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Jurisdiction - From: 1985 To: 1989

This page lists 28 cases, and was prepared on 02 April 2018.


 
 British Airways Board v Laker Airways Limited; HL 1985 - [1985] AC 58; [1984] UKHL 7; [1984] 3 WLR 413; [1984] 3 All ER 39
 
Hasselblad (GB) Ltd v Orbison [1985] 1 QB 475
1985
CA
Sir John Donaldson MR
European, Jurisdiction, Defamation
In the course of proceedings brought by the European Commission against Hasselblad, Mr Orbison wrote a letter to the Commission upon which the appellant then sued for damages for libel. The court considered the dangers of national and European courts separately examining evidence in cases where each had some jurisdiction. Held: Sir John Donaldson MR said: "The first question which arises is whether this letter is to be regarded as sufficiently closely connected to the process of giving evidence for it to be necessary to extend absolute privilege to it, assuming always that absolute privilege would attach to evidence to the like effect given to the Commission." and as to jurisdiction "it cannot be right that the national courts and Community institutions shall both independently weigh the force of particular evidence with the possibility of inconsistent results." The privilege of immunity given to a court was a privilege that should not be extended.
Sir John Donaldson MR continued (obiter): "Mr Burton [counsel for the appellant] takes the point that an informer in England has only the benefit of qualified privilege: Shufflebottom v Allday (1857) 5 W.R. 315. Bringing the matter more up to date and relating it to an inquiry similar to that undertaken by the Commission, Mr Burton submits, rightly, that if Mr Orbison's letter had been addressed to the Director General of the Fair Trading, he could have been sued for libel and would have had to be content with the defence of qualified privilege."
1 Cites

1 Citers



 
 Ilyssia Compania Naviera SA v Bamaodah "The Elli 2"; CA 1985 - [1985] 1 Lloyd's Rep 107

 
 Rosler v Rottwinkel; ECJ 15-Jan-1985 - R-241/83; [1985] EUECJ R-241/83; [1986] QB 33
 
Deutsche Genossenschaftsbank v Sa Brasserie Du Pecheur R-148/84; [1985] EUECJ R-148/84
2 Jul 1985
ECJ

Jurisdiction

[ Bailii ]
 
AS-Autoteile Service GmbH v Pierre Malhe (Judgment) Case 220/84; [1985] ECR 2267
4 Jul 1985
ECJ
Lenz AG
European, Jurisdiction
The particular areas which fall under Article 16, certain disputes regarding tenancies, companies, registers, industrial property and the enforcement of judgments, are matters which, because of their particular difficulty or complexity, require that the court having jurisdiction should be particularly familiar with the relevant national law.
Lugano Convention
1 Citers


 
F Berghoefer GmbH and Co KG v ASA SA C-221/84; R-221/84; [1985] EUECJ R-221/84; [1985] ECR 2699
11 Jul 1985
ECJ

European, Jurisdiction
Brussels Convention - Interpretation of Article 17 - Validity of an oral jurisdiction agreement confirmed in writing by one party only.
"It must be pointed out that . . article 17 of the Convention does not expressly require that the written confirmation of an oral argument should be given by the party who is to be affected by the agreement. Moreover, as the various observations submitted to the Court have rightly emphasized, it is sometimes difficult to determine the party for whose benefit a jurisdiction agreement has been concluded before proceedings have actually been instituted.
If it is actually established that jurisdiction has been conferred by express oral agreement and if confirmation of that oral agreement by one of the parties has been received by the other and the latter has raised no objection to it within a reasonable time thereafter, the aforesaid literal interpretation of article 17 will also, as the Court has already decided in another context . . be in accordance with the purpose of that article, which is to ensure that the parties have actually consented to the clause. It would therefore be a breach of good faith for a party who did not raise any objection subsequently to contest the application of the oral agreement."
1 Citers

[ Bailii ]
 
MacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation [1986] Ch 482
1986
ChD
Hoffmann J
Banking, Jurisdiction
A plaintiff in an English action had obtained an order against an American bank, served on its London office, requiring production of books and papers at its New York head office. Held: The court pointed out the distinction between "personal jurisdiction, i.e. who can be brought before the court" and "subject matter jurisdiction, i.e., to what extent the court can claim to regulate the conduct of those persons". The court should not, save in exceptional circumstances, impose such a requirement upon a foreigner, and, in particular, upon a foreign bank. The principle is that a state should refrain from demanding obedience to its sovereign authority by foreigners in respect of their conduct outside the jurisdiction. The need to exercise the court's jurisdiction with due regard to the sovereignty of others is particularly important in the case of banks. Banks are in a special position because their documents are concerned not only with their own business but with that of their customers. They will owe their customers a duty of confidence regulated by the law of the country where the account is kept. That duty is in some countries reinforced by criminal sanctions and sometimes by 'blocking statutes' which specifically forbid the bank to provide information for the purpose of foreign legal proceedings. If every country where a bank happened to carry on business asserted a right to require that bank to produce documents relating to accounts kept in any other such country, banks would be in the unhappy position of being forced to submit to whichever sovereign was able to apply the greatest pressure. An English court should not, except in connection with substantive litigation here or in exceptional circumstances, make orders seeking to control the conduct of foreigners abroad or affecting their assets abroad.
Bankers Books Evidence Act 1879 87
1 Cites

1 Citers



 
 Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada; HL 1986 - [1987] 1 AC 460; [1986] 3 All ER 843; [1986] 3 WLR 972; [1986] UKHL 10
 
Siporex Trade SA v Comdel Commodities [1986] 2 Lloyds LR 428
1986

Bingham J
Jurisdiction, Litigation Practice
The court should not absolve a defaulting party from the consequences of its neglect by maintaining a Mareva injunction order in force.
1 Citers



 
 Lord Advocate v R W Forsyth Ltd; 1986 - (1986) 61 TC 1
 
Re International Tin Council [1987] Ch 419
1987
ChD
Millet J
Company, Insolvency, Jurisdiction
An order for the winding up of a foreign company operates universally, applies to all the foreign company's assets and brings into play the full panoply of powers and duties under the Insolvency Act 1986 like any other winding up order. Millett J said: "The statutory trusts extend to [foreign] assets, and so does the statutory obligation to collect and realise them and to deal with their proceeds in accordance with the statutory scheme."
The court said that it was to ask the question, "Could Parliament reasonably have intended that the International Tin Council should be subject to the winding-up process of the UK insolvency legislation?"
Millet J said of the nature of corporate insolvency: "Although a winding up in the country of incorporation will normally be given extra-territorial effect, a winding up elsewhere has only local operation. In the case of a foreign company, therefore, the fact that other countries, in accordance with their own rules of private international law, may not recognise our winding up order or the title of a liquidator appointed by our courts, necessarily imposes practical limitations on the consequences of the order. But in theory the effect of the order is world-wide. The statutory trusts which it brings into operation are imposed on all the company's assets wherever situate, within and beyond the jurisdiction. Where the company is simultaneously being wound up in the country of its incorporation, the English court will naturally seek to avoid unnecessary conflict, and so far as possible to ensure that the English winding up is conducted as ancillary to the principal liquidation. In a proper case, it may authorise the liquidator to refrain from seeking to recover assets situate beyond the jurisdiction, thereby protecting him from any complaint that he has been derelict in his duty. But the statutory trusts extend to such assets, and so does the statutory obligation to collect and realise them and to deal with their proceeds in accordance with the statutory scheme."
1 Citers


 
du Pont du Nemours v Agnew [1987] 2 Lloyd's Rep 585
1987
CA
Bingham LJ
Jurisdiction
An application was made to injunct the commencement of proceedings in England. Held: The request failed. The court was asked whether the English claimants had shown a good argument for invoking the jurisdiction of the English court against foreign defendants.
An element which may persuade the English court that the choice of English law makes England the appropriate forum include the fact that issues of English public policy may be involved. It remains however a fundamental error simply to equate choice of governing law with the choice of forum. Litigation in one place and at one time is, if it can be achieved, preferable, though: "the general undesirability of such concurrent proceedings is, however, but one consideration to be weighed as part of the overall assessment . . The policy of the law must nonetheless be to favour the litigation of issues once only, in the most appropriate forum". He stated that "It cannot necessarily lead to a stay or setting aside of English proceedings".
As to the affect of timing, Bingham LJ said: ". . I do not regard this as a case in which the dates of the beginning proceedings are significant. As it happens, the English proceedings began first and the Illinois action a month later. It might have been the other way round. I do not think the outcome of these appeals should be affected by what is little more than an accident of timing."
1 Citers



 
 SCF Finance Co Ltd v Masri (No 3); 1987 - [1987] QB 1028
 
SNI Aerospatiale v Lee [1987] AC 871
1987
PC
Lord Goff
Jurisdiction
When an English court makes a restraining order, it is making an order which is addressed only to a party which is before it. The order is not directed against the foreign court. "An injunction will only be issued restraining a party who is amenable to the jurisdiction of the court, against whom an injunction will be an effective remedy" The jurisdiction derives from "the basic principle of justice."
1 Citers



 
 South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV; HL 1987 - [1987] AC 24; [1986] 3 WLR 398; [1986] 3 A11 ER 487; [1986] 2 Lloyds Rep 317
 
Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) [1987] 1 AC 871; [1987] UKPC 12
14 May 1987
PC
Keith of Kinkel, Griffiths, Mackay of Clashfern, Goff of Chieveley LL, Sir John Megaw
Jurisdiction
Brunei Darussalam - The Board was asked where a civil claim should be tried. Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a sufficient justification for the grant of injunctive relief. The mere fact that the English court refused a stay of English proceedings on the grounds of forum non conveniens did not itself justify the grant of an injunction to restrain foreign proceedings. In this case the defendant's vexatious conduct was taken into account.
Lord Goff set out the following test: "In the opinion of their Lordships, in a case such as the present where remedy for a particular wrong is available both in the English (or, as here, the Brunei) court and in a foreign court, the English or Brunei Court will, generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexatious or oppressive. This presupposes that, as a general rule, the English or Brunei Court must conclude that it provides the natural forum for the trial of the action; and further, since the Court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so. So the Court will not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him."
1 Citers

[ Bailii ]
 
de Dampierre v de Dampierre [1988] 1 AC 92
1988
HL
Lord Goff
Jurisdiction, Family
The existence and state of foreign proceedings are relevant to the exercise of the court's discretion to stay an action on the ground of forum non conveniens. The essential test on which the court might exercise its discretion to stay the petition is if the court, as Lord Goff said, "is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of the parties and for the ends of justice."
1 Citers



 
 Mitsubishi Corp v Alafouzos; 1988 - [1988] 1 Lloyd's Rep 191
 
Hoffmann v Krieg R-145/86; [1988] EUECJ R-145/86
4 Feb 1988
ECJ

European, Jurisdiction
Europa Convention on Jurisdiction And The Enforcement Of Judgments - A foreign judgment which has been recognized by virtue of article 26 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must in principle have the same effects in the state in which enforcement is sought as it does in the state in which judgment was given.
A foreign judgment whose enforcement has been ordered in a contracting state pursuant to article 31 of the convention and which remains enforceable in the state in which it was given must not continue to be enforced in the state where enforcement is sought when, under the law of the latter state, it ceases to be enforceable for reasons which lie outside the scope of the convention. The convention does not preclude the court of the state in which enforcement is sought from drawing the necessary inferences from a national decree of divorce when considering the enforcement of the foreign order made in regard to maintenance obligations between spouses.
A foreign judgment ordering a person to make maintenance payments to his spouse by virtue of his conjugal obligations to support her is irreconcilable within the meaning of article 27(3) of the convention with a national judgment pronouncing the divorce of the spouses.
Europa
Article 36 of the Convention must be interpreted as meaning that a party who has not appealed against the enforcement order referred to in that provision is thereafter precluded, at the stage of the execution of the judgment, from relying on a valid ground which he could have pleaded in such an appeal, and that that rule must be applied of their own motion by the courts of the state in which enforcement is sought. However, that rule does not apply when it has the result of obliging the national court to make the effects of a national judgment which lies outside the scope of the convention conditional on its recognition in the state in which the foreign judgment whose enforcement is at issue was given.
[ Bailii ]

 
 Metall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc and another; QBD 29-Mar-1988 - [1990] QB 391
 
Babanaft International Co SA v Bassatne [1990] Ch 13; Independent, 30 June 1988; [1989] 1 All ER 433
30 Jun 1988
CA
Kerr, Neill and Nicholls LJJ
Jurisdiction, Banking, Litigation Practice
The court considered whether the state in which enforcement of a judgment will take place should be the place where the debt is situated upon which it is sought to execute. Held: There was nothing to preclude English courts from granting Mareva type injunctions against defendants extending to assets outside the jurisdiction, but the court insisted that there can be no question of such orders operating directly upon the foreign assets by way of attachment, or upon third parties, such as banks, holding the assets. The effectiveness of such orders for these purposes can only derive from their recognition and enforcement by the local courts, as should be made clear in the terms of the orders to avoid any misunderstanding suggesting an unwarranted assumption of extraterritorial jurisdiction.
Nicholls LJ was concerned at the "extraterritorial vice" of unqualified orders. He pointed out "The enforcement of the judgment in other countries, by attachment or like process, in respect of assets which are situated there is not affected by the order. The order does not attach those assets. It does not create, or purport to create, a charge on those assets, nor does it give the plaintiff any proprietary interest in then. The English court is not attempting in any way to interfere with or control the enforcement process in respect of those assets."
Kerr LJ said: "In my view, the key to the proper exercise of any extra-territorial jurisdiction must lie in the question whether there is international reciprocity for the recognition and enforcement of the type of order which is under consideration, in this case a Mareva injunction or a variant of it purporting to operate on the defendants’ assets abroad." and
"Apart from any EEC or EFTA connection, there is in any event no jurisdictional (as opposed to discretionary) ground which would preclude an English court from granting a pre-judgment Mareva injunction over assets situated anywhere outside the jurisdiction, which are owned or controlled by a defendant who is subject to the jurisdiction of our courts, provided that the order makes it clear that it is not to have any direct effect on the assets or on any third parties outside the jurisdiction save to the extent that the order may be enforced by the local courts. Whether an order which is qualified in this way would be enforced by the courts of states where the defendant’s assets are situated would of course depend on the local law . ."
Kerr LJ considered the standard proviso in such an order protecting the interests of third parties: "We understand that this is nowadays a standard type of proviso to Mareva injunctions, and it is of course inserted for the benefit of third parties who may be affected by the freezing order. My reason for quoting it is that it illustrates that, although Mareva injunctions are orders made in personam against defendants, they also have an in rem effect on third parties. It shows that, save to the extent of the proviso, the order is binding on third parties who have notice of the injunction. Although the passage in the judgment of Lord Denning MR in Z Ltd v. A [1982] 1 All ER 556 at 562, [1982] QB 558 at 573 headed ‘Operation in rem’ may well go too far in a number of respects, there cannot be any doubt that Mareva injunctions have a direct effect on third parties who are notified of them and who hold assets comprised in the order."
Neill LJ said: "I am satisfied, however, that the Court has jurisdiction to grant a mareva injunction over foreign assets, and that in this developing branch of the law the decision in Ashtiani v. Kashi may require further consideration in a future case."
1 Cites

1 Citers



 
 Kalfelis v Bankhaus Schroder, Munchmeyer, Hengst and Co and others; ECJ 27-Sep-1988 - C-189/87; [1988] ECR 5565; R-189/87; [1988] EUECJ R-189/87; [1988] ECT 6656
 
Attock Cement Co v Romanian Bank for Foreign Trade [1989] 1 WLR 1147
1989
CA
Staughton LJ
Jurisdiction
Where the parties to a contract have agreed to an English forum it would require strong grounds for one of the parties to resist the exercise of jurisdiction by the English court: "We should also look with favour on a choice of our own jurisdiction, when it appears to have been made in order to find a court which is neutral rather than one that is convenient."
1 Citers


 
Seashell Shipping Corporation v Mutualidad de Seguros del Instituto Nacional de Industria ("The Magnum" ex "Tarraco Augusta") [1989] 1 Lloyds Rep 47
1989
CA
Parker LJ
Jurisdiction, Contract
Where the decision as to forum depends upon the construction of the document or documents in one language and the rival courts are, on the one hand, courts whose native language is that of the document and on the other hand, courts whose native language is not that of the document, it is in the interests of the parties and the ends of justice that the true meaning should be ascertained and be decided by the courts whose native language is that of the document.
Parker LJ said: "In my view it would be unjust to the plaintiff to prevent him from proceeding in Courts where the result of his bargain would be to produce success and to force him to proceed in Courts where the result would or might be that the defendants escaped from their bargain."
1 Citers



 
 Republic of Haiti v Duvalier; CA 1989 - [1990] 1 QB 202; [1989] 2 WLR 261
 
Holmes v Bangladesh Biman Corporation [1989] AC 1112; [1989] 1 All ER 852; [1989] 2 WLR 481
1989
HL
Lord Bridge, Lord Griffiths
Transport, Damages, Jurisdiction
Mr Holmes was killed when the defendant's aircraft in which he was a passenger crashed on a domestic flight in Bangladesh. As a domestic flight, it was not international carriage. The proper law of the contract was undoubtedly Bangladeshi law. Under Bangladeshi law the plaintiff's damages would have been limited to £913. But Mr Holmes's widow sued in the United Kingdom, relying on the 1967 Order and its application to "all carriage of persons . . performed by aircraft for reward." She argued these words included foreign domestic flights. Held: The airline's appeal succeeded. Lord Bridge asked what modes of transport were regulated by the Hague Rules and said: "In authorising the application of such rules, based on or adapted from the Hague Rules, to non-Convention carriage by air, what categories of such carriage may Parliament have reasonably had in contemplation as the proper subject matter of United Kingdom legislation?"
Lord Griffiths said: "I can see no reason why our Parliament should wish to legislate to provide for domestic air law in Bangladesh any more than it would wish to legislate on road traffic or railway safety in Bangladesh and I do not believe that it intended it to do so."
1 Citers



 
 Holmes v Holmes; CA 1989 - [1989] Fam 47
 
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