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.
Labels: Brussels I Regulation