PIL instrument(s)

Case number and/or case name

Arbuthnot Latham & Co Ltd v M3 Marine Ltd and another [2013] EWHC 1019 (Comm)

Details of the court

England and Wales, First Instance

Articles referred to by the court

Date of the judgement

25 April 2013

Appeal history

CJEU's case law cited by the court

Summary

The dispute arose out of a loan agreement which included an English non-exclusive jurisdiction clause. The loan, given by the claimant, was used to finance the purchase of a yacht by the defendant. On 27th September 2012, the claimant arrested the defendant’s yacht in France. The English proceedings were initiated on 26th October 2012. In England, the claimant was suing for recovery of money owed to him, and/or for damages. The value of the claim was in excess of €3.5 million. Also, in October 2012, the French proceedings were commenced by the defendant in the English proceedings. In France, he was seeking a non-liability declaration. In England, the defendant challenged the jurisdiction of the English courts, making an application for a stay on the ground of Articles 27 and 28 of Brussels. In this context, Mr Justice Hamblen noted that “[t]he issue between the parties is whether the French court was seised on 24 October 2012 (when the FPS received the faxed French Writ) or 30 October 2012 (when the FPS received the posted French Writ). In short, the issue is whether it was necessary for the FPS to have received the French Writ by fax and post prior to those documents being deemed received for the purpose of art.30(2) of the Brussels Regulation , or whether receipt by fax alone was sufficient.” [13] After interpreting the Service Regulation, Mr Justice Hamblen held that the French court was first seised, and ordered a stay of the English proceedings. It was held that: “35 […] (ii) There is no good reason for requiring transmission by both fax and post. It was suggested that a fax would provide advance notice of the posted transmission. That may be an administrative convenience but it is difficult to see why it should be a mandatory, additional requirement of receipt, particularly as the regime applies to extrajudicial as well as judicial documents. It is to be noted that no other country imposes a double requirement for receipt, still less a requirement additional to receipt by post. (iii) A double receipt requirement may in fact undermine certainty as it means there is a greater possibility for something to go wrong in the process. […]” [35]