Which court was first seised?

WPP Holdings Italy SRL and others v Benatti CA TLR 16 April

Where two parties issued proceedings against each other in different European Union jurisdictions, the court first seised of the action was the one where the document instituting the proceedings was first lodged with the court or was first received by the authority responsible for service. The European Judgments Regulations reflect the existence of different procedures among different Member States. Article 30(1) of Council Regulation (EC) No 44/2001 applies to proceedings in England and Wales because they are instituted by the court issuing a claim form, which the claimant has subsequently to serve on the defendant. Article 30(2) applies to proceedings in Italy where the writ first has to be lodged with an authority known as Unep, with a request for it to be served on the defendant. After the defendant has signed an advice of receipt, the claimant’s lawyers lodge with the court the writ and advice of receipt. A court was seen to be seised at the time when the document instituting the proceedings was lodged with the court under article 30(1) ‘provided that the plaintiff has not subsequently failed to take the steps that he was required to take to have service effected on the defendant’. That proviso requires only that the claimant should not subsequently have failed to take the steps he was required to take. It happens sometimes that when the claimant issues a claim form, he does not know the defendant’s address, possibly because the defendant is being elusive. It would be unjust if a defendant were able, by preventing service, to prevent the court which had issued the claim from being seised of the action. Likewise, all that article 30(2) required of the claimant was that after lodging the document with the authority responsible for service, he should not have failed to take the steps he was required to take in order to lodge the document with the court. Although the document had to be capable of service, invalid service did not prevent the court from being first seised and therefore having jurisdiction to determine the claim. There was no injustice to a defendant in adopting that construction of article 30(2) which accorded with its natural meaning. Article 30 was purely concerned with seisin for the purposes of the Regulations. Accordingly, the Italian court was first seised of the action.