Jonathan Guy Anthony Phillips & Ors v (1) Robin James Symes (2) Robin Symes Ltd (2001)
The English court declined jurisdiction in favour of the Greek courts who were first seised of proceedings in relation to the administration of an estate, except in relation to claims concerned with the constitution, nullity or dissolution of a partnership involving the deceased and which was seated in England.
Application by the defendants ('S' and 'RSL') for an order that the court decline jurisdiction on the action or stay all proceedings in accordance with Art.21 or Art.22 Brussels Convention. The first and second claimants were the administrators of the estate of the brother ('C') of the third claimant ('D'). S, a dealer in and collector of works of art and antiquities, owned and controlled RSL, which was engaged in the same business. From the late 1960s until C's death in 1999, he and S lived together in London in a property which came to house three separate collections of furniture and antiquities. The administrators contended that all the business carried on during the period of C's relationship with S was that of a partnership or joint enterprise and that the profits of that business and the shares in RSL were owned by C and S equally. D, who was one of C's two heirs under Greek law, argued that the collections were acquired by C for himself and/or D personally. On 23 February 2001 the claimants issued these proceedings. On the same day: (i) S brought proceedings in Greece for negative declaratory relief in respect of the matters the subject of these proceedings; (ii) served those proceedings personally on D in Greece; and (iii) served the proceedings on the administrators in accordance with Greek law concerning service on foreign defendants by delivering the relevant documents to the Greek public prosecutor's office. On 27 February the administrators were personally served in England with the Greek proceedings. On the same day the administrators obtained without notice interim injunctive relief against S and RSL. The claim form and the injunction in the English proceedings were served on S and RSL the next day.
(1) The Greek proceedings were not validly served on the administrators for the purposes of Art.21 of the Convention until 27 February. (2) The Greek court was seised of the Greek proceedings before the English court was seised of this action, which had only been served the following day. It followed that prima facie S and RSL were entitled to the relief sought. (3) However, the administrators were entitled to the exception contained in Art.16(2) of the Convention because the court was satisfied that their claims had as their principal subject matter "the validity of the constitution, the nullity or the dissolution" of a partnership which had its seat in England. There was no basis for distinguishing a partnership that was "formally" constituted from one which was not. (4) The interim injunctive relief against the defendants would be continued in modified form by way of "protective measures" under Art.24 of the Convention.
Proceedings brought by D stayed. Defendants' application dismissed in relation to the proceedings by the administrators.