The High Court has decided that receipt by fax at the Foreign Process Section (FPS) of the English court of proceedings commenced in another member state is sufficient to seise the foreign court. The proceedings do not also have to be sent by post. If they are sent by both fax and post the relevant date for the purposes of deciding when the foreign court is seised will be the date of receipt of the fax, not the later date when the documents arrive by post: Arbuthnot Latham & Co Ltd v M3 Marine Ltd & Anor [2013] EWHC 1019 (Comm).

This decision highlights an important practical point where there is a possibility of forum shopping between EU member state courts. Parties commencing proceedings which must be served in England before the foreign court is deemed to be seised should send the proceedings by fax to the FPS as soon as possible.

Background

The case concerned whether the English court or the French court was first seised of proceedings and therefore which court’s proceedings should have primacy for the purpose of article 27 of the Brussels Regulation (No 44/2001/EC). Under article 27, courts other than the court first seised must stay their proceedings if they involve the same cause of action.

The French proceedings were commenced on 24 October 2012 and sent by fax and post the same day to the FPS for service. The fax arrived that day; the postal copy arrived on 30 October. On 26 October 2012 proceedings were issued in England.

Article 30 of the Brussels Regulation determines when a court is seised for the purposes of article 27 (and 28). It provides: “… a court shall be deemed to be seised:

  1. At the time when the document instituting the proceedings or an equivalent document is lodged with the court …, or
  2. If the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service….”

Article 30(1) applies to proceedings in England as they are instituted by the court issuing a claim form. Article 30(2) applies to proceedings commenced in France because the writ has to be served before it is lodged with the French court.

Service of EU proceedings takes place pursuant to the Service Regulation (No 193/2007/EC). The Regulation sets out the procedure for service, including the requirement for a receiving agency to be appointed in each country and for a manual containing information relating to those agencies to be published on the European Commission internet site.

The section of the manual dealing with the means of receipt of documents available in the UK provides: “Documents will be transmitted by fax and post.”

Decision

The question before the court was therefore whether this phrase should be interpreted as requiring documents to be sent both by fax and post or whether either would be sufficient.

The judge accepted that both interpretations were available as a matter of language, but decided receipt by either method sufficed. In reaching this decision he took into account a number of factors, including practice elsewhere in the EU, the fact that there was no good reason for requiring transmission by both fax and post, and that allowing receipt by fax promotes speed and efficiency.

As the FPS, which was the authority responsible for service, had received the fax before the English proceedings were issued, the French court was the court first seised and the English court proceedings were stayed.