Thursday, 31 July 2014

Objection to service of process and appearance for the purpose of challenging international jurisdiction

In a 2013 ruling, the Supreme Court clarified that the appearance of a party, claiming that no proper service has taken place, and that the court lacks international jurisdiction, is not sufficient reason for a court to dismiss the claim, if no ‘procedural harm’ has been proven by the respondent [Areios Pagos 1521/2013, Chronicles of Private Law 2014, pp. 284-287]. 


THE FACTS: The appellant is a Greek citizen who owns a number of shipowning companies under Liberian flag. However, the actual place of business is Piraeus, Greece. The appellee is a company with its seat in Valletta, Malta. The latter provided the appellant’s companies with fuel and lubricants. Upon failure of the companies to pay the agreed amount, the Maltese company filed a claim for damages before the Piraeus 1st Instance Court against three of the appellant’s companies and the appellant personally. The court allowed the claim, and dismissed the allegations of the owner, namely first, that he was not properly served in Piraeus, because he’s a resident of London, and second, that he had no involvement whatsoever in the contracts signed between the claimant/appellee and the shipping companies. The Piraeus CoA confirmed the 1st Instance decision. The appellant filed an appeal on a point of law, asking the Supreme Court to quash the CoA judgment on the grounds he had already put forward in the previous hearings. 

THE RULING: The Supreme Court dismissed the appeal on the following grounds:
a.   The appellant’s appearance in the proceedings before the 1st and 2nd Instance courts is demonstrative of the fact that his right to be heard had not been infringed. Even if service is deemed to have been improper, it didn’t affect his right to defend himself before Greek courts, which he actually exercised unhindered.
b.   Given the above, a ‘procedural harm’ cannot be established in the judgment of the instance courts to proceed with the hearing, and examine their international jurisdiction. It was actually the appellant who challenged the jurisdiction of the Piraeus courts, because of his asserted residence in London.
c. The instance courts founded their international jurisdiction on Art. 6.1 Brussels I Regulation. Since it has been proven that the actual place of business of the shipping companies was Piraeus, Greece, the main jurisdiction base (i.e. Art. 2.1 Brussels I Regulation) was confirmed; hence, in light of the connecting factors evidenced between the claims against the companies and the appellant, a common hearing under the conditions of Art. 6.1 Brussels I Regulation was fair and reasonable.

COMMENTS: Entering an appearance for the sole purpose of contesting the court’s jurisdiction is not equivalent to a tacit choice of court agreement pursuant to Art. 24 II Brussels I Reg. However, if the court examines the objection, and considers that it has jurisdiction to hear the case, the party cannot revert to service of process issues, even if the way it was effectuated was not impeccable. The litigant was not deprived of his right to defend himself, because he was given the chance to present his case, and file objections and pleadings both before the 1st and 2nd Instance court. 

An alternative scenario could have been the following: The appellant could have refrained from an appearance, leaving the court to decide on the appropriateness of service under Art. 4 Greek Code of Civil Procedure, Art. 26.2 Brussels I Reg., and Art. 19 EC-Service Regulation. His appearance gave the court the right to invoke Art. 159.3 Greek Code of Civil Procedure, which stipulates that the violation of a provision regulating the procedure and especially the form of a procedural act leads to procedural nullity, pronounced by the court, if the judge considers that the violation in question caused harm to the party, not able to be remedied otherwise. In consonance with the instance courts, the Supreme Court was satisfied that the appellant’s unhindered appearance healed the supposed violation of law on service of process.



Post a Comment

Subscribe to Post Comments [Atom]

<< Home