England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION

		17 May 2012

Factual background and procedural history

1. The Claimant ("Mr McKew") is a retired businessman, now aged 83, and resident in London. The Defendant, now aged 74, lives with his wife in Switzerland, where he has had a residence since 1980 and held a resident's permit since 1998. This case concerns a claim by Mr McKew against Mr Moore for payment of €440,000 under a deed of indemnity dated 2 November 2010.
2. Mr Moore was involved with Mr Mark Sykes in a vanity publishing company called Athena Press Limited, though all the issued shares in that company were transferred in 2004 to a Swiss company, Athena Press S.A., which is said by Mr McKew to be in turn wholly owned since 2007 by a similar-named company registered in the British Virgin Islands. In August 2011 Athena, since renamed Wilbury Publishing Limited, went into voluntary liquidation.
3. According to Mr McKew he was approached by Mr Sykes in 2005 seeking capital to enable Athena to expand its operations, and was persuaded to advance ,31,000 with a dividend (by way of agreed interest) of ,9,000. Mr McKew says that it was advanced as a personal loan to Mr Sykes and Mr Moore: Mr Moore says that the money was advanced to Athena.
4. In 2007, according to Mr McKew, he arranged a further loan of €200,000 (using funds from a third party) paid in three tranches over a year and intended to be repaid at the end of two years with a 200% dividend, making a total of €600,000. Again there is a dispute as to whether this money was advanced to the company or, as Mr McKew maintains, was a personal advance to Mr Moore and Mr Sykes. He further says that in discussions between the three men he offered -and his offer was accepted -to reduce the amount of the interest (or, as he had earlier described it, the dividend) from three times the value of the loan to twice that value, which according to Mr McKew, though apparently inconsistent with orthodox arithmetic, resulted in a figure of €440,000.
5. Deeds of Guarantee and Indemnity were drawn up by Mr Savani, Mr McKew's solicitor, and executed by Mr Moore and Mr Sykes, that signed by Mr Moore being dated 2 November 2010. Mr Moore is described as "the Guarantor" and recited as being jointly and severally liable with Mr Sykes for the repayment on demand of "the Loan", defined as "the loan in the sum of €440,000 made by the Lender, Mr McKew, on various dates from 29 November 2005 to June 2008. Clause 1 then provides that Mr Moore guarantees and undertakes to pay the Lender on demand the "Guaranteed Liabilities", defined as (a) the Loan and (b) "Legal Fees" incurred by Mr Moore in the preparation and execution of the Deed and any actions taken to recover repayment of the Loan.
6. Under Clause 2.6 Mr Moore agreed to immediately apply his interest in the proceeds of sale of a property in Mollens, Switzerland, towards discharge upon realisation of the same -this referred to a chalet bought by Mr Moore and his wife in the 2000s and since renovated, and which they were intending to sell. According to Mr Moore he was told that his life would be in danger if he did not sign the deed and he did so as the result of those threats.
7. Later that month, in response to some pressure from Mr McKew through his solicitor, Mr Moore and Mr Sykes informed the latter that Mr Moore had given an instruction to his Swiss bank, UBS, to pay the amount as a charge from his proportion of the sale after discharge of the bank's debt secured on the Mollens property. He also gave Mr McKew a copy of the letter of instruction. Mr Savani then wrote to UBS in Sion, Switzerland, asking for confirmation that (1) Mr Moore held an account with that branch with details of the account number (2) UBS held two mortgages totalling €770,000 and would receive all the proceeds of sale (3) UBS had received Mr Moore's letter of instruction and accepted it as a first charge on the property. Mr Moore reported back through his English solicitors that UBS was as a matter of principle not prepared to give confirmations of that sort. Before me it was suggested that this was so unlikely as to indicate that Mr Moore had lied about giving the instructions to UBS. I am unimpressed by this submission: on the contrary it seems to me entirely plausible and perhaps even probable that a Swiss bank manager would have reacted in this way.
8. For some 11 months thereafter matters lay completely dormant. On 24 November 2011 the property in Mollens was sold, with the proceeds of sale being transferred in the first instance to the local notaire in Sion before or through whom the sale was effected. It would, as I understand it, have been for the notaire to account to the bank for its secured indebtedness (and possibly to the state for any transaction tax) before remitting the proceeds to Mr Moore and his wife as vendors, and in the event it took a few more days before the net proceeds of sale, amounting to SwFr 771,441, were released and transferred to Mr Moore's UBS account on 29 November 2011. The sale came almost immediately to the attention of a lawyer retained by Mr McKew in the area, Maître Nicolas Pfister, who obtained confirmation by telephoning the local land registry.
9. On 12 December 2011 Maître Pfister filed a "Requête de Séquestre" with the local district court of Sierre. This recited the loans, referred to the Deed of 2 November 2010 and the letter of instruction from Mr Moore to UBS, described as an acknowledgment of debt, and recorded the sale of the Mollens chalet on 24 November 2011. It then requested the sequestration of the balance of the sale proceeds which were assumed in the request (though erroneously) to be still held by the notaire in his client account with UBS in Sierre.
10. The sequestration was requested on the basis of a statutory provision according such a right to an unpaid creditor over an alleged debtor's assets in Switzerland (assuming the debt's existence to be "vraisemblable") if the latter in order to avoid satisfaction of the claim intends to cause his assets to disappear (which includes hiding, removing or getting rid of the assets, or selling or charging them) or flees or prepares his flight. In support, it was stated that Mr Moore was English and retired and had no attachment to Switzerland, having recently sold the chalet. It was therefore, it was said, only a question of time before he left the country with a view to avoiding payment of his debt to Mr McKew. On 14 December 2011 the court refused the sequestration. Its essential reason for doing so was that Mr McKew had failed to establish as sufficiently likely that Mr Moore was intending to evade his obligations by removing or dealing with his assets.
11. The court also observed that sequestration could not be obtained against money in a notaire's client account, since that was not held to the order of the client^[1]. Whether in anticipation of that last objection or in response to it, Maître Pfister also made a separate application to the court for an order (in Mr McKew's action against Mr Moore) preventing the notaire from disposing of the proceeds of sale. The court rejected this on 19 December 2011, ruling that such a "mesure superprovisionelle" was not available to achieve the same result as the sequestration which the court had already refused.
12. Since (at latest) the sale of the chalet Mr Moore and his wife have moved to another property in Switzerland in Clarens. This was purchased before the sale of Mollens and without recourse to the proceeds of sale of the latter property. These were released by the notaire and transferred to Mr Moore's UBS account on 3 December 2011, where his share remains after payment of about half to meet some debts and ordinary living costs.
13. On 30 January 2012 Maître Pfister returned to the charge by obtaining the issue of a "commandement de payer" or "Order to Pay" by the Office de Poursuites. Such an order, in German a Zahlungsbefehl, initiates summary enforcement proceedings governed by the Federal Loi sur la Poursuite des Dettes et la Faillite abbreviated in the documents to LP -in cases where the claim is based on a written and signed acknowledgement of debt. The "commandement de payer" cited as the source of the obligation the loan between November 2005 and June 2008, the deed of guarantee and indemnity of 2 November 2010, and an acknowledgment of debt^[2] required payment of the €440,000 converted to SwFr 531,375 and two further sums in respect of costs.
14. If the recipient of a "commandement de payer" does not make a formal objection ("opposition") within a prescribed period the order becomes enforceable and capable of execution in the same way as an ordinary judgment. As the form itself states, the recipient can indicate his "opposition" at the time of service, and Mr Moore did so when the order was served on him on 1 February 2012, the form being marked with his "Opposition totale" by the process server. The effect of this "opposition" was, under Article 78 LP, to suspend the procedure, thus preventing the order becoming enforceable.
15. On 20 March 2012, following a request dated 27 February 2012 from Mr McKew, the Swiss judge issued a summons requiring Mr Moore's appearance at a hearing on 7 May 2012 to decide whether his "opposition" should be lifted by the court. This refers to the power of the court under Article 82 LP in a case where the claim is based on a signed acknowledgment of debt to lift the opposition provisionally ("mainlevée provisoire"), which it is required to do unless the debtor advances a credible case against the acknowledgment of debt. If the court does order a provisional lifting, the right of execution will under Article 83 LP become definitive unless within 20 days the alleged debtor commences an action in the same court asking the court to rule that the debt does not exist. Conversely, if the court does not lift the "opposition", the "commandement de payer" remains unenforceable unless and until the creditor seeks and obtains a judgment under Article 79 LP in an action establishing the existence of the debt and setting the "opposition" aside^[3].
16. On 21 February 2012 Mr McKew applied to the English court without notice for a world-wide Mareva injunction against Mr Moore, and obtained such an order from Mr Justice Maddison, though limited to €220,000. The only assets specifically identified in his application were the property in Mollens or the net proceeds of sale and monies in his UBS account in Sion, and it has not been suggested before me that Mr Moore has any (let alone any signficant) assets in England. It was also stressed in Mr McKew's evidence in support of his application that Mr Moore had gone to live in Switzerland since December 2010: Mr Moore would not only agree but put the date much earlier.
17. In his witness statement Mr McKew went on to state that (a) Mr Moore had now sold his sole residence in Switzerland (b) it was clear that Mr Moore intended to move from Switzerland in the immediate future and (c) he was unaware of Mr Moore's present whereabouts. By at least this time however his Swiss lawyer was aware of Mr Moore's new residence in Clarens, since it is included as the notification address in the "commandement de payer". In consequence, Mr McKew through Maître Pfister also served the English ex parte order on Mr Moore at his Clarens residence. It was, in addition, the address where Mr McKew requested the Swiss authorities to serve the English proceedings, issued the same day as that order.
18. Indeed, the existence of the "commandement de payer" was not disclosed to the English court at all. Instead, it was informed positively and categorically by Mr McKew that, as advised by Maître Pfister, there were no proceedings issued in Switzerland for the recovery of the debt.
19. Finally, after brief hearings before two other judges at which the freezing injunction was temporarily continued by consent, the matter came before me on 19 April 2012 on the adjourned application of Mr Moore to discharge it. Having reserved my judgment, I subsequently received further materials and submissions in writing addressed to the implications in the present case of two decisions of the European Court of Justice to which I had not been referred at the hearing before me. Events have also moved on to the extent that Mr McKew's application to the Swiss court to lift Mr Moore's "opposition" to the "commandement de payer" was heard before the judge on 7 May 2012, though her decision is still awaited and will, as I understand it, be subject to appeal.

Discussion and analysis

Jurisdictional basis

20. There was substantial disagreement between the parties as to the basis on which the court should approach the grant or refusal of an injunction in the circumstances of the present case.
21. As presented to Maddison J, and repeated before me, Mr McKew's position is that the injunction is sought as part of the English proceedings, in other words in support of a potential judgment in England. The claim form in those proceedings was issued the same day as the ex parte order, and subsequently served on Mr Moore in Switzerland, claiming payment of the €440,000 under the Deed of Guarantee. No permission was sought or obtained to serve the proceedings out of the jurisdiction. Since Switzerland is a party to the Lugano Convention, the need to do so was avoided by a certificate that "no proceedings are pending between the parties in the courts of any Convention territory".
22. Counsel for Mr Moore, by contrast, submits that any injunction can only be in aid of Swiss proceedings and therefore must be based on and governed by section 25 of the Civil Jurisdiction and Judgments Act, 1982 ("the 1982 Act"), which provides that

"(1) The High Court ... shall have power to grant interim relief where 

(a) proceedings have been or are to be commenced in a ... Lugano Contracting State ...

(2) On an application for any interim relief under subsection (1) the court may refuse to grant that relief if, in the opinion of the court, the fact that the court has no jurisdiction apart from this section in relation to the subject-matter of the proceedings in question makes it inexpedient for the court to grant it."

Sub-section (1) gives effect to inter alia Article 31 of the Lugano Convention, which provides that

"Application may be made to the courts of a State bound by this Convention for such provisional, including protective, measures as may be available under the law of that State, even if, under this Convention, the courts of another State bound by this Convention have jurisdiction as to the substance of the matter."

In Van Uden Maritime BV v Firma Deco-Line [1998] ECR 1-7901 the European Court of Justice ruled that the granting or refusal of provisional or protective measures on the basis of the identical provision of the Brussels Convention, now Article 31 of the Judgments Regulation, was "conditional on... the existence of a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought." Though, strictly, the decision is of only persuasive authority in relation to Article 31 of the Lugano Convention, I am in no doubt that the latter should be similarly interpreted and applied^[4].

23. Article 27 of the Lugano Convention provides that

"1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different States bound by this Convention, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court."

Article 30 provides that

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

1. at the time when the document instituting the proceedings is lodged with the court ..."

The position if the Swiss court was first-seised

24. Mr Moore argues that there are legal proceedings pending in Switzerland to recover the same money, that they were instituted by the order to pay on 30 January 2012, and that the Swiss court was therefore seised before the English court and Article 27 is engaged. Before ruling on that argument I shall first examine its potential consequences on the assumption that it is well-founded.
25. In most cases, there is a dispute between the parties as to whether the first-seised court had jurisdiction, with the decision on that point being entrusted by the Convention to that court itself, and a mandatory stay of the second proceedings being imposed in the meantime. Here there is, unusually, no such dispute: the parties agree that the Lugano Convention provides a clear ground of jurisdiction in Switzerland against Mr Moore based on habitual residence. In the light of that agreement, Swiss jurisdiction is in my view already "established" without the need for any decision by the Swiss court as the (on the present provisional hypothesis) first-seised court. Indeed, it is hard to envisage how -in the absence of any dispute on the point -it could come about. Accordingly, in my view Article 27(2) would already be satisfied, and the English court would be obliged to dismiss rather than merely stay its proceedings. The only basis then for the grant of any injunction would be Article 31(1) of the Convention together with section 25(1) of the 1982 Act and subject to their attendant limitations.
26. Even if that analysis were incorrect, and the proceedings of the English court were merely to be stayed, thus remaining formally in existence, it would in such circumstances in my view be appropriate for the English court to apply its inherent jurisdiction in the same way and subject to the same limitations as if Article 27(2) were fulfilled and therefore making the grant of any injunction subject to the requirements of section 25(2) and that identified in Van Uden.

Was the Swiss court first-seised ?

27. It is therefore necessary to determine whether Article 27 is in fact, as Mr Moore submits, engaged in the present case. This involves consideration of two interlinked questions. Are the Swiss proceedings "proceedings ... brought in the courts" to enforce the same claim as in the English action? And if so, were they commenced by the "commandement de Payer" so as to seise the Swiss court before the issue of the English proceedings?
28. Before seeking to answer these questions, I must first refer to two rulings of the ECJ considering the application of identical provisions in Brussels Convention, since superseded by the Judgments Regulation, to not dissimilar enforcement procedures in Germany and Italy.

(a) Klomps v Michel [1981] ECR 1593 centred on the German Mahnverfahren, a summary procedure for the recovery of debts and liquidated demands. It commences with a Zahlungsbefehl (order for payment) which the debtor may counter with a Widerspruch (objection) in default of which the order can be endorsed with an enforcement order, which can be executed against the debtor as if it were a default judgment. In Klomps v Michel the time-limit for objection was missed, the enforcement order was issued, and the creditor sought to enforce the latter as a judgment in the Netherlands under the Brussels Convention.

(b) Hengst Import BV v Campese [1995] ECR 1-2113 concerned the Italian procedimento d=ingiunzione. This is also commenced by a payment order, the decreto ingiuntivo. If opposed by the debtor within a prescribed period, the ordinary inter partes procedure is followed. Otherwise, as happened in Hengst, the court declares the order enforceable. Again, the creditor sought to enforce it as a judgment in the Netherlands under the Brussels Convention.

In each case, the question referred by the Dutch court -and answered positively by the ECJ -was whether the proceedings had been commenced by the order to pay.

29. Both decisions proceeded on the assumption that the enforcement order, even if as in Klomps -not issued by a judge, was -or was equivalent to -a judgment within the meaning of Article 25 of the Brussels Convention and therefore entitled to recognition and enforcement in other member States, and in Klomps the Advocate General so stated expressly. The corollary of this would be that the German and Italian procedures must be regarded as proceedings brought in a court, and that such is the case even where no decision is ever in fact made by the court.
30. In Germany and Italy -as appears from Klomps and Hengst -the initial order to pay is however issued by the court, while in Switzerland that is done by the Office des Poursuites. And in Germany and Italy lack of objection by the debtor will result in an enforcement order being made by the court or the payment order being declared enforceable by the court. By contrast in Switzerland in the absence of an "opposition" by the debtor there would no involvement of a court from beginning to end of the procedure. In that event it would be hard indeed to find that a court was ever seised of the claim, even if, had there been an "opposition", one or other party might have procured the involvement of the court in the procedure^[5].
31. In the present case, the Swiss court has of course been involved following the application of Mr McKew to the judge on 27 February 2012 to lift the "opposition", heard on 7 May 2012, and the procedure in my view then evolved into proceedings before a court^[6]. But I find it impossible to say that those proceedings were -as Article 30(1) of the Lugano Convention would require -"instituted" by the "commandement de payer", since that was issued by an administrative authority, not a court, and not lodged with the court. The seising cannot therefore be earlier than the date of the application to the judge for the "mainlevée provisoire", which postdated the seising of the English court by a few days, the claim form in the English action having been issued on 20 February 2012.
32. I conclude accordingly that Article 27 does not in the present case mandate or require either a dismissal or stay of the English action. It follows that the application for an injunction need not invoke section 25(1) of the 1982 or respect its limitations and those required by Article 31 of the Lugano Convention. It is on that basis therefore that I must consider whether to continue or discharge the present injunction.

Should an injunction be ordered?

33. As was common ground between the parties, before the court can grant a worldwide freezing injunction the claimant must establish that (a) he has a good arguable case (which was common ground here), (b) there are no or insufficient assets within the jurisdiction and there are assets elsewhere (which was also not in dispute), and (c) there is a real risk of disposal or secretion of those assets so as to frustrate the enforcement any judgment (on which the parties actively disagree). Beyond these threshold conditions the court must further have regard to all the circumstances of the case in deciding whether it is just and appropriate to make an order.
34. In this latter regard, the following features of the present case appear to me of particular significance:

(a) It is positively asserted by Mr McKew, and actively endorsed by Mr Moore, that Mr Moore is, and has been since at latest 2010, habitually resident in Switzerland, and no other current connection with England has been alleged, let alone established.

(b) It is not suggested that Mr Moore has any (or any significant) assets in England, and the only assets specifically identified in the application for the injunction are in Switzerland.

(c) Mr McKew applied to the Swiss courts for two orders to preserve assets to ensure that any judgment for the claim could be enforced. The first application sought sequestration of the proceeds of sale of the Mollens property; the second sought an injunction to prevent disposal of those monies. The latter would have been relief similar, if not identical, to an English freezing injunction. The former would, as I understand it, have added to that a priority over other creditors. As is clear from the judgment of the Swiss court on the first request, the preconditions were also similar to those required by an English court for a freezing injunction, and the Swiss court found that they had not been established.

35. It is clear (and not in dispute) that the Lugano Convention permits the English court to assume jurisdiction to determine the claim (on the basis of the non-exclusive jurisdiction clause in the Deed of Guarantee^[7]). And -as I have determined above -that jurisdiction was not nullified by any prior seising of the Swiss court, albeit that the priority failed by only a few days. There is however no territorial aspect to the English court's jurisdiction over Mr Moore: he is neither resident here nor does he have property here. In these circumstances it is in principle right that the Swiss courts alone should determine and enforce the measures concerning Mr Moore's Swiss assets, and in practice far preferable that it should be left to them to do so.
36. To that must be added that Mr McKew himself chose to go down that route. He has sought from the Swiss court, and been refused, protective measures no less powerful in their effect than an English freezing injunction and similar in their essential pre-conditions. This is not a case where the English court is asked to fill a gap in the powers of the foreign court where the assets are located and the defendant is resident. It is rather a request to the English court to second-guess the decision of that court. Considerations of comity dictate in my view that such a course should only be taken, if ever, in exceptional circumstances.
37. It was suggested by Mr McKew that the Swiss court would have reached a different decision on threat to the assets if it had been referred to two additional matters raised before the English court. That appears to me most improbable, given my own assessment of those matters.

(a) Mr McKew referred to settlement discussions at the end of 2011, claiming that there was a concluded agreement to settle the claim for €220,000 payable from the proceeds of sale, provided that Mr McKew received a written undertaking from the notaire. Such an undertaking was never provided, apparently following legal advice received by Mr Moore from his Swiss lawyer. I find little or no assistance in this to substantiate an allegation of threatened disposal or secretion of his assets.

(b) Mr McKew also alluded to suggested improprieties towards clients at Athena. The quality of the evidence in support was to my mind unimpressive, and its potential probative value as regards dissipation of Moore's assets in Switzerland at best tenuous.

Moreover, the proposition that the English court should revisit the decision of the Swiss judge because of Mr McKew's own failure to include allegedly relevant matters in its application to her is conspicuously lacking in merit or attraction.

38. In any event, having scrutinised the entirety of the evidence placed before me, it is my own independent view that Mr McKew has not established a real risk of dissipation or other threat to the assets.
39. Accordingly, the application fails at the threshold stage. But even if I had considered that Mr McKew had -and it could only have been by a narrow measure -satisfied the precondition as to threatened dissipation, the other circumstances and considerations to which I have referred above, taken as whole, would have led me nonetheless to refuse the injunction.
40. I am also concerned by Mr McKew's pursuit of the Swiss procedure even after he had sought and obtained an injunction from the English court based on the commencement of proceedings in England. It is in principle improper, and an abuse of English process, for a claimant to seek to enforce his claim by parallel proceedings elsewhere (see e.g. Australian Commercial Research and Development Ltd v McCaughan Merchant Bank Ltd [1989] 3 All ER 65^[8]). Even if I had otherwise been minded to grant an injunction, I would thought it appropriate to make any such order conditional on the withdrawal of the "commandement de payer".
41. That last consideration would of course not apply if Mr McKew had undertaken to discontinue the English action and instead based his application on section 25(1) of the 1982 Act and Article 27 of the Lugano Convention. However, even if so based^[9], his application would still have failed, because he has not established the required risk of dissipation or threat to the assets, and the application would have failed for this reason alone. In addition:

(a) There would have been an absence of the connecting link referred to in Van Uden between the subject-matter of the injunction and the territorial jurisdiction of the English court.

(b) In the light of the matters set out in paragraph 34 to 37 above it would have been "inexpedient" to grant the injunction having regard to the fact that the English court would have been (on this hypothesis) no longer exercising jurisdiction over the substantive claim.

Non-disclosure

42. In the alternative Mr Moore submitted that I should refuse to continue the injunction because Mr McKew had failed to disclose significant matters when making his original application on 20 February 2012.
43. I am in no doubt that in the case presented to Maddison J. there were at least two significant shortcomings.

(a) Though Mr McKew told the court that he was unaware of Mr Moore's whereabouts, by at latest 1 February 2012 his Swiss lawyer knew his address in Clarens.

(b) Mr McKew stated that there were no proceedings issued in Switzerland for the recovery of the debt. His Swiss lawyer had however commenced the summary enforcement procedure by procuring the issue of the "commandement de payer" on 30 January 2012. It might be argued that this technically fell outside the sentence in the witness statement because the procedure had not reached the judicial stage. But quite regardless of whether there was a positive misstatement, the court should have been informed squarely of the "commandement de payer" and the nature and potential consequences of the enforcement procedure which it had instituted^[10], and I find it all the harder to accept the failure to do so when I note that within no more than a week the Swiss lawyer had moved the procedure into the judicial stage by asking the court to lift the "opposition".

44. These were both matters with real potential to influence the decision of the court. Had it been necessary for my decision, I should therefore have required a full explanation from Mr McKew and his advisers and proper submissions as to why they should not have led me without more to refuse to continue the injunction. In the event, I do not however need to say anything more on this point.

Conclusion

45. For these reasons I discharge the freezing order made by Maddison J.

Note 1   This was however mentioned by only as Aa superabundance of reasons@. The court's decision would not therefore have been any different in result if it had been aware that in fact the net proceeds of sale had already been released and transferred to Mr Moore's UBS account on 29 November 2011 and the sequestration had been sought of that account.    [Back]

Note 2   According to Maître Pfister, this was contained in the letter of instruction from Mr Moore to UBS (though this does not appear from the commandement de payer itself.    [Back]

Note 3   In both cases the burden of proving the claim is on the creditor (see paragraph 5.3.1 of the decision of Swiss Federal Court referred to in footnote 6 below).    [Back]

Note 4   Though not decisive, the desirability of a uniform interpretation of the Lugano Convention and the EU regulation is stressed in Protocol no. 2 of the Convention.    [Back]

Note 5   The differences between the procedures may be thought entirely formal and institutional. It may well be that the acts of the court officials in Germany and Italy are, viewed realistically, no less Aadministrative@ than those of the employees of the Office de Poursuites in Switzerland, and that the latter are in practice just as independent in their actions as the former. The difference is nonetheless critical in the context of the Convention.    [Back]

Note 6   According to Maître Pfister even now these would not in Swiss eyes be considered as legal proceedings. I have however to apply the autonomous concept in Article 27 of the Lugano Convention. I also observe that the Swiss Federal Court, in a decision at BGE 130 III 285 at para. 5.2, notified to me since I reached the view set out in the text, confirms that, unlike the Acommandement de payer@ the lifting of the Aopposition@ is a judicial act and subject to the Lugano Convention.    [Back]

Note 7   And, no doubt, the place of performance of the obligation.    [Back]

Note 8   Even if the remedy proposed in that case, that the claimant required to elect for one jurisdiction and discontinue the proceedings in the other, is not available where the Lugano Convention applies, the problem being dealt with instead by Article 27, the underlying abuse is the same.    [Back]

Note 9   In fact, counsel for Mr McKew specifically disavowed reliance on such a basis.    [Back]

Note 10   The position might have assumed a different aspect if it had been decided, in face of theAopposition@, not to pursue the procedure any further. This is however most unlikely, given that within a week application was made to the Swiss court to lift theAopposition@. Moreover, it would still have been appropriate to explain this to the English court, and to make clear that no attempt would be made to continue the procedure.    [Back]