this court ought not to undertake in the light of the strictures of the European Court in Turner v. Grovit, above, at p.113.
55. The exercise with which I am here concerned is not the same as that which faced Andrew Smith J in deciding whether to impose conditions upon the setting aside of the English default judgment. A failure to afford recognition to the Greek judgment does not necessarily imply any criticism of the conduct of the Tsavliris interests in either invoking the Greek jurisdiction or pursuing their action to judgment. Non-recognition pursuant to Article 34.1 could be said to reflect a view simply that this court should ensure, as best it can without interference, direct or indirect, in the jurisdiction of other Member States that the regime of the Convention and the Regulation is observed. It could be said that the regime has not been observed if the court second seised has not, for whatever reason, had the opportunity to consider the implications, if any, flowing from the order of seisin of courts in more than one Member State of actions involving the same cause of action and between the same parties. I am not persuaded, although I do not need to decide, that for the English court to deny recognition to the Greek judgment in the first action would "[run] counter to the principle of mutual trust which….. underpins the Convention and prohibits a court, except in special circumstances….. from reviewing the jurisdiction of the court of another Member State." At paragraph 30 of its judgment, p.114, the European Court explained why the grant of anti-suit injunctions did not in its judgment contribute to the attainment of the objective of the Convention, which is to minimise the risk of conflicting decisions and to avoid the multiplicity of proceedings. The Court said this: -

"First, recourse to such measures renders ineffective the specific mechanisms provided for by the Convention for cases of lis alibi pendens and of related actions. Secondly, it is liable to give rise to situations involving conflicts for which the Convention contains no rules."

As Mr Goldstone points out neither objection applies here. The specific measure provided by the Convention, and now by the Regulation, namely Articles 21 and 28 respectively, have failed because of the deliberate omission by the Tsavliris interests to draw to the attention of the Greek court the judgment of the English Court of Appeal. Nor, submits Mr Goldstone, would a refusal to grant recognition give rise to any conflict for which the Convention contains no rules. Although he did not spell it out, the basis of that submission is, I imagine, that either ex hypothesi there is such a rule contained within the Regulation, viz Article 34.1, or, alternatively, it might be said that it is not non-recognition which gives rise to a situation involving a conflict but rather the failure to afford to the Greek court the opportunity itself to consider whether such a conflict should be avoided.

56. However in that latter regard I am troubled by the consideration that, as it seems to me and as it seemed to Andrew Smith J, there is no good reason why Mr Tavoulareas should not himself have drawn to the attention of the Greek court the existence of the English judgment. The only evidence before me which bears upon the alleged constraints upon Mr Tavoulareas in that regard is contained in paragraphs 41 and 42 of Mr Keates' ninth Witness Statement which read: -

"41. Once that step had been taken [viz participation in the joint agreed application to the Greek court on 17 January 2003 to request an adjournment] the Claimant did not take any further part in the Greek proceedings because it became apparent from advice that he received, and the expert evidence of Greek law in the London proceedings, that it was not possible to challenge jurisdiction as a preliminary issue under Greek procedure. The Claimant would have had to deal with the merits of the case as well as the jurisdiction defence. In these circumstances the Claimant has never been in a position to draw any matters to the attention of the Greek court and had no reason to do so.

42. It was not correct, as Mr Justice Smith says at paragraph 40 of his judgment of 12 October 2005, that the Claimant could have brought the decision of the Court of Appeal to the Greek court's attention: if he had done so he ran the risk that the Greek court would find that he had submitted to its jurisdiction."

57. Just as Andrew Smith J regarded the evidence before him on this topic as insufficient to be a satisfactory basis for a dispositive conclusion, so I regard the evidence before me as insufficient to enable me to conclude that in the unusual circumstances of this case it would be manifestly contrary to public policy to afford recognition to the judgment of the Greek court. The evidence is insufficient to enable me to conclude that there was a real impediment to Mr Tavoulareas drawing to the attention of the Greek court the existence of the English judgment. Without such a finding, I have to conclude that both parties before the court share responsibility for the situation which has arisen. That does not detract from the fact that in the result the regime of the Convention and the Regulation has not been observed, but it does to my mind make it difficult to conclude that recognition of the Greek judgment would be manifestly contrary to public policy. This renders it doubly unnecessary to consider the position in the second action where the Greek court is first seised.

Article 34.3

58. That leaves only the question whether the Greek judgment is irreconcilable with the decision of the Court of Appeal. It is suggested by Mr Goldstone that irreconcilability can be found in the assumption by the Greek court of a Convention jurisdiction which the English court has already decided the Greek court does not have. I do not consider that this is a correct characterisation. The Greek Court did have jurisdiction to entertain the action – the only question is whether, had the existence and nature of the decision of the Court of Appeal been drawn to its attention at the appropriate time, it might have felt obliged by the Convention or the Regulation to decline that jurisdiction. I do not need to consider what are the limits of irreconcilability under Article 34.3. It suffices that there is in my judgment no irreconcilability between the English and Greek judgments. The English decision is to the effect that the English court is first seised. The Greek decision says nothing on that score and in my view assumes nothing on that score.
59. However in the light of my earlier conclusions so far as concerns Article 34.2 the application of the Defendants in these two actions must be dismissed.