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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Debt Collection London Ltd & Anor v SK Slavia Praha- Fotbal AS [2009] EWHC 2726 (QB) (03 November 2009) URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/2726.html Cite as: [2009] 2 CLC 688, [2010] ILPr 7, [2009] EWHC 2726 (QB), [2010] 1 All ER (Comm) 902 |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
(1) DEBT COLLECTION LONDON LIMITED (2) ENIC GROUP |
Claimant |
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- and - |
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SK SLAVIA PRAHA - FOTBAL AS |
Defendant |
____________________
Mr Thomas Keith (instructed by Eversheds LLP) for the Defendant
Hearing dates: 23 and 26 October 2009
____________________
Crown Copyright ©
Mr Justice Tugendhat :
BACKGROUND
THE ISSUES ON THE APPLICATIONS
i) When was SSPF properly served with these proceedings, so that time began to run for filing an Acknowledgment of Service? The alternative dates are: 29 June (personal service), 30 June (service by post) or 4 August (service through the Czech court). The question is relevant because of the agreement that the Acknowledgment of Service filed on 20 July was defective. If SSPF was not validly served before 4 August, then the Acknowledgement of Service on 19 August was within the time specified by the Rules.ii) If SSPF was validly served on 29 or 30 June, should the court remedy the defects in the original Acknowledgement of Service under CPR 3.10, or extend time to 19 August under CPR 3.1 and/or 3.9?
iii) Should the court decline jurisdiction over, or order a stay of all or part of these proceedings, under Art 27 of the JR, on the footing that the Czech court was seised by the proceedings commenced by SSPF on 15 April, and the proceedings in the two states involve the same cause of action?
iv) In the alternative to (iii), should the court decline jurisdiction over, or order a stay of all or part of these proceedings, under Art 28 of the JR, on the footing that the Czech court was seised by the proceedings commenced by SSPF on 15 April, and the actions in the two states are related?
WAS SSPF PROPERLY SERVED WITH PROCEEDINGS ON 29 OR 30 JUNE?
"Article 20
Relationship with agreements or arrangements to which Member States are party
1. This Regulation shall, in relation to matters to which it applies, prevail over other provisions contained in bilateral or multilateral agreements or arrangements concluded by the Member States, and in particular Article IV of the Protocol to the Brussels Convention of 1968 and the Hague Convention of 15 November 1965.
2. This Regulation shall not preclude individual Member States from maintaining or concluding agreements or arrangements to expedite further or simplify the transmission of documents, provided that they are compatible with this Regulation.
3. Member States shall send to the Commission:
(a) a copy of the agreements or arrangements referred to in paragraph 2 concluded between the Member States as well as drafts of such agreements or arrangements which they intend to adopt; and
(b) any denunciation of, or amendments to, these agreements or arrangements.
"I have succeeded in acquiring a written statement from the Ministry of Justice of the Czech Republic dated 13 October 2009 which supports my legal analysis and conclusions … Although the Czech Ministry of Justice uses in its response to my letter dated 2 October 2009 a reference to the original Regulation 1348/2000, it is obviously an error in not affecting the unambiguous position of the Czech Republic in relation to inapplicability of Part II of the Convention".
"…. The aforementioned Agreement signed on 11 November 1924 is not included in the list of bilateral international treaties that must be communicated by the Member States to the Commission pursuant to Art 20(3) of the Regulation, should they be applicable.
Am I thus right to consider that
- Regulation No 1393/2007 precludes the application of the Agreement and that direct service of document by the Czech attorney of an English plaintiff (either in person or by mail) is not possible in the territory of the Czech Republic (without due court authorization, also after the last amendment to the Code of Civil Procedure with effect from 1 July 2009?
- The action was duly served only when the defendant received the action through the competent Czech court in accordance with Regulation No 1393/2007 of 13 November 2007?"
"It is only possible to serve judicial documents from Great Britain to the Czech Republic and reversely according to Council Regulation (EC) No 1348/2000, on service in the Member States of judicial and extrajudicial documents in civil or commercial matters. The Convention on legal aid in civil matters (decree no 70/1926 Coll.) can not be applied, because the treaty was not notified by the Czech Republic in the list of treaties which the Czech Republic wishes to be henceforth legally bound to in relation to the Member States (see Article 20(3) of the Regulation).
The Czech Republic stated in its Notification under the Regulation that it is not possible to serve judicial documents on the territory of the Czech Republic directly, this means that Article 15(1) can not be applied in the Czech Republic. It is possible to proceed only according to the Article 14 of the Regulation and send the judicial documents directly by post service".
WAS THE CZECH COURT SEISED OF THE PROCEEDINGS ON 15 APRIL?
"Article 27
1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, 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 28
1. Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings.
2. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.
3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
Article 30
For the purposes of this Section, 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, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant, 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, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court.
"has fulfilled its obligations under the [DFA] in the full amount and that [SSPF] is no longer obliged to provide any fulfilment to [DCL] under the Agreement".
"As I understand it well, we signed our 'Discounted ….'; you sent us 900 th GBP in several payments and we should repay 1 mil. GBP. The deadline was 31.12.06. … as we didn't repay it at 31.1.2006 we should calculate the interest from this date (under the same conditions like other loan contracts). So I put it into the sheet. Correct me if it is mistake".
"Section 4
Creation of a duty to pay a fee
(1) If a fee for proceedings is involved a duty to pay a fee is created (a) by filing an action or other petition for commencement of proceedings …
Section 7
Maturity of Fees
(1) A fee becomes payable by creation of fee duty …
Section 8
Payment of fees
… (3) The fees are paid onto an account opened with the Czech National Bank for the court … (hereinafter the 'Court's Account').
(4) The fees not exceeding CZK 5,000.00 may be paid by fee stamps
Section 9
Consequences of Non-payment of fees
(1) If a fee for proceedings which became payable by filing a petition for commencement of proceedings, … is not paid the court shall call the payer to payment thereof within a period of time stipulated by the court; after a lapse of such period without effect the court will stay the proceedings"
Annex
FEE TARIFFS
Item 2
For petition for commencement of a civil judicial proceedings, the subject of which is not a monetary performance … (c) in other cases, unless further stipulated otherwise CZK 1,000"
"Unless the proceedings are objectively exempt from court fees …, the court shall not serve the motion to commence proceedings on the other parties to the proceedings (provisions of Sec. 79(2) of Civil Procedure Code) before the fee has been paid by the petitioner …"
"Pursuant to Section 9(1) … if the court fee is not paid on the date when the action is filed the court will request the claimant to pay the court fee within a period stipulated by the court. Pursuant to Section 9(7) … the court will then cancel this resolution if the court fee is paid within the statutory time period to file an appeal against this resolution".
"by resolution dated 23 June 2009 requested [SSPF] to specify and amend the action filed on 15 June 2009. This court resolution was delivered to [SSPF] in 30 June 2009 and [SSPF] duly responded within the prescribed time limit of 15 July 2009. The court request to pay the court fee dated 17 July was delivered to [SSPF] on 28 July 2009 and duly paid by [SSPF] on 6 August 2009"
"under Czech law the procedural and material effects of the proceedings come into force on the date on which the action is filed and remain in force as long as the claimant continues the commenced proceedings. The payment of any fee is irrelevant to that date".
OTHER ISSUES
"are … designed to preclude, in so far as is possible and from the outset, the possibility of a situation arising … that is to say the non-recognition of a judgment on account of its irreconcilability with a judgment given in a dispute between the same parties in the State in which recognition is sought"
WHAT ORDER SHOULD BE MADE?
CONCLUSION