Category Archives: Jurisdiction

Adams -v- Cape Industries plc; CA 2 Jan 1990

References: [1990] Ch 433, [1991] 1 All ER 929, [1990] 2 WLR 657, [1990] BCLC 479, [1990] BCC 786
Coram: Slade, Mustill and Ralph Gibson LJJ
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in Texas in a suit by victims of asbestos. The defendant took no part in the United States proceedings and default judgments were entered. Actions on the judgment in England failed.
Held: The court declined to pierce the veil of incorporation. It was a legitimate use of the corporate form to use a subsidiary to insulate the remainder of the group from tort liability. There was no evidence to justify a finding of agency or facade.
There is an exception to the general rule, that steps which would not have been regarded by the domestic law of the foreign court as a submission to the jurisdiction ought not to be so regarded here, notwithstanding that if they had been steps taken in an English Court they might have constituted a submission to jurisdiction.
Slade LJ said: ‘Two points at least are clear. First, at common law in this country foreign judgments are enforced, if at all, not through considerations of comity but upon the basis of the principle explained thus by Parke B. in Williams v Jones
Secondly, however, in deciding whether the foreign court was one of competent jurisdiction, our courts will apply not the law of the foreign court itself but our own rules of private international law . .’ and ‘First, in determining the jurisdiction of the foreign court in such cases, our court is directing its mind to the competence or otherwise of the foreign court ‘to summon the defendant before it and to decide such matters as it has decided:’ see Pemberton v Hughes [1899] 1 Ch. 781, 790 per Lindley M.R. Secondly, in the absence of any form of submission to the foreign court, such competence depends on the physical presence of the defendant in the country concerned at the time of suit.
. . we would, on the basis of the authorities referred to above, regard the source of the territorial jurisdiction of the court of a foreign country to summon a defendant to appear before it as being his obligation for the time being to abide by its laws and accept the jurisdiction of its courts while present in its territory. So long as he remains physically present in that country, he has the benefit of its laws, and must take the rough with the smooth, by accepting his amenability to the process of its courts.’
This case cites:

  • Cited – Pemberton -v- Hughes CA ([1899] 1 Ch 781)
    Lindley MR said: ‘There is no doubt that the courts of this country will not enforce the decisions of foreign courts which have no jurisdiction in the sense explained above – i.e., over the subject matter or over the persons brought before them . . . .
  • Cited – Williams -v- Jones ([1845] EngR 394, Commonlii, (1845) 13 M & W 628, (1845) 153 ER 262)
    An action of debt lies upon a judgment of a county court. And the declaration need not state that the defendant resided within the jurisdiction of the county court, or was liable to be summoned to that court for the debt ; it is enough to state that . .
  • Applied – Woolfson -v- Strathclyde Regional Council HL (Bailii, [1978] UKHL 5, [1979] JPL 169, (1978) 248 EG 777, 1978 SC (HL) 90, 1978 SLT 159, (1979) 38 P & CR 521)
    The House considered the compensation payable on the compulsory purchase of land occupied by the appellant, but held under a company name.
    Held: The House declined to allow the principal shareholder of a company to recover compensation for the . .
  • Appeal from – Adams -v- Cape Industries plc ChD ([1990] 1 Ch 433)
    The piercing of the veil argument was used to attempt to bring an English public company, which was the parent company of a group which included subsidiaries in the United States, within the jurisdiction of the courts of the United States. Where a . .

This case is cited by:

  • Applied – Rakusens Ltd -v- Baser Ambalaj Plastik Sanayi Ticaret AS CA (Gazette 01-Nov-01, Times 09-Nov-01, [2001] EWCA Civ 1820, Bailii)
    A company had sought and obtained leave to serve proceedings on a foreign based company, by serving documents on a local agent. The local agent was an independent contractor, who received and transmitted orders to the company, but who, themselves, . .
  • Cited – Motorola Credit Corporation -v- Uzan and others (No 2) CA (Bailii, [2003] EWCA Civ 752, Times 19-Jun-03, Gazette 28-Aug-03, [2004] 1 WLR 113)
    World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
  • Cited – Harding -v- Wealands HL (Times 06-Jul-06, Bailii, [2006] UKHL 32, [2006] 3 WLR 83, [2006] 2 CLC 193, [2006] RTR 35, [2006] 4 All ER 1)
    The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
    Held: . .
  • Cited – Rubin and Another -v- Eurofinance Sa and Others SC (Bailii, [2012] UKSC 46, [2012] 3 WLR 1019, [2012] 2 Lloyd’s Rep 615, [2012] WLR(D) 285, [2012] 2 BCLC 682, Bailii Summary, SC Summary, SC, UKSC 2010/0184)
    The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
  • Cited – Rubin and Another (Joint Receivers and Managers of The Consumers Trust) -v- Eurofinance Sa and Others CA (Bailii, [2010] EWCA Civ 895, [2011] Bus LR 84, [2011] 2 WLR 121, [2011] 1 Ch 133)
    . .
  • Cited – Prest -v- Petrodel Resources Ltd and Others SC (Bailii, [2013] UKSC 34, [2013] WLR(D) 237, [2013] 3 FCR 210, [2013] 4 All ER 673, [2013] Fam Law 953, [2013] 2 FLR 732, [2013] BCC 571, [2013] 2 AC 415, [2013] WTLR 1249, [2013] 3 WLR 1, Bailii Summary, UKSC 2013/0004, SC Summary, SC)
    In the course of ancillary relief proceedings in a divorce questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .

Adams -v- Cape Industries plc; CA 2 Jan 1990

References: [1990] Ch 433, [1991] 1 All ER 929, [1990] 2 WLR 657, [1990] BCLC 479, [1990] BCC 786
Coram: Slade, Mustill and Ralph Gibson LJJ
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in Texas in a suit by victims of asbestos. The defendant took no part in the United States proceedings and default judgments were entered. Actions on the judgment in England failed.
Held: The court declined to pierce the veil of incorporation. It was a legitimate use of the corporate form to use a subsidiary to insulate the remainder of the group from tort liability. There was no evidence to justify a finding of agency or facade.
There is an exception to the general rule, that steps which would not have been regarded by the domestic law of the foreign court as a submission to the jurisdiction ought not to be so regarded here, notwithstanding that if they had been steps taken in an English Court they might have constituted a submission to jurisdiction.
Slade LJ said: ‘Two points at least are clear. First, at common law in this country foreign judgments are enforced, if at all, not through considerations of comity but upon the basis of the principle explained thus by Parke B. in Williams v Jones
Secondly, however, in deciding whether the foreign court was one of competent jurisdiction, our courts will apply not the law of the foreign court itself but our own rules of private international law . .’ and ‘First, in determining the jurisdiction of the foreign court in such cases, our court is directing its mind to the competence or otherwise of the foreign court ‘to summon the defendant before it and to decide such matters as it has decided:’ see Pemberton v Hughes [1899] 1 Ch. 781, 790 per Lindley M.R. Secondly, in the absence of any form of submission to the foreign court, such competence depends on the physical presence of the defendant in the country concerned at the time of suit.
. . we would, on the basis of the authorities referred to above, regard the source of the territorial jurisdiction of the court of a foreign country to summon a defendant to appear before it as being his obligation for the time being to abide by its laws and accept the jurisdiction of its courts while present in its territory. So long as he remains physically present in that country, he has the benefit of its laws, and must take the rough with the smooth, by accepting his amenability to the process of its courts.’
This case cites:

  • Cited – Pemberton -v- Hughes CA ([1899] 1 Ch 781)
    Lindley MR said: ‘There is no doubt that the courts of this country will not enforce the decisions of foreign courts which have no jurisdiction in the sense explained above – i.e., over the subject matter or over the persons brought before them . . . .
  • Cited – Williams -v- Jones ([1845] EngR 394, Commonlii, (1845) 13 M & W 628, (1845) 153 ER 262)
    An action of debt lies upon a judgment of a county court. And the declaration need not state that the defendant resided within the jurisdiction of the county court, or was liable to be summoned to that court for the debt ; it is enough to state that . .
  • Applied – Woolfson -v- Strathclyde Regional Council HL (Bailii, [1978] UKHL 5, [1979] JPL 169, (1978) 248 EG 777, 1978 SC (HL) 90, 1978 SLT 159, (1979) 38 P & CR 521)
    The House considered the compensation payable on the compulsory purchase of land occupied by the appellant, but held under a company name.
    Held: The House declined to allow the principal shareholder of a company to recover compensation for the . .
  • Appeal from – Adams -v- Cape Industries plc ChD ([1990] 1 Ch 433)
    The piercing of the veil argument was used to attempt to bring an English public company, which was the parent company of a group which included subsidiaries in the United States, within the jurisdiction of the courts of the United States. Where a . .

This case is cited by:

  • Applied – Rakusens Ltd -v- Baser Ambalaj Plastik Sanayi Ticaret AS CA (Gazette 01-Nov-01, Times 09-Nov-01, [2001] EWCA Civ 1820, Bailii)
    A company had sought and obtained leave to serve proceedings on a foreign based company, by serving documents on a local agent. The local agent was an independent contractor, who received and transmitted orders to the company, but who, themselves, . .
  • Cited – Motorola Credit Corporation -v- Uzan and others (No 2) CA (Bailii, [2003] EWCA Civ 752, Times 19-Jun-03, Gazette 28-Aug-03, [2004] 1 WLR 113)
    World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
  • Cited – Harding -v- Wealands HL (Times 06-Jul-06, Bailii, [2006] UKHL 32, [2006] 3 WLR 83, [2006] 2 CLC 193, [2006] RTR 35, [2006] 4 All ER 1)
    The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
    Held: . .
  • Cited – Rubin and Another -v- Eurofinance Sa and Others SC (Bailii, [2012] UKSC 46, [2012] 3 WLR 1019, [2012] 2 Lloyd’s Rep 615, [2012] WLR(D) 285, [2012] 2 BCLC 682, Bailii Summary, SC Summary, SC, UKSC 2010/0184)
    The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
  • Cited – Rubin and Another (Joint Receivers and Managers of The Consumers Trust) -v- Eurofinance Sa and Others CA (Bailii, [2010] EWCA Civ 895, [2011] Bus LR 84, [2011] 2 WLR 121, [2011] 1 Ch 133)
    . .
  • Cited – Prest -v- Petrodel Resources Ltd and Others SC (Bailii, [2013] UKSC 34, [2013] WLR(D) 237, [2013] 3 FCR 210, [2013] 4 All ER 673, [2013] Fam Law 953, [2013] 2 FLR 732, [2013] BCC 571, [2013] 2 AC 415, [2013] WTLR 1249, [2013] 3 WLR 1, Bailii Summary, UKSC 2013/0004, SC Summary, SC)
    In the course of ancillary relief proceedings in a divorce questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .

Essex County Council -v- Essex Incorporated Congregational Church Union; HL 1963

References: [1963] AC 808
Coram: Lord Reid, Lord Hodson
An attempt was made by the parties to confer jurisdiction upon the Lands Tribunal.
Held: Constitutive jurisdiction cannot be created by agreement or estoppel. A statutory tribunal cannot be given jurisdiction by an earlier mistake, agreement, order or failure to take the point as to jurisdiction.
Lord Reid said: ‘It is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction, or can estop the consenting party from subsequently maintaining that such court or tribunal has acted without jurisdiction.’
This case is cited by:

  • Cited – Rydqvist -v- Secretary of State for Work and Pensions CA (Times 08-Jul-02, Bailii, [2002] EWCA Civ 947, [2002] 1 WLR 3343, [2002] ICR 1383)
    The applicant had applied to the tribunal with regard to his entitlement to job-seeker’s allowance, but withdrew his application before the hearing. The tribunal had nevertheless heard the case and held against him. He appealed that finding. The . .
  • Cited – Ahsan -v- Carter; Matt Carter -v- Raghib Ahsan CA (Bailii, [2005] EWCA Civ 990, Times 23-Aug-05, [2005] ICR 1817)
    The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
    Held: A political party when selecting candidates was not acting as a . .

Canada Trust Co and Others -v- Stolzenberg and Others (No 2); HL 12 Oct 2000

References: Times 17-Oct-00, Gazette 02-Nov-00, [2000] UKHL 51, [2000] 4 All ER 481, [2000] 3 WLR 1376, [2002] 1 AC 1, [2001] CLC 118, [2001] IL Pr 40
Links: House of Lords, House of Lords, House of Lords, Bailii
Coram: Lord Steyn Lord Hoffmann Lord Cooke of Thorndon Lord Hope of Craighead Lord Hobhouse of Woodborough
The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined at the issue of the writ. The defendant appealed.
Held: Where one defendant was domiciled in the UK at the time of the issue of a writ it was permissible at the same time to issue proceedings against other defendants who were not domiciled here, even if that the defendant upon whose domicile the action was founded subsequently abandoned or lost that domicile. The date in question was not the date on which the writ was served, particularly upon other defendants. The words ‘sued’, and ‘issued proceedings’, and began proceedings were used interchangeably in the Convention.
The standard of proof which the Claimants have to achieve is that of ‘good arguable case’
Statutes: Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988 Art 6, Civil Jurisdiction and Judgments Act 1982
This case cites:

  • Appeal from – Canada Trust Company and others -v- Wolfgang Otto Stolzenberg and others (2) CA (Times 10-Nov-97, Bailii, [1997] EWCA Civ 2592, [1998] 1 WLR 547, [1998] 1 All ER 318)
    The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
    Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must . .
  • See Also – The Canada Trust Co and Others -v- Stolzenberg and Others ChD (Times 10-Nov-97)
    A foreign resident defendant failing to comply with an order for discovery should be barred from defending after having been given notice. . .
  • Cited – Siegfried Zelger -v- Sebastiano Salinitri ECJ (Europa, C-129/83, R-129/83, Bailii, [1984] EUECJ R-129/83, [1984] ECR 2397)
    Article 21 of the Convention of 28 September 1968 must be interpreted as meaning that the court ‘first seised’ is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be . .
  • Cited – Molnlycke AB -v- Proctor & Gamble Ltd ([1992] 1 WLR 1112, [1992] FSR 549)
    The court considered the patentability of a baby’s disposable piaper. . .
  • Cited – Dresser UK -v- Falcongate Freight Management Ltd; The Duke of Yare CA ([1992] 5 CL 373, [1992] QB 502)
    In England the court was first seised of a matter at the point when the proceedings were served, not when they were issued. Article 21 was metaphorically described as a ‘tie-break rule’ which operates on the basis of strict chronological . .
  • Cited – Arab Monetary Fund -v- Hashim and Others (No 4) CA (Gazette 09-Sep-92, [1992] 1 WLR 1176)
    A Court had jurisdiction to order the consolidation of actions even before their respective writs had been served. It became a ‘pending’ action under the Order on issue of the originating process. . .
  • Cited – Grupo Torras Sa and Another -v- Sheikh Fahad Mohammed Al Sabah and Others CA (Independent 05-Jul-95, [1996] 1 Lloyd’s Rep 7, Bailii, [1995] EWHC 1 (Comm))
    A UK court may continue to hear a Spanish company’s claim against it’s own directors if a court was first seized of the matter here. Where a case concerned matters as to the constitution of a company, the courts of the company in which the company . .
  • Cited – Neste Chemicals SA and Others -v- DK Line Sa and Another (‘The Sargasso’) CA (Times 04-Apr-94, [1994] 3 All ER 180)
    An English Court becomes seised of a case on the service of the writ. Steyn LJ: ‘the general thrust of the Dresser UK Ltd case is not only binding on us but . . . is correct’. There were no ‘exceptions to the rule that date of service marks the time . .
  • Cited – Shearson Lehman Hutton -v- Fur Vermogenswaltung and Betechigungen (TVB) mbH ECJ (C-89/91, Bailii, [1993] EUECJ C-89/91, [1993] ECR 1-139)
    Europa Convention on Jurisdiction and the Enforcement of Judgments – Jurisdiction in proceedings concerning contracts concluded by consumers – Concept of ‘consumer’ – Plaintiff acting in pursuance of his trade or . .
  • Cited – Seaconsar Far East Ltd -v- Bank Markazi Jomhouri Islami Iran HL (Independent 20-Oct-93, Times 15-Oct-93, Gazette 17-Nov-93, [1994] 1 AC 438)
    A plaintiff must show that there is a ‘serious issue for trial’ to support and justify an application for overseas service. The standard of proof in respect of the cause of action relied on is whether, on the evidence, there was a serious question . .
  • Cited – Mulox IBC -v- Hendrick Geels ECJ (Europa, C-125/92, Bailii, [1993] EUECJ C-125/92, [1993] ECR 1-4075)
    Europa The terms used in the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted autonomously. Only such an interpretation is . .
  • Cited – P.S. Refson & Co. Ltd -v- Saggers CA ([1984] 1 WLR 1025)
    Though interlocutory relief may be granted before issue of a writ, it is always upon an undertaking to issue one. . .
  • See also – Canada Trust Co and Others -v- Stolzenberg and Others (No 4) CA (Times 14-May-98, Bailii, [1998] EWCA Civ 774)
    When appealing against fully argued refusal of jurisdiction, parties may not bring in additional evidence at that appeal save in exceptional circumstances. . .

This case is cited by:

The owners of the cargo lately laden on board the ship ‘Tatry’ -v- The owners of the ship ‘Maciej Rataj'; ECJ 6 Dec 1994

References: Times 28-Dec-94, C-406/92, [1994] EUECJ C-406/92, [1995] 1 Lloyd’s Rep 302, [1995] ILPr 81, [1999] QB 515, [1995] All ER (EC) 229, [1994] ECR I-5439, [1995] CLC 275, [1999] 2 WLR 181
Links: Bailii
ECJ On a proper construction, Article 57 of the Brussels Convention on jurisdiction and the enforcement of judgments as amended means that, where a Contracting State is also a contracting party to another convention on a specific matter containing rules on jurisdiction, that specialized convention precludes the application of the provisions of the Brussels Convention only in cases governed by the specialized convention and not in those to which it does not apply. Where a specialized convention contains certain rules of jurisdiction but no provision as to lis pendens or related actions, Articles 21 and 22 of the Brussels Convention accordingly apply.
On a proper construction of Article 21 of the Convention, where it requires, as a condition of the obligation of the second court seised to decline jurisdiction, that the parties to the two actions be identical, that cannot depend on the procedural position of each of them in the two actions. Where some but not all of the parties to the second action are the same as the parties to the action commenced earlier in another Contracting State, that article requires the second court seised to decline jurisdiction only to the extent to which the parties to the proceedings before it are also parties to the action previously commenced; it does not prevent the proceedings from continuing between the other parties.
For the purposes of Article 21 of the Convention, the ’cause of action’ comprises the facts and the rule of law relied on as the basis of the action and the ‘object of the action’ means the end the action has in view. An action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action and the same object within the meaning of that article as earlier proceedings brought by that defendant seeking a declaration that he is not liable for that loss. A subsequent action does not cease to have the same cause of action and the same object and to be between the same parties as a previous action where the latter, brought by the owner of a ship before a court of a Contracting State, is an action in personam for a declaration that that owner is not liable for alleged damage to cargo transported by his ship, whereas the subsequent action has been brought by the owner of the cargo before a court of another Contracting State by way of an action in rem concerning an arrested ship, and has subsequently continued both in rem and in personam, or solely in personam, according to the distinctions drawn by the national law of that other Contracting State.
The concept of ‘related actions’ defined in the third paragraph of Article 22 of the Convention, which must be given an independent interpretation, must be interpreted broadly and, without its being necessary to consider the concept of irreconcilable judgments in Article 27(3) of the Convention, must cover all cases where there is a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive. It is accordingly sufficient, in order to establish the necessary relationship between, on the one hand, an action brought in a Contracting State by one group of cargo owners against a shipowner seeking damages for harm caused to part of the cargo carried in bulk under separate but identical contracts, and, on the other, an action in damages brought in another Contracting State against the same shipowner by the owners of another part of the cargo shipped under the same conditions and under contracts which are separate from but identical to those between the first group and the shipowner, that separate trial and judgment would involve the risk of conflicting decisions, without necessarily involving the risk of giving rise to mutually exclusive legal consequences.
Statutes: Brussels Convention 21 22
This case is cited by:

  • Cited – Sarrio Sa -v- Kuwait Investment Authority HL (Times 17-Nov-97, House of Lords, Bailii, [1997] UKHL 49, [1999] AC 32, [1997] 4 All ER 929, [1997] 3 WLR 1143, [1998] 1 Lloyd’s Rep 129, [1998] Lloyd’s Rep Bank 57, [1997] CLC 1640, [1998] ILPr 319, Independent 19-Nov-97)
    The parties were spanish companies. They were involved in proceedings against each other in Spain. The respondent had begun an action here for negligent misrepresentation against the appellant. The appellant argued that given the Spanish . .
  • Cited – Television Autonomica Valenciana, Sa -v- Imagina Contenidos Audiovisuales, Sl ChD (Bailii, [2013] EWHC 160 (Ch))
    The defendant sought a stay of these proceedings pending the outcome of related proceedings in Spain. The claimant sought a declaration that a contract was terminated and damages for such breach. The Spanish proceedings were first in time.
  • Cited – In re The Alexandros T SC (Bailii, [2013] UKSC 70, [2013] 2 CLC 713, [2014] 1 Lloyd’s Rep 223, [2014] Lloyd’s Rep IR 327, [2014] 1 All ER 590, [2014] BUS LR 873, [2014] 1 All ER (Comm) 337, Bailii Summary, UKSC 2013/0023, SC Summary, SC)
    The parties had disputed insurance claims after the foundering of the Alexandros T. After allegations of misbehaviour by the underwriters, the parties had settled the claims in a Tomlin Order. Five years later, however, the shipowners began . .
  • Cited – Starlight Shipping Co -v- Allianz Marine & Aviation Versicherungs Ag and Others CA (Bailii, [2012] EWCA Civ 1714, [2013] ILPr 15, [2013] 1 Lloyd’s Rep 217, [2013] 1 All ER (Comm) 1297, [2013] 1 CLC 123)
    The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .

Rosler -v- Rottwinkel; ECJ 15 Jan 1985

References: R-241/83, [1985] EUECJ R-241/83, [1986] QB 33
Links: Bailii
ECJ 1. Article 16(1) of the Convention of 27 September 1968 applies to all lettings of immovable property, even for a short term, and even where they relate only to the use and occupation of a holiday home.
2. All disputes concerning the obligations of the landlord or of the tenant under a tenancy, in particular those concerning the existence of tenancies or the interpretation of the terms thereof,their duration, the giving up of possession to the landlord, the repairing of damage caused by the tenant or the recovery of rent and of incidental charges payable by the tenant, such as charges for the consumption of water , gas and electricity, fall within the exclusive jurisdiction conferred by article 16(1) of the convention on the courts of the state in which the property is situated. On the other hand, disputes which are only indirectly related to the use of the property let, such as those concerning the loss of holiday enjoyment and travel expenses, do not fall within that exclusive jurisdiction.
Statutes: Convention of 27 September 1968 On Jurisdiction And The Enforcement Of Judgments In Civil And Commercial Matters

Cordoba Shipping Co Ltd -v- National State Bank, Elizabeth, New Jersey (The Albaforth); CA 1984

References: [1984] 2 Lloyd’s LR 91
Coram: Ackner LJ, Robert Goff LJ
A negligent misrepresentation was made in a telex sent from the United States but received and acted upon in England. The judge had set aside leave to serve the document out of the jurisdiction.
Held: The appeal succeeded. The transmission was a tort committed within the jurisdiction within the meaning of Order 11 rule 1(1)(h).
Robert Goff LJ said: ‘If the substance of the alleged tort is committed within a certain jurisdiction, it is not easy to imagine what other fact could displace the conclusion that the courts of that jurisdiction are the natural forum’ and
”Now it follows from those decisions that, where it is held that a Court has jurisdiction on the basis that an alleged tort has been committed within the jurisdiction of the Court, the test which has been satisfied in order to reach that conclusion is one founded on the basis that the Court, so having jurisdiction, is the most appropriate Court to try the claim, where it is manifestly just and reasonable that the defendant should answer for his wrongdoing. This being so, it must usually be difficult in any particular case to resist the conclusion that a Court which has jurisdiction on that basis must also be the natural forum for the trial of the action. If the substance of an alleged tort is committed within a certain jurisdiction, it is not easy to imagine what other facts could displace the conclusion that the courts of that jurisdiction are the natural forum.’
Ackner LJ said: ‘the jurisdiction in which a tort has been committed is prima facie the natural forum for the determination of the dispute. England is thus the natural forum for the resolution of this dispute.’
This case is cited by:

  • Cited – Lewis and others -v- King CA (Bailii, [2004] EWCA Civ 1329, Times 26-Oct-04)
    The claimant sought damages for defamation for an article published on the Internet. The claimant Don King sued in London even though he lived in the US as did the defendants.
    Held: A publication via the internet occurred when the material was . .
  • Cited – Cooley -v- Ramsey QBD (Bailii, [2008] EWHC 129 (QB))
    The claimant sought damages after being severely injured in a road traffic accident in Australia caused by the defendant. The defendant denied that the court had jurisdiction to permit service out of the jurisdiction. The claimant said that the . .
  • Cited – Batey -v- Todd Engineering (Staffs) Ltd QBNI (Bailii, [2007] NIQB 109)
    . .
  • Cited – Base Metal Trading Ltd -v- Shamurin ComC (Bailii, [2001] EWHC 512 (Comm))
    . .
  • Cited – Douglas, Zeta-Jones, Northern & Shell Plc -v- Hello! Ltd, Hola Sa, Junco, The Marquesa De Varela, Neneta Overseas Ltd, Ramey ChD (Times 31-Jan-03, Bailii, [2003] EWHC 55 (Ch), Gazette 20-Mar-03, [2003] 1 All ER 1087, [2003] EMLR 29)
    The claimants sought an order striking out the defendants’ defence on the grounds that, by destroying documents, the possibility of a fair trial had been prejudiced.
    Held: Refusing the order, the court must distinguish between documents . .
  • Cited – Base Metal Trading Ltd -v- Shamurin ComC (Bailii, [2003] EWHC 2419 (Comm))
    . .
  • Cited – Base Metal Trading Ltd -v- Shamurin CA (Bailii, [2004] EWCA Civ 1316, Times 01-Nov-04, [2004] 4 All ER 1)
    The claimant sought damages from what were said to be speculative trades carried out by the defendant whilst working in Russia. The claims were in both equity and in tort. He was a director of the company which was incorporated in Guernsey.
  • Cited – Berezovsky -v- Forbes Inc and Michaels; Glouchkov -v- Same HL (Times 16-May-00, House of Lords, Gazette 31-May-00, House of Lords, Bailii, [2000] 1 WLR 1004, [2000] UKHL 25, [2000] 2 All ER 986)
    Plaintiffs who lived in Russia sought damages for defamation against an American magazine with a small distribution in England. Both plaintiffs had real connections with and reputations in England. A judgment in Russia would do nothing to repair the . .
  • Cited – VTB Capital Plc -v- Nutritek International Corp and Others SC (UKSC 2012/0167, Bailii, [2013] UKSC 5, WLRD, Balii Summary, [2013] WLR(D) 41, SC, SC Summ, [2013] 1 All ER 1296, [2013] BCC 514, [2013] 1 CLC 153, [2013] 1 Lloyd’s Rep 466, [2013] 2 AC 337, [2013] 1 BCLC 179, [2013] 1 All ER (Comm) 1009, [2013] 2 WLR 398)
    The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
  • Cited – VTB Capital Plc -v- Nutritek International Corp and Others SC (UKSC 2012/0167, Bailii, [2013] UKSC 5, WLRD, Balii Summary, [2013] WLR(D) 41, SC, SC Summ, [2013] 1 All ER 1296, [2013] BCC 514, [2013] 1 CLC 153, [2013] 1 Lloyd’s Rep 466, [2013] 2 AC 337, [2013] 1 BCLC 179, [2013] 1 All ER (Comm) 1009, [2013] 2 WLR 398)
    The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .

Kalfelis -v- Bankhaus Schroder, Munchmeyer, Hengst and Co and others; ECJ 27 Sep 1988

References: C-189/87, [1988] ECR 5565, R-189/87, [1988] EUECJ R-189/87, [1988] ECT 6656
Links: Bailii
ECJ For Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to apply, a connection must exist between the various actions brought by the same plaintiff against different defendants. That connection, whose nature must be determined independently, must be of such a kind that it is expedient to determine the actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. The expression ‘matters relating to tort, delict or quasi-delict’ contained in Article 5 (3) of the Convention must be regarded as an independent concept covering all actions which seek to establish the liability of a defendant and which are not related to a ‘contract’ within the meaning of Article 5(1). A court which has jurisdiction under Article 5(3) over an action in so far as it is based on tort or delict does not have jurisdiction over that action in so far as it is not so based.
Statutes: Convention on Jurisdiction And The Enforcement Of Judgments 5
This case is cited by:

  • Cited – Mazur Media Limited, Apex Entertainment Group Limited(Both In Administrative Receivership) -v- Mazur Media Gmbh (In Provisional Insolvency Under the Laws of Germany), Manuel Sack, Iris Mazur, Hanspeter Rhein ChD (Bailii, [2004] EWHC 1566 (Ch), Times 29-Jul-04)
    Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
    Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to . .
  • Cited – Kleinwort Benson Limited -v- City of Glasgow District Council HL (Gazette 19-Nov-97, Times 31-Oct-97, House of Lords, Bailii, [1997] UKHL 43, [1999] 1 AC 153, [1997] 4 All ER 641, [1997] 3 WLR 923)
    A claim for restitution of money paid under a contract which was void ab initio is not a claim in contract, nor tort, nor delict, it was justiciable only in the court of domicile. The Brussels Convention does not decide jurisdiction. ‘But it is . .
  • Cited – Shahar -v- Tsitsekkos and others ChD (Bailii, [2004] EWHC 2659 (Ch), Times 30-Nov-04)
    The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
  • Cited – Masri -v- Consolidated Contractors International (UK) Ltd CA (Times 27-Oct-05, Bailii, [2005] EWCA Civ 1436, [2006] 1 WLR 830)
    The defendants who were resident in Greece appealed a decision that the English court had jurisdiction over them, by virtue of a close connection of the matter with earlier proceedings heard here.
    Held: The fact that the defendants were all . .
  • Cited – Casio Computer Co Ltd -v- Sayo and others CA (Bailii, [2001] EWCA Civ 661)
    The court was asked whether a constructive trust claim based on dishonest assistance is a matter ‘relating to tort, delict or quasi delict’ for the purpose of Article 5(3) of the Brussels Convention?
    Held: A constructive trust claim based upon . .
  • Cited – Gomez and others -v- Vives CA (Bailii, [2008] EWCA Civ 1065)
    The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
    Held: The appeal failed in part. Because Article 5 is in derogation from . .
  • Cited – Kinnear and Others -v- Falconfilms Nv and Others QBD (Bailii, [1994] EWHC QB 1, [1996] 1 WLR 920, [1994] ILPr 731, [1994] 3 All ER 42)
    The deceased had died in an accident whilst filming in Spain for the defendants. The plaintiff personal representatives sought damages here, while the defendants denied that the court had jurisdiction under the 1968 Convention, and said that the . .

Kleinwort Benson Limited -v- City of Glasgow District Council; HL 19 Jun 1997

References: Gazette 19-Nov-97, Times 31-Oct-97, [1997] UKHL 43, [1999] 1 AC 153, [1997] 4 All ER 641, [1997] 3 WLR 923
Links: House of Lords, Bailii
Coram: Lord Goff
A claim for restitution of money paid under a contract which was void ab initio is not a claim in contract, nor tort, nor delict, it was justiciable only in the court of domicile. The Brussels Convention does not decide jurisdiction. ‘But it is clearly recognised that article 5 is in derogation from the basic principle of domicile in article 2 and that as a result the provisions of article 5 are to be construed restrictively.’ The House rejected the argument that a claim for unjust enrichment fell within Article 5(3) because, other than in exceptional circumstances, such a claim did not pre-suppose either a harmful event or a threatened wrong.
Statutes: Civil Jurisdiction and Judgments Act 1982, Brussels Convention 1968 5
This case cites:

  • Cited – Kalfelis -v- Bankhaus Schroder, Munchmeyer, Hengst and Co and others ECJ (C-189/87, [1988] ECR 5565, R-189/87, Bailii, [1988] EUECJ R-189/87, [1988] ECT 6656)
    ECJ For Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to apply, a connection must exist between the various actions brought . .

This case is cited by:

  • Cited – Shahar -v- Tsitsekkos and others ChD (Bailii, [2004] EWHC 2659 (Ch), Times 30-Nov-04)
    The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
  • Cited – Casio Computer Co Ltd -v- Sayo and others CA (Bailii, [2001] EWCA Civ 661)
    The court was asked whether a constructive trust claim based on dishonest assistance is a matter ‘relating to tort, delict or quasi delict’ for the purpose of Article 5(3) of the Brussels Convention?
    Held: A constructive trust claim based upon . .
  • Cited – Gomez and others -v- Vives CA (Bailii, [2008] EWCA Civ 1065)
    The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
    Held: The appeal failed in part. Because Article 5 is in derogation from . .

Canada Trust Company and others -v- Wolfgang Otto Stolzenberg and others (2); CA 29 Oct 1997

References: Times 10-Nov-97, [1997] EWCA Civ 2592, [1998] 1 WLR 547, [1998] 1 All ER 318
Links: Bailii
Coram: Waller, Nourse, Pill LJJ
The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must properly satisfy the court that it is right to take jurisdiction. That may involve considering matters which go both to jurisdiction and to the matter to be argued, e.g. the existence of a contract. ‘The question before the court should be decided on affidavits from both sides and without full discovery and/or cross-examination . . [The] ‘good arguable case’ test, although obviously applicable to the ex parte stage becomes of most significance at the inter partes stage. In the interlocutory context: ‘Good arguable case’ reflects that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e. of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allows the court to take jurisdiction. It is a threshold below ‘ proved on a balance of probabilities but higher than ‘ serious question to be tried ‘good arguable case ‘ is a concept with some degree of flexibility depending on the issue.’
Statutes: Civil Jurisdiction and Judgments Act 1982
This case cites:

This case is cited by:

The owners of the cargo lately laden on board the ship ‘Tatry’ -v- The owners of the ship ‘Maciej Rataj'; ECJ 6 Dec 1994

References: Times 28-Dec-94, C-406/92, [1994] EUECJ C-406/92, [1995] 1 Lloyd’s Rep 302, [1995] ILPr 81, [1999] QB 515, [1995] All ER (EC) 229, [1994] ECR I-5439, [1995] CLC 275, [1999] 2 WLR 181
Links: Bailii
ECJ On a proper construction, Article 57 of the Brussels Convention on jurisdiction and the enforcement of judgments as amended means that, where a Contracting State is also a contracting party to another convention on a specific matter containing rules on jurisdiction, that specialized convention precludes the application of the provisions of the Brussels Convention only in cases governed by the specialized convention and not in those to which it does not apply. Where a specialized convention contains certain rules of jurisdiction but no provision as to lis pendens or related actions, Articles 21 and 22 of the Brussels Convention accordingly apply.
On a proper construction of Article 21 of the Convention, where it requires, as a condition of the obligation of the second court seised to decline jurisdiction, that the parties to the two actions be identical, that cannot depend on the procedural position of each of them in the two actions. Where some but not all of the parties to the second action are the same as the parties to the action commenced earlier in another Contracting State, that article requires the second court seised to decline jurisdiction only to the extent to which the parties to the proceedings before it are also parties to the action previously commenced; it does not prevent the proceedings from continuing between the other parties.
For the purposes of Article 21 of the Convention, the ’cause of action’ comprises the facts and the rule of law relied on as the basis of the action and the ‘object of the action’ means the end the action has in view. An action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action and the same object within the meaning of that article as earlier proceedings brought by that defendant seeking a declaration that he is not liable for that loss. A subsequent action does not cease to have the same cause of action and the same object and to be between the same parties as a previous action where the latter, brought by the owner of a ship before a court of a Contracting State, is an action in personam for a declaration that that owner is not liable for alleged damage to cargo transported by his ship, whereas the subsequent action has been brought by the owner of the cargo before a court of another Contracting State by way of an action in rem concerning an arrested ship, and has subsequently continued both in rem and in personam, or solely in personam, according to the distinctions drawn by the national law of that other Contracting State.
The concept of ‘related actions’ defined in the third paragraph of Article 22 of the Convention, which must be given an independent interpretation, must be interpreted broadly and, without its being necessary to consider the concept of irreconcilable judgments in Article 27(3) of the Convention, must cover all cases where there is a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive. It is accordingly sufficient, in order to establish the necessary relationship between, on the one hand, an action brought in a Contracting State by one group of cargo owners against a shipowner seeking damages for harm caused to part of the cargo carried in bulk under separate but identical contracts, and, on the other, an action in damages brought in another Contracting State against the same shipowner by the owners of another part of the cargo shipped under the same conditions and under contracts which are separate from but identical to those between the first group and the shipowner, that separate trial and judgment would involve the risk of conflicting decisions, without necessarily involving the risk of giving rise to mutually exclusive legal consequences.
Statutes: Brussels Convention 21 22
This case is cited by:

  • Cited – Sarrio Sa -v- Kuwait Investment Authority HL (Times 17-Nov-97, House of Lords, Bailii, [1997] UKHL 49, [1999] AC 32, [1997] 4 All ER 929, [1997] 3 WLR 1143, [1998] 1 Lloyd’s Rep 129, [1998] Lloyd’s Rep Bank 57, [1997] CLC 1640, [1998] ILPr 319, Independent 19-Nov-97)
    The parties were spanish companies. They were involved in proceedings against each other in Spain. The respondent had begun an action here for negligent misrepresentation against the appellant. The appellant argued that given the Spanish . .
  • Cited – Television Autonomica Valenciana, Sa -v- Imagina Contenidos Audiovisuales, Sl ChD (Bailii, [2013] EWHC 160 (Ch))
    The defendant sought a stay of these proceedings pending the outcome of related proceedings in Spain. The claimant sought a declaration that a contract was terminated and damages for such breach. The Spanish proceedings were first in time.
  • Cited – In re The Alexandros T SC (Bailii, [2013] UKSC 70, [2013] 2 CLC 713, [2014] 1 Lloyd’s Rep 223, [2014] Lloyd’s Rep IR 327, [2014] 1 All ER 590, [2014] BUS LR 873, [2014] 1 All ER (Comm) 337, Bailii Summary, UKSC 2013/0023, SC Summary, SC)
    The parties had disputed insurance claims after the foundering of the Alexandros T. After allegations of misbehaviour by the underwriters, the parties had settled the claims in a Tomlin Order. Five years later, however, the shipowners began . .
  • Cited – Starlight Shipping Co -v- Allianz Marine & Aviation Versicherungs Ag and Others CA (Bailii, [2012] EWCA Civ 1714, [2013] ILPr 15, [2013] 1 Lloyd’s Rep 217, [2013] 1 All ER (Comm) 1297, [2013] 1 CLC 123)
    The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .

Adams -v- Cape Industries plc; CA 2 Jan 1990

References: [1990] Ch 433, [1991] 1 All ER 929, [1990] 2 WLR 657, [1990] BCLC 479, [1990] BCC 786
Coram: Slade, Mustill and Ralph Gibson LJJ
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in Texas in a suit by victims of asbestos. The defendant took no part in the United States proceedings and default judgments were entered. Actions on the judgment in England failed.
Held: The court declined to pierce the veil of incorporation. It was a legitimate use of the corporate form to use a subsidiary to insulate the remainder of the group from tort liability. There was no evidence to justify a finding of agency or facade.
There is an exception to the general rule, that steps which would not have been regarded by the domestic law of the foreign court as a submission to the jurisdiction ought not to be so regarded here, notwithstanding that if they had been steps taken in an English Court they might have constituted a submission to jurisdiction.
Slade LJ said: ‘Two points at least are clear. First, at common law in this country foreign judgments are enforced, if at all, not through considerations of comity but upon the basis of the principle explained thus by Parke B. in Williams v Jones
Secondly, however, in deciding whether the foreign court was one of competent jurisdiction, our courts will apply not the law of the foreign court itself but our own rules of private international law . .’ and ‘First, in determining the jurisdiction of the foreign court in such cases, our court is directing its mind to the competence or otherwise of the foreign court ‘to summon the defendant before it and to decide such matters as it has decided:’ see Pemberton v Hughes [1899] 1 Ch. 781, 790 per Lindley M.R. Secondly, in the absence of any form of submission to the foreign court, such competence depends on the physical presence of the defendant in the country concerned at the time of suit.
. . we would, on the basis of the authorities referred to above, regard the source of the territorial jurisdiction of the court of a foreign country to summon a defendant to appear before it as being his obligation for the time being to abide by its laws and accept the jurisdiction of its courts while present in its territory. So long as he remains physically present in that country, he has the benefit of its laws, and must take the rough with the smooth, by accepting his amenability to the process of its courts.’
This case cites:

  • Cited – Pemberton -v- Hughes CA ([1899] 1 Ch 781)
    Lindley MR said: ‘There is no doubt that the courts of this country will not enforce the decisions of foreign courts which have no jurisdiction in the sense explained above – i.e., over the subject matter or over the persons brought before them . . . .
  • Cited – Williams -v- Jones ([1845] EngR 394, Commonlii, (1845) 13 M & W 628, (1845) 153 ER 262)
    An action of debt lies upon a judgment of a county court. And the declaration need not state that the defendant resided within the jurisdiction of the county court, or was liable to be summoned to that court for the debt ; it is enough to state that . .
  • Applied – Woolfson -v- Strathclyde Regional Council HL (Bailii, [1978] UKHL 5, [1979] JPL 169, (1978) 248 EG 777, 1978 SC (HL) 90, 1978 SLT 159, (1979) 38 P & CR 521)
    The House considered the compensation payable on the compulsory purchase of land occupied by the appellant, but held under a company name.
    Held: The House declined to allow the principal shareholder of a company to recover compensation for the . .
  • Appeal from – Adams -v- Cape Industries plc ChD ([1990] 1 Ch 433)
    The piercing of the veil argument was used to attempt to bring an English public company, which was the parent company of a group which included subsidiaries in the United States, within the jurisdiction of the courts of the United States. Where a . .

This case is cited by:

  • Applied – Rakusens Ltd -v- Baser Ambalaj Plastik Sanayi Ticaret AS CA (Gazette 01-Nov-01, Times 09-Nov-01, [2001] EWCA Civ 1820, Bailii)
    A company had sought and obtained leave to serve proceedings on a foreign based company, by serving documents on a local agent. The local agent was an independent contractor, who received and transmitted orders to the company, but who, themselves, . .
  • Cited – Motorola Credit Corporation -v- Uzan and others (No 2) CA (Bailii, [2003] EWCA Civ 752, Times 19-Jun-03, Gazette 28-Aug-03, [2004] 1 WLR 113)
    World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
  • Cited – Harding -v- Wealands HL (Times 06-Jul-06, Bailii, [2006] UKHL 32, [2006] 3 WLR 83, [2006] 2 CLC 193, [2006] RTR 35, [2006] 4 All ER 1)
    The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
    Held: . .
  • Cited – Rubin and Another -v- Eurofinance Sa and Others SC (Bailii, [2012] UKSC 46, [2012] 3 WLR 1019, [2012] 2 Lloyd’s Rep 615, [2012] WLR(D) 285, [2012] 2 BCLC 682, Bailii Summary, SC Summary, SC, UKSC 2010/0184)
    The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
  • Cited – Rubin and Another (Joint Receivers and Managers of The Consumers Trust) -v- Eurofinance Sa and Others CA (Bailii, [2010] EWCA Civ 895, [2011] Bus LR 84, [2011] 2 WLR 121, [2011] 1 Ch 133)
    . .
  • Cited – Prest -v- Petrodel Resources Ltd and Others SC (Bailii, [2013] UKSC 34, [2013] WLR(D) 237, [2013] 3 FCR 210, [2013] 4 All ER 673, [2013] Fam Law 953, [2013] 2 FLR 732, [2013] BCC 571, [2013] 2 AC 415, [2013] WTLR 1249, [2013] 3 WLR 1, Bailii Summary, UKSC 2013/0004, SC Summary, SC)
    In the course of ancillary relief proceedings in a divorce questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .

British Airways Board -v- Laker Airways Limited; HL 1985

References: [1985] AC 58, [1984] UKHL 7, [1984] 3 WLR 413, [1984] 3 All ER 39
Links: Bailii
Coram: Lord Diplock
The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful under the Sherman and Clayton acts, but were not unlawful in English law. The English courts were therefore not the forum conveniens, and the injuncion was refused. In order for the court to issue a restraining injunction, it was necessary that the conduct of the party being restrained should fit ‘the generic description of conduct that is ‘unconscionable’ in the eye of English law’. ‘The interpretation of treaties to which the United Kingdom is a party but the terms of which have not either expressly or by reference been incorporated in English domestic law by legislation is not a matter that falls within the interpretative jurisdiction of an English court of law.’
Lord Diplock set out two principles: ‘The second proposition, that of English law, was understood by your Lordships to have been common ground between the parties, at any rate throughout the lengthy hearing of the appeal; no argument casting any doubt upon it was advanced. The proposition is that, even if the allegations against B.A. and B.C. in the complaint in the American action can be proved, they disclose no cause of action on the part of Laker against B.A. or B.C. that is justiciable in an English court. The Clayton Act which creates the civil remedy with threefold damages for criminal offences under the Sherman Act is, under English rules of conflict of laws, purely territorial in its application, while because the predominant purpose of acts of B.A. and B.C. that are complained of was the defence of their own business interests as providers of scheduled airline services on routes on which Laker was seeking to attract customers from them by operating its Skytrain policy, any English cause of action for conspiracy would be ruled out under the now well-established principle of English (as well as Scots) law laid down in a series of cases in this House spanning 50 years of which it suffices to refer only to Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25 and Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435.’
This case cites:

  • At First instance – British Airways Board -v- Laker Airways Limited ([1984] QB 142)
    Laker began an action in the US seeking damages under the US Sherman and Clayton Acts against other airlines, including British Airways and British Caledonian Airways. They said that the other airlines had combined in a conspiracy to undermine . .
  • Cited – Crofter Hand Woven Harris Tweed Company Limited -v- Veitch HL ([1942] AC 435, Bailii, [1941] UKHL 2, 1942 SC HL 1)
    The plaintiffs sought an interdict against the respondents, a dockers’ union, who sought to impose an embargo on their tweeds as they passed through the port of Stornoway.
    Held: A trade embargo was not tortious because the predominant purpose . .
  • Appeal from – British Airways Board -v- Laker Airways Limited CA ([1984] QB 186)
    The plaintiffs sought an injunction to restrain the defendant from pursuing an action in the US. That action alleged conspiracy by the plaintiffs to work together to put the defendant out of business on the North Atlantic route by anticompetitive . .

This case is cited by:

  • Cited – Turner -v- Grovit and others HL ([2002] ICR 94, House of Lords, Bailii, Gazette 14-Feb-02, [2001] UKHL 65, [2002] 1 WLR 107, [2002] 1 All ER 960 (Note), [2002] 1 All ER (Comm) 320 (Note), [2002] IRLR 358, [2002] ILPr 28, [2002] CLC 463)
    The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
  • Cited – South Carolina Insurance Co -v- Assurantie Maatschappij de Zeven Provincien NV HL ([1987] AC 24, [1986] 3 WLR 398, [1986] 3 A11 ER 487, [1986] 2 Lloyds Rep 317)
    There can be little basis for the grant of relief to a landowner providing protection from an action in nuisance if the landowner will not himself remedy the public nuisance. The House considered whether the circumstances gave the court power to . .
  • Cited – Occidental Exploration & Production Company -v-Republic of Ecuador CA (Bailii, [2005] EWCA Civ 1116, Times 23-Sep-05, [2006] 2 WLR 70, [2006] QB 432)
    The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
  • Cited – Serco Ltd -v- Lawson; Botham -v- Ministry of Defence; Crofts and others -v- Veta Limited HL (Bailii, [2006] UKHL 3, [2006] 1 ICR 250, Times 27-Jan-06, [2006] 1 All ER 823, [2006] IRLR 289)
    Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
  • Cited – Regina (on the application of Abassi and Another) -v- Secretary of State for Foreign and Commonwealth Affairs and Another CA (Times 08-Nov-02, Bailii, Gazette 06-Dec-02, [2002] EWCA Civ 1598, [2002] All ER (D) 70, [2003] UKHR 76)
    A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
    Held: Such an . .
  • Cited – Fourie -v- Le Roux and others HL (Bailii, [2007] UKHL 1, Times 25-Jan-07, [2007] 1 WLR 320, [2007] 1 All ER 1087, [2007] Bus LR 925)
    The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
  • Cited – Norris -v- United States of America and others HL (Bailii, [2008] UKHL 16, [2008] 2 All ER 1103, [2008] 2 WLR 673, HL)
    The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
    Held: It was not, and it would . .

British Airways Board -v- Laker Airways Limited; HL 1985

References: [1985] AC 58, [1984] UKHL 7, [1984] 3 WLR 413, [1984] 3 All ER 39
Links: Bailii
Coram: Lord Diplock
The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful under the Sherman and Clayton acts, but were not unlawful in English law. The English courts were therefore not the forum conveniens, and the injuncion was refused. In order for the court to issue a restraining injunction, it was necessary that the conduct of the party being restrained should fit ‘the generic description of conduct that is ‘unconscionable’ in the eye of English law’. ‘The interpretation of treaties to which the United Kingdom is a party but the terms of which have not either expressly or by reference been incorporated in English domestic law by legislation is not a matter that falls within the interpretative jurisdiction of an English court of law.’
Lord Diplock set out two principles: ‘The second proposition, that of English law, was understood by your Lordships to have been common ground between the parties, at any rate throughout the lengthy hearing of the appeal; no argument casting any doubt upon it was advanced. The proposition is that, even if the allegations against B.A. and B.C. in the complaint in the American action can be proved, they disclose no cause of action on the part of Laker against B.A. or B.C. that is justiciable in an English court. The Clayton Act which creates the civil remedy with threefold damages for criminal offences under the Sherman Act is, under English rules of conflict of laws, purely territorial in its application, while because the predominant purpose of acts of B.A. and B.C. that are complained of was the defence of their own business interests as providers of scheduled airline services on routes on which Laker was seeking to attract customers from them by operating its Skytrain policy, any English cause of action for conspiracy would be ruled out under the now well-established principle of English (as well as Scots) law laid down in a series of cases in this House spanning 50 years of which it suffices to refer only to Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25 and Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435.’
This case cites:

  • At First instance – British Airways Board -v- Laker Airways Limited ([1984] QB 142)
    Laker began an action in the US seeking damages under the US Sherman and Clayton Acts against other airlines, including British Airways and British Caledonian Airways. They said that the other airlines had combined in a conspiracy to undermine . .
  • Cited – Crofter Hand Woven Harris Tweed Company Limited -v- Veitch HL ([1942] AC 435, Bailii, [1941] UKHL 2, 1942 SC HL 1)
    The plaintiffs sought an interdict against the respondents, a dockers’ union, who sought to impose an embargo on their tweeds as they passed through the port of Stornoway.
    Held: A trade embargo was not tortious because the predominant purpose . .
  • Appeal from – British Airways Board -v- Laker Airways Limited CA ([1984] QB 186)
    The plaintiffs sought an injunction to restrain the defendant from pursuing an action in the US. That action alleged conspiracy by the plaintiffs to work together to put the defendant out of business on the North Atlantic route by anticompetitive . .

This case is cited by:

  • Cited – Turner -v- Grovit and others HL ([2002] ICR 94, House of Lords, Bailii, Gazette 14-Feb-02, [2001] UKHL 65, [2002] 1 WLR 107, [2002] 1 All ER 960 (Note), [2002] 1 All ER (Comm) 320 (Note), [2002] IRLR 358, [2002] ILPr 28, [2002] CLC 463)
    The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
  • Cited – South Carolina Insurance Co -v- Assurantie Maatschappij de Zeven Provincien NV HL ([1987] AC 24, [1986] 3 WLR 398, [1986] 3 A11 ER 487, [1986] 2 Lloyds Rep 317)
    There can be little basis for the grant of relief to a landowner providing protection from an action in nuisance if the landowner will not himself remedy the public nuisance. The House considered whether the circumstances gave the court power to . .
  • Cited – Occidental Exploration & Production Company -v-Republic of Ecuador CA (Bailii, [2005] EWCA Civ 1116, Times 23-Sep-05, [2006] 2 WLR 70, [2006] QB 432)
    The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
  • Cited – Serco Ltd -v- Lawson; Botham -v- Ministry of Defence; Crofts and others -v- Veta Limited HL (Bailii, [2006] UKHL 3, [2006] 1 ICR 250, Times 27-Jan-06, [2006] 1 All ER 823, [2006] IRLR 289)
    Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
  • Cited – Regina (on the application of Abassi and Another) -v- Secretary of State for Foreign and Commonwealth Affairs and Another CA (Times 08-Nov-02, Bailii, Gazette 06-Dec-02, [2002] EWCA Civ 1598, [2002] All ER (D) 70, [2003] UKHR 76)
    A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
    Held: Such an . .
  • Cited – Fourie -v- Le Roux and others HL (Bailii, [2007] UKHL 1, Times 25-Jan-07, [2007] 1 WLR 320, [2007] 1 All ER 1087, [2007] Bus LR 925)
    The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
  • Cited – Norris -v- United States of America and others HL (Bailii, [2008] UKHL 16, [2008] 2 All ER 1103, [2008] 2 WLR 673, HL)
    The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
    Held: It was not, and it would . .

Nissan -v- The Attorney General; HL 11 Feb 1969

References: [1970] AC 179, [1969] UKHL 3
Links: Bailii
Coram: Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearce, Lord Wilberforce, Lord Pearson
The plaintiff was a British subject with a hotel in Cyprus taken over by British troops on a peace-keeping mission. At first the men were there by agreement of the governments of Cyprus and the United Kingdom. Later they became part of a United Nations peace-keeping force. The plaintiff claimed compensation for the occupation of his hotel and damage allegedly done to his property by the British troops billeted there. Preliminary issues were tried which included the question whether the alleged actions of the British troops were acts of state so that no claim lay against the UK government.
Held: The defence of act of state was not available. While the making of the treaty (agreement) between the Cyprus government and the British, Greek and Turkish governments was an act of state and some acts done in performance of the treaty might be acts of state, the occupation of the hotel and the damage allegedly done to it were not sufficiently closely connected to the making of the treaty to fall within the scope of the doctrine.
The House considered the meaning of the phrase ‘act of state’. The way in which the government exercises its prerogatives in relation to foreign affairs and in its relations with foreign states does not give rise to rights which are cognisable by the domestic courts: ‘As regard such acts it is certainly the law that the injured person if an alien cannot sue in an British Court and can only have resort to diplomatic protest. How far this rule goes and how far it prevents resort to the courts by British subjects is not a matter on which clear authority exists.’
Lord Wilberforce cited the following definition of Crown acts of state: ‘An act of the executive as a matter of policy performed in the course of its relations with another state, including its relations with the subjects of that state, unless they are temporarily within the allegiance of the Crown.’ However: ‘This is less a definition than a construction put together from what has been decided in various cases; it covers as much ground as they do, no less, no more. It carries with it the warning that the doctrine cannot be stated in terms of a principle but developed from case to case.’
This case is cited by:

  • Cited – Mulcahy -v- Ministry of Defence CA (Independent 29-Feb-96, Times 27-Feb-96, [1996] QB 732, [1996] 2 All ER 758, Bailii, [1996] EWCA Civ 1323, [1996] 2 WLR 474)
    A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
  • Cited – Bici and Bici -v- Ministry of Defence QBD ([2004] EWHC 786(QB), Bailii, Times 11-Jun-04)
    Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
    Held: The incidents occurred in the course of peace-keeping duties. It was . .
  • Cited – Smith, Regina (on The Application of) -v- Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC (Bailii, [2010] UKSC 29, WLRD, [2010] WLR (D) 165, SC Summary, SC, [2010] 3 WLR 223, [2010] 3 All ER 1067, [2011] 1 AC 1, [2010] Inquest LR 119, [2010] UKHRR 1020, [2010] HRLR 28, 29 BHRC 497)
    The deceased soldier died of heat exhaustion whilst serving as a private on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under . .

Spiliada Maritime Corporation -v- Cansulex Ltd, The Spiliada; HL 1986

References: [1987] 1 AC 460, [1986] 3 All ER 843, [1986] 3 WLR 972, [1986] UKHL 10
Links: Bailii
Coram: Lord Templeman, Lord Goff of Chieveley
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the result, it seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge . . An appeal should be rare and the appellate court should be slow to interfere.’
Lord Goff of Chieveley said that despite the use of the Latin adjective conveniens the real question in these cases was, which was the more appropriate forum: ‘[It] is not merely that the burden of proof rests on the plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so.’ and a ‘defendant can apply to have service set aside on the ground that there is an alternative jurisdiction ‘in which the case may be tried more suitably for the interests of all the parties and for the ends of justice’
The burden is on the claimant to persuade the court that England is clearly the most appropriate forum for trial. ‘The key to the solution of this problem lies, in my judgment, in the underlying fundamental principle. We have to consider where the case may be tried ‘suitably for the interests of all the parties and for the ends of justice.’ Let me consider the application of that principle in relation to advantages which the plaintiff may derive from invoking the English jurisdiction. Typical examples are: damages awarded on a higher scale; a more complete procedure of discovery; a power to award interest; a more generous limitation period. Now, as a general rule, I do not think that the court should be deterred from granting a stay of proceedings . . simply because the plaintiff will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the available appropriate forum. Take, for example, discovery. We know that there is a spectrum of systems of discovery applicable in various jurisdictions . . No doubt each of these systems has its virtues and vices; but, generally speaking, I cannot see that, objectively, injustice can be said to have been done if a party is, in effect, compelled to accept one of these well-recognised systems applicable in the appropriate forum overseas . . Then take the scale on which damages are awarded. Suppose that two parties have been involved in a road accident in a foreign country, where both were resident, and where damages are awarded on a scale substantially lower than those awarded in this country. I do not think that an English court would, in ordinary circumstances, hesitate to stay proceedings brought by one of them against the other in this country merely because he would be deprived of a higher award of damages here. . . . But the underlying principle requires that regard must be had to the interests of all the parties and the ends of justice; and these considerations may lead to a different conclusion in other cases . . [T]ake the example of cases concerned with time bars . . Now, to take extreme examples, suppose that the plaintiff allowed the limitation period to elapse in the appropriate jurisdiction, and came here simply because he wanted to take advantage of a more generous time bar applicable in this country; or suppose that it was obvious that the plaintiff should have commenced proceedings in the appropriate jurisdiction, and yet he did not trouble to issue a protective writ there; in cases such as these, I cannot see that the court should hesitate to stay the proceedings in this country, even though the effect would be that the plaintiff’s claim would inevitably be defeated by a plea of the time bar in the appropriate jurisdiction. Indeed a strong theoretical argument can be advanced for the proposition that, if there is another clearly more appropriate forum for the trial of the action, a stay should generally be granted even though the plaintiff’s action would be time barred there. But, in my opinion, this is a case where practical justice should be done. And practical justice demands that, if the court considers that the plaintiff acted reasonably in commencing proceedings in this country, and that, although it appears that (putting on one side the time bar point) the appropriate forum for the trial of the action is elsewhere than England, the plaintiff did not act unreasonably in failing to commence proceedings . . in that jurisdiction within the limitation period applicable there, it would not, I think, be just to deprive the plaintiff of the benefit of having started proceedings within the limitation period applicable in this country . . ‘
Lord Templeman said: ‘I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Chieveley in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days. An appeal should be rare and the appellate court should be slow to interfere’.
This case cites:

  • Cited – Sim -v- Robinow ((1892) 19 R 665)
    The task of the court in deciding jurisdiction is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice: . .

This case is cited by:

  • Cited – Paul Staines -v- Martin Richard Walsh, Justin Howard ChD (Bailii, [2003] EWHC 458 (Ch))
    The claimant sought an account from the defendant share broker for the proceeds of share transactions. The defendant said the matter should be tried in Hong Kong.
    Held: The claimant must show a good arguable case. Here there was evidence to . .
  • Cited – Isaac Jehuda Schapira -v- Jonathan Ahronson; Chanoch Marmari and Hotza’at Iton Ha’Aretz Ltd CA (Bailii, [1997] EWCA Civ 1303)
    . .
  • Cited – Mukta Gokaldas Hindocha (widow of C S Gheewala) and Others -v- Mahesh Shamjibhal Juthabhai Gheewala and Others PC (Bailii, [2003] UKHL 77, PC)
    PC (Jersey) The defendant sought a stay of the action, arguing it should be heard in another jurisdiction. He wanted the estate to be administered in Kenya, a jurisdiction which would apply Hindu laws of . .
  • Cited – Turner -v- Grovit and others HL ([2002] ICR 94, House of Lords, Bailii, Gazette 14-Feb-02, [2001] UKHL 65, [2002] 1 WLR 107, [2002] 1 All ER 960 (Note), [2002] 1 All ER (Comm) 320 (Note), [2002] IRLR 358, [2002] ILPr 28, [2002] CLC 463)
    The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
  • Cited – Tryg Baltic International (Uk) Ltd -v- Boston Compania De Seguros Sa and others ComC (Bailii, [2004] EWHC 1186 (Comm))
    Four defendants from Argentina sought to have set aside an order for them to be served, saying the appropriate jursidiction, if there was a triable issue, would be Argentina.
    Held: The agreements were to be construed according to English Law. . .
  • Cited – Lewis and others -v- King CA (Bailii, [2004] EWCA Civ 1329, Times 26-Oct-04)
    The claimant sought damages for defamation for an article published on the Internet. The claimant Don King sued in London even though he lived in the US as did the defendants.
    Held: A publication via the internet occurred when the material was . .
  • Cited – Dow Jones & Co Inc -v- Jameel CA (Bailii, [2005] EWCA Civ 75, Times 14-Feb-05, [2005] EMLR 16, [2005] QB 946, [2005] 2 WLR 1614, [2005] EMLR 353)
    The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
  • Cited – Pt Pan Indonesia Bank Ltd Tbk -v- Marconi Communications International Ltd CA (Bailii, [2005] EWCA Civ 422, Times 18-May-05)
    The parties disputed the jurisdiction of the English courts over a letter of credit. It foresaw payment here and in sterling, made by the English bank as against the appropriate documents. Authority had been given for service out of the . .
  • Cited – Limit (No 3) Ltd and others -v- PDV Insurance Company CA (Bailii, [2005] EWCA Civ 383, Times 14-Apr-05, [2005] Lloyd’s Rep IR 552)
    There had been substantial oil leaks in Venezuela, which had been insured and then re-insured in London. Permission had been given to serve the defendant out of the jurisdiction, but that permission had been set aside. The claimant now appealed.
  • Cited – Crofts and others -v- Cathay Pacific Airways Ltd and others CA (Bailii, [2005] EWCA Civ 599, Times 02-Jun-05, [2005] ICR 1436)
    The claimants were airline pilots employed by the respondent company with headquarters in Hong Kong. The court was asked whether an English Tribunal had jurisdiction to hear their complaints of unfair dismissal.
    Held: The pilots were employed . .
  • Cited – Sawyer -v- Atari Interactive Inc ChD (Bailii, [2005] EWHC 2351 (Ch), [2006] ILPr 8)
    The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
  • Cited – Teco Europe Limited -v- Trans India Lamps Limited CA (Bailii, [1996] EWCA Civ 633)
    Challenge to leave given to allow service of proceedings abroad. . .
  • Cited – Islamic Republic of Pakistan -v- Zardari and others ComC (Bailii, [2006] EWHC 2411 (Comm))
    The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
  • Cited – Ashton Investments Ltd. and Another -v- OJSC Russian Aluminium (Rusal) and others ComC (Bailii, [2006] EWHC 2545 (Comm), Times 31-Oct-06)
    The claimants sought damages for breach of confidence saying that the defendants had hacked into their computer systems via the internet to seek privileged information in the course of litigation. The defendants denied this and said the courts had . .
  • Cited – Dellar -v- Zivy and others ChD (Bailii, [2007] EWHC 2266 (Ch))
    Disappointed beneficiaries said they had been told that the deceased would leave certain shares to them. He did not do so, and they said the will had incorrectly interpreted his instructions. The defendants denied that the English court had . .
  • Cited – Cooley -v- Ramsey QBD (Bailii, [2008] EWHC 129 (QB))
    The claimant sought damages after being severely injured in a road traffic accident in Australia caused by the defendant. The defendant denied that the court had jurisdiction to permit service out of the jurisdiction. The claimant said that the . .
  • Cited – Berezovsky -v- Forbes Inc and Michaels; Glouchkov -v- Same HL (Times 16-May-00, House of Lords, Gazette 31-May-00, House of Lords, Bailii, [2000] 1 WLR 1004, [2000] UKHL 25, [2000] 2 All ER 986)
    Plaintiffs who lived in Russia sought damages for defamation against an American magazine with a small distribution in England. Both plaintiffs had real connections with and reputations in England. A judgment in Russia would do nothing to repair the . .
  • Cited – 889457 Alberta Inc -v- Katanga Mining Ltd and others ComC (Bailii, [2008] EWHC 2679 (Comm))
    The parties had set out on a joint venture with deeds providing for control of the shareholdings in each other. The claimant asserted a breach of the deed and sought a remedy. The first defendant company, incorporated in Bermuda argued that the . .
  • Cited – Pacific International Sports Clubs Ltd -v- Soccer Marketing International Ltd and Others ChD (Bailii, [2009] EWHC 1839 (Ch))
    The parties disputed ownership of shares in the football club Dynamo Kiev. Claims were to be made under Ukrainian company law and in equity. The claimant (a company registered in Mauritius) sought to proceed here. The defendants (largely companies . .
  • Cited – Agbaje -v- Akinnoye-Agbaje SC ([2010] 1 AC 628, [2010] 1 FLR 1813, Bailii, [2010] UKSC 13, Times, [2010] 2 WLR 709, [2010] 2 All ER 877, [2010] Fam Law 573, [2010] 2 FCR 1, UKSC 2009/0034, SC Summary, SC)
    The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
  • Cited – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others -v- Cape plc and Related Appeals HL (Gazette 31-Aug-00, Bailii, [2000] UKHL 41, [2000] 4 All ER 268, [2000] 1 WLR 1545)
    South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
  • Cited – Ashby and Others -v- Birmingham City Council QBD (Bailii, [2011] EWHC 424 (QB), [2011] IRLR 473, [2011] 4 All ER 182, [2011] Eq LR 339, [2012] ICR 1)
    The claimants appealed against the strike out of their claims for damages for breach of contract on imposing changes in employment contract and conditions. The County Court had accepted the Council’s arguments on the construction and application of . .
  • Cited – Birmingham City Council -v- Abdulla and Others CA (Bailii, [2011] EWCA Civ 1412, [2012] IRLR 116, [2012] ICR 20, [2012] Eq LR 81, [2012] 2 All ER 591, [2012] CP Rep 9)
    The Council appealed against an order dismissing its application for the claimants’ claims under equal pay legislation to be struck out for want of jurisdiction. The claims had been brought in the High Court rather than te hEmployment Tribunal, thus . .
  • Cited – Birmingham City Council -v- Abdulla & Others SC (Bailii, [2012] UKSC 47, Bailii Summary, [2013] IRLR 38, [2012] ICR 1419, [2012] Eq LR 1147, [2012] WLR(D) 294)
    Former employees wished to argue that they had been discriminated against whilst employed by the Council. Being out of time for Employment Tribunal Proceedings, they sought to bring their cases in the ordinary courts. The Council now appealed . .
  • Cited – VTB Capital Plc -v- Nutritek International Corp and Others SC (UKSC 2012/0167, Bailii, [2013] UKSC 5, WLRD, Balii Summary, [2013] WLR(D) 41, SC, SC Summ, [2013] 1 All ER 1296, [2013] BCC 514, [2013] 1 CLC 153, [2013] 1 Lloyd’s Rep 466, [2013] 2 AC 337, [2013] 1 BCLC 179, [2013] 1 All ER (Comm) 1009, [2013] 2 WLR 398)
    The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
  • Cited – Novus Aviation Ltd -v- Onur Air Tasimacilik As CA (Bailii, [2009] EWCA Civ 122, [2009] 1 CLC 850, [2009] 1 Lloyd’s Rep 576)
    The defendant appealed against a refusal to set aside the grant of leave to serve outside the jurisdiction granted to the claimant. Neither party conducted and business in England, and the contract was made in Switzerland, but was expressed to be . .
  • Cited – Vidal-Hall and Others -v- Google Inc QBD (Bailii, [2014] EWHC 13 (QB), [2014] WLR(D) 21, WLRD, [2014] FSR 30, [2014] 1 WLR 4155, [2014] EMLR 14, [2014] 1 CLC 201)
    The claimants alleged misuse of their private information in collecting information about their internet useage when using Google products. Google now applied for an order setting aside consent for service out of the jurisdiction.
    Held: The . .

Kalfelis -v- Bankhaus Schroder, Munchmeyer, Hengst and Co and others; ECJ 27 Sep 1988

References: C-189/87, [1988] ECR 5565, R-189/87, [1988] EUECJ R-189/87, [1988] ECT 6656
Links: Bailii
ECJ For Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to apply, a connection must exist between the various actions brought by the same plaintiff against different defendants. That connection, whose nature must be determined independently, must be of such a kind that it is expedient to determine the actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. The expression ‘matters relating to tort, delict or quasi-delict’ contained in Article 5 (3) of the Convention must be regarded as an independent concept covering all actions which seek to establish the liability of a defendant and which are not related to a ‘contract’ within the meaning of Article 5(1). A court which has jurisdiction under Article 5(3) over an action in so far as it is based on tort or delict does not have jurisdiction over that action in so far as it is not so based.
Statutes: Convention on Jurisdiction And The Enforcement Of Judgments 5
This case is cited by:

  • Cited – Mazur Media Limited, Apex Entertainment Group Limited(Both In Administrative Receivership) -v- Mazur Media Gmbh (In Provisional Insolvency Under the Laws of Germany), Manuel Sack, Iris Mazur, Hanspeter Rhein ChD (Bailii, [2004] EWHC 1566 (Ch), Times 29-Jul-04)
    Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
    Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to . .
  • Cited – Kleinwort Benson Limited -v- City of Glasgow District Council HL (Gazette 19-Nov-97, Times 31-Oct-97, House of Lords, Bailii, [1997] UKHL 43, [1999] 1 AC 153, [1997] 4 All ER 641, [1997] 3 WLR 923)
    A claim for restitution of money paid under a contract which was void ab initio is not a claim in contract, nor tort, nor delict, it was justiciable only in the court of domicile. The Brussels Convention does not decide jurisdiction. ‘But it is . .
  • Cited – Shahar -v- Tsitsekkos and others ChD (Bailii, [2004] EWHC 2659 (Ch), Times 30-Nov-04)
    The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
  • Cited – Masri -v- Consolidated Contractors International (UK) Ltd CA (Times 27-Oct-05, Bailii, [2005] EWCA Civ 1436, [2006] 1 WLR 830)
    The defendants who were resident in Greece appealed a decision that the English court had jurisdiction over them, by virtue of a close connection of the matter with earlier proceedings heard here.
    Held: The fact that the defendants were all . .
  • Cited – Casio Computer Co Ltd -v- Sayo and others CA (Bailii, [2001] EWCA Civ 661)
    The court was asked whether a constructive trust claim based on dishonest assistance is a matter ‘relating to tort, delict or quasi delict’ for the purpose of Article 5(3) of the Brussels Convention?
    Held: A constructive trust claim based upon . .
  • Cited – Gomez and others -v- Vives CA (Bailii, [2008] EWCA Civ 1065)
    The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
    Held: The appeal failed in part. Because Article 5 is in derogation from . .
  • Cited – Kinnear and Others -v- Falconfilms Nv and Others QBD (Bailii, [1994] EWHC QB 1, [1996] 1 WLR 920, [1994] ILPr 731, [1994] 3 All ER 42)
    The deceased had died in an accident whilst filming in Spain for the defendants. The plaintiff personal representatives sought damages here, while the defendants denied that the court had jurisdiction under the 1968 Convention, and said that the . .

Kleinwort Benson Limited -v- City of Glasgow District Council; HL 19 Jun 1997

References: Gazette 19-Nov-97, Times 31-Oct-97, [1997] UKHL 43, [1999] 1 AC 153, [1997] 4 All ER 641, [1997] 3 WLR 923
Links: House of Lords, Bailii
Coram: Lord Goff
A claim for restitution of money paid under a contract which was void ab initio is not a claim in contract, nor tort, nor delict, it was justiciable only in the court of domicile. The Brussels Convention does not decide jurisdiction. ‘But it is clearly recognised that article 5 is in derogation from the basic principle of domicile in article 2 and that as a result the provisions of article 5 are to be construed restrictively.’ The House rejected the argument that a claim for unjust enrichment fell within Article 5(3) because, other than in exceptional circumstances, such a claim did not pre-suppose either a harmful event or a threatened wrong.
Statutes: Civil Jurisdiction and Judgments Act 1982, Brussels Convention 1968 5
This case cites:

  • Cited – Kalfelis -v- Bankhaus Schroder, Munchmeyer, Hengst and Co and others ECJ (C-189/87, [1988] ECR 5565, R-189/87, Bailii, [1988] EUECJ R-189/87, [1988] ECT 6656)
    ECJ For Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to apply, a connection must exist between the various actions brought . .

This case is cited by:

  • Cited – Shahar -v- Tsitsekkos and others ChD (Bailii, [2004] EWHC 2659 (Ch), Times 30-Nov-04)
    The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
  • Cited – Casio Computer Co Ltd -v- Sayo and others CA (Bailii, [2001] EWCA Civ 661)
    The court was asked whether a constructive trust claim based on dishonest assistance is a matter ‘relating to tort, delict or quasi delict’ for the purpose of Article 5(3) of the Brussels Convention?
    Held: A constructive trust claim based upon . .
  • Cited – Gomez and others -v- Vives CA (Bailii, [2008] EWCA Civ 1065)
    The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
    Held: The appeal failed in part. Because Article 5 is in derogation from . .

Canada Trust Company and others -v- Wolfgang Otto Stolzenberg and others (2); CA 29 Oct 1997

References: Times 10-Nov-97, [1997] EWCA Civ 2592, [1998] 1 WLR 547, [1998] 1 All ER 318
Links: Bailii
Coram: Waller, Nourse, Pill LJJ
The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must properly satisfy the court that it is right to take jurisdiction. That may involve considering matters which go both to jurisdiction and to the matter to be argued, e.g. the existence of a contract. ‘The question before the court should be decided on affidavits from both sides and without full discovery and/or cross-examination . . [The] ‘good arguable case’ test, although obviously applicable to the ex parte stage becomes of most significance at the inter partes stage. In the interlocutory context: ‘Good arguable case’ reflects that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e. of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allows the court to take jurisdiction. It is a threshold below ‘ proved on a balance of probabilities but higher than ‘ serious question to be tried ‘good arguable case ‘ is a concept with some degree of flexibility depending on the issue.’
Statutes: Civil Jurisdiction and Judgments Act 1982
This case cites:

This case is cited by: