On 26 October 2012, Arbuthnot Latham & Co Ltd (the claimant) issued proceedings before the English court making claims against the defendants in debt and/or damages in the sum of EUR 3,627,348.99 plus interest. The claim against M3 Marine Ltd (the first defendant) was for sums allegedly owed under a loan facility agreement and an overdraft facility that had financed the refitting of the first defendant’s luxury yacht, Mirabella III (the yacht). The claim against Alan Lubin (the second defendant) was for sums allegedly owed under guarantees that he provided to secure the first defendant’s obligations under the loan facility agreement and overdraft facility. The claim was brought in England pursuant to the non-exclusive jurisdiction agreements in the contracts. However the defendants contended the English proceedings should be stayed pursuant to art 27 and/or 28 of the Judgments Regulations because the French court was the first court seised.

The claimant had arrested the yacht on 27 September 2012 in Port Vendres in the South of France. This was on the basis that the claimant had a maritime claim within the scope of art 1.1.q of the Arrest Convention 1952, namely the loan agreement and overdraft facility which were secured by yacht mortgages. On 24 October 2012, while the yacht was still under arrest, the defendants’ lawyers issued a writ of summons before the French court claiming declarations of non-liability under the contracts; damages for losses sustained as a result of the claimant’s allegedly negligent and wrongful conduct in calling in the loan, with the loss of the yacht’s papers; and an injunction preventing the sale of the yacht. The defendants contended the French court had jurisdiction pursuant to art 7.1.f of the Arrest Convention 1952 which gives jurisdiction to the courts of the country where a vessel is arrested to decide on the merits of claims secured by mortgages over the arrested vessel. The writ was faxed and received by the Foreign Process Section of the Royal Courts of Justice (FPS) on the 24 October 2012. The writ was also sent by post on 24 October 2012 and received by the FPS on 30 October 2012. The issue between the parties was whether the French court was seised on 24 October 2012 or 30 October 2012. In other words whether art 30.2 of the Brussels Regulation required the FPS to have received the writ by fax and post before the documents were deemed to have been received or whether receipt by fax alone was sufficient.

Held: The French Court was the court first seised and the stay was granted. Receipt by fax or post sufficed. If there was an intention to impose a double requirement of transmission by both fax and post, one would expect that to be clearly set out. There is no good reason to require transmission by fax and post. It may be an administrative convenience but it is difficult to see why there should be a mandatory, additional requirement of receipt particularly as the regime applies to extra judicial documents as well as judicial documents. A double receipt requirement may undermine certainty as there is greater potential for something to go wrong in the process. Faxes are both reliable and legible and have the advantage of providing a timed receipt. Speed and efficiency are important aims of the Service Regulations so allowing receipt by fax promotes those aims.