Lloyd's Maritime and Commercial Law Quarterly
HOW SOON IS AN ENGLISH COURT SEISED (REVISITED)?
The Sargasso
Readers will recall that, a couple of years ago, a question arose concerning the operation of the rule in the Brussels Convention1 that the court seised first had jurisdiction to hear a claim, but a court seised of it second was required to decline jurisdiction in favour of the court first seised.2 In The Duke of Yare,3 the Court of Appeal was called upon to decide whether an English court was seised when the writ was issued, or when it was served. The question was to be answered by reference to English domestic law alone,4 but the Court of Appeal considered that English law should not stand out against the corresponding provisions of foreign law
1. On Jurisdiction and Judgments in Civil and Commercial Matters (“the Convention”). It appeared as Sched. 1 to the Civil Jurisdiction and Judgments Act 1982 (“the 1982 Act”) and has been amended from time to time. The amendments are not material to the present Comment.
2. Art. 21. It should be noted that the question whether any exception to this rule is made when the court seised second has jurisdiction under another Convention, such as that on the Arrest of Sea-going Ships, is still before the Court of Justice in case C–406/92 The Tatry. Judgment is expected towards the end of 1994.
3. Dresser (UK) Ltd. v. Falcongate Freight Management Ltd. (The Duke of Yare) [1992] 1 Q.B. 503; noted [1992] LMCLQ 150.
4. Matters of procedure of this sort being unharmonized by the Convention: Zelger v. Salinitri (No. 2) [1984] ECR 2397.
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