Tag Archives: Jurisdiction

May 17, 2013

Hyman -v- Hyman; HL 1929

The husband had left the wife for another woman. The parties had entered into a deed of separation under which the husband had paid two lump sums and agreed to make weekly payments of £20 for the life of the wife. The deed included a covenant by the wife that she would not institute any proceedings to make him pay more than this.
Held: The parties cannot lawfully covenant or make an agreement either not to invoke the jurisdiction or to control the powers of the court where jurisdiction in invoked. In partiicular, a wife cannot contract out of her matrimonial maintenance entitlements in a deed of separation.
Lord Atkin gave a short history of such contracts and commented on their effect: ‘We have to deal with a separation deed, a class of document which has had a chequered career at law. Not recognized by the Ecclesiastical Courts, such contracts were enforced by the common law. Equity at first frowned. Lord Eldon doubted but enforced them: cf. St. John v. St. John (1803) Ves. 525, 529 and Bateman v. Countess of Ross (1813) 1 Dow 235; and see the arguments of Sir Fitzroy Kelly and Mr Turner and of Mr Bethell in Wilson v. Wilson (1848) 1 H. L. C. 538, 550-553, 564, 565. Finally they were fully recognized in equity by Lord Westbury’s leading judgment in Hunt v. Hunt (1861) 4 D. F. & J. 221, in which he followed Lord Cottenham’s decision in Wilson v. Wilson (1846-1848) 1 HLCas 538, 550-553, 564, 565, where his argument for the respondent had prevailed. Full effect has therefore to be given in all courts to these contracts as to all other contracts. It seems not out of place to make this obvious reflection, for a perusal of some of the cases in the matrimonial courts seems to suggest that at times they are still looked at askance and enforced grudgingly. But there is no caste in contracts. Agreements for separation are formed, construed and dissolved and to be enforced on precisely the same principles as any respectable commercial agreement, of whose nature indeed they sometimes partake. As in other contracts stipulations will not be enforced which are illegal either as being opposed to positive law or public policy. But this is a common attribute of all contracts, though we may recognize that the subject-matter of separation agreements may bring them more than others into relation with questions of public policy.’

Court: HL
Date: 01-Jan-1929
Judges: Lord Hailsham, Lord Atkin
References: [1929] AC 601, [1929] All ER 245, [1929] P 1
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May 15, 2013

Ideal General Supply Co Ltd -v- Louis Edelson and Edelson (t/a Ideal Clothing Co); 1957

The plaintiff had started an action for passing off and slander in the county court. The county court judge declined jurisdiction on the basis he thought they were equity proceedings and the claimant withdrew the proceedings and started again in the High Court. The question was whether this created an estoppel
Held: It did not. Diplock J expressed no opinion on the view of the county court judge that he had no jurisdiction. Diplock J refused to award any damages because the plaintiff managed to put an end to the defendant’s passing-off by an injunction after 4 advertisements in a local evening newspaper and the plaintiff had suffered no damage at all. He was prepared to grant injunctive relief in respect of probable damage which would occur if the defendants continued their conduct.

Date: 01-Jan-1957
Judges: Diplock J
References: [1957] RPC 252,

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May 8, 2013

Sengupta -v- Republic of India; 1983

India did not appear at court to take a point on jurisdiction under the 1978 Act. The Court asked for the appointment of an amicus to assist it.
Held: The court has a duty under statute to give the effect to the immunity conferred, even though the state does not appear to claim it. As to the issue of state immunity: ‘If we have asked ourselves the right questions, then in our judgment the necessary result must be that there is no jurisdiction to entertain the applicant’s claim. It is true that any private individual can employ another, i.e. can enter into a contract of employment. Therefore in that sense the entry into a contract of employment is a private act. But when one looks to see what is involved int he performance of the applicant’s contract, it is clear that the performance of the contract is part of the discharge by the foreign state of its sovereign functions in which the applicant himself, at however lowly a level, is under the terms of his contract of employment necessarily engaged. One of the classic forms of sovereign acts by a foreign state is the representation of that state in a receiving state. From the doctrine of sovereign immunity were derived the concepts that the embassy premises were part of the soil of the foreign sovereign state, and that diplomatic staff are personally immune from local jurisdiction. A contract to work at a diplomatic mission in the work of that mission is a contract to participate in the public acts of the foreign sovereign. The dismissal of the applicant was an act done in pursuance of that public function, i.e. the running of the mission. As a consequence, the fairness of any dismissal from such employment is very likely to involve an investigation by the industrial tribunal into the internal management of the diplomatic representation in the United Kingdom of the Republic of India, an investigation wholly inconsistent with the dignity of the foreign state and an interference with its sovereign functions.’ The tribunal could not hear the claim even though the employment had been at a low grade.

Date: 01-Jan-1983
Judges: Justice Browne-Wilkinson
Statutes: State Immunity Act 1978 1(2)
References: [1983] ICR 221,
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May 1, 2013

Ceskoslovenska Obchodni Banka AS -v- Nomura International plc and Others; QBD 9-Dec-2002

The parties were in a substantial dispute. The respondents sought the hearing of the action in England, citing the greater experience in commercial litigation, and procedures better suited to such litigation. They also argued that the long delay likely in the Czech Republic would deny their right to a speedy trial.
Held: The Czech Republic being the more appropriate forum, and despite the fact that there might be delay, even to the point or breaching the claimant’s right to a speedy trial, that forum should still be chosen where substantial justice remained obtainable. The English action should be stayed. Other characteristics of the Czech system were consistent with Civil Law jurisdictions.

Court: QBD
Date: 09-Dec-2002
Judges: Jonathan Sumption QC
Statutes: European Convention on Human Rights Art 6
References: Times, 16-Dec-2002,

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April 25, 2013

Navig8 Pte Limited -v- Al-Riyadh Co; ComC 17-Dec-2012

Court: ComC
Date: 17-Dec-2012
Judges: Popplewell J
Links: Bailii,
References: [2012] EWHC 3925 (Comm),

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April 17, 2013

Metall und Rohstoff AG -v- Donaldson Lufkin & Jenrette Inc; CA 1990

There was a complicated commercial dispute involving allegations of conspiracy. A claim by the plaintiffs for inducing or procuring a breach of contract would have been statute-barred in New York.
Held: Slade LJ said: ‘The judge’s approach to the limitation point was further criticised by the defendants’ counsel on the grounds that, following the guidance given by Lord Goff in Spiliada relating to the treatment of a ‘legitimate personal or juridical advantage’ he should first have considered which was the appropriate forum without reference to the juridical advantage which M. & R. would enjoy by proceedings in England, and only if he decided that New York was prima facie the appropriate forum, should have gone on to consider whether, none the less, the limitation point rendered a trial in England necessary for the purpose of doing substantial justice between the parties. We think that the approach to this point suggested on behalf of the defendants is correct in principle and that at least on one reading of the judge’s judgment, he did not follow it, but took into account the juridical advantage point in his initial search for the appropriate forum.’
Slade LJ said: ‘Relief in tort under the principle of Grainger v Hill is not, in our judgment, available against a party who, however dishonestly, presents a false case for the purpose of advancing or sustaining his claim or defence in civil proceedings. This may well cause hardship to an injured party who cannot be sufficiently compensated by an appropriate order for costs. However, if there is a gap in the law it rests on sound considerations of public policy, as does the rule of law which gives immunity to witnesses against civil actions based on the falsity of evidence given in judicial proceedings. If the position were otherwise, honest litigants might be deterred from pursuing honest claims or defences and honest witnesses might be deterred from giving evidence.’

Court: CA
Date: 01-Jan-1990
Judges: Slade LJ
References: [1990] 1 QB 391,
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April 14, 2013

Revenue & Customs -v- Sunico ApS & Others; ECJ 11-Apr-2013

(Opinion) Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Article 6 of the Agreement – Capacity of Danish courts to make references to the Court – Regulation (EC) No 44/2001 – Article 1(1) – Concept of civil and commercial matters – Action by an authority – Damages for involvement in tax evasion by a third party which is not itself a taxable person

Court: ECJ
Date: 11-Apr-2013
Judges: Kokott AG
Statutes: Regulation (EC) No 44/2001 1(1)
Links: Bailii,
References: C-49/12, [2013] EUECJ C-49/12

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April 8, 2013

Compagnie Commercial Andre S A -v- Artibell Shipping Company Limited and the Governor and Company of the Bank of Scotland; SCS 7-Jan-1999

The pursuers employed the defenders to carry sugar across Iraq. The voyage had been abandoned. The defenders challenged the proceedings as to jurisdiction and otherwise.

Court: SCS
Date: 07-Jan-1999
Judges: Lord MacFadyen
Links: Bailii, ScotC,
References: [1999] ScotCS 2,
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April 8, 2013

Munden -v- The Duke of Brunswick; 1847

To an action on an annuity deed, defendant pleaded that, at the time of making the deed, he was the reigning Sovereign Duke of Brunswick and Luneberg; that the deed was made by him within his dominions; and that, from the time of the making thereof until action brought, he had been, and still was, justly entitled to all the rights, prerogatives and privileges appertaining to him as the Duke of Brunswick and Luneberg. Held, on demurrer to the replication, that the plea was bad for not stating that defendant was reigning sovereign duke at the time when the action was brought or plea pleaded.

Date: 01-Jan-1847
Links: Commonlii,
References: [1847] EngR 5, (1847) 10 QB 656, (1847) 116 ER 248

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April 8, 2013

AK Investment CJSC -v- Kyrgyz Mobil Tel Ltd and Others; PC 10-Mar-2011

(Isle of Man) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable iin Kyrgyzstan.
Lord Collins of Mapesbury set out the three principles applicable; first, the claimant must satisfy the court that, in relation to the foreign defendant to be served with the proceedings, there is a serious issue to be tried on the merits of the claim, ie a substantial question of fact or law or both. There has to be a real, as opposed to a fanciful, prospect of success on the claim. Secondly, the claimant must show a good arguable case that the claim against the foreign defendant falls within one or more of the classes of case for which leave to serve out of the jurisdiction may be given. ‘Good arguable case’ means that the claimant has a much better argument than the foreign defendant. Where a question of law arises in connection with a dispute about service out of the jurisdiction and that question of law goes to the existence of the jurisdiction then the court will normally decide the question of law, as opposed to seeing whether there is a good arguable case on that issue of law. Thirdly, the claimant must satisfy the court that in all the circumstances England is clearly or distinctly the appropriate forum for the trial of the dispute and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.

Court: PC
Date: 10-Mar-2011
Judges: Lord Phillips, Lord Mance, Lord Collins, Lord Kerr, Lord Dyson
Links: Bailii,
References: [2011] UKPC 7,
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