Tag Archives: Jurisdiction

Ministry of Defence -v- Holloway and Others (Jurisdictional Points); EAT 28 Jul 2015

References: [2015] UKEAT 0396_14_2807
Links: Bailii
Coram: Langstaff P J
EAT JURISDICTIONAL POINTS
By a Treaty of 1960, the UK constituted the island of Cyprus an independent state, but retained two areas of the Island as military base areas (the Sovereign Base Areas – ‘SBAs’). Civilians who were dependents of service personnel or civil servants accompanying the Armed Forces in the SBAs engaged while in Cyprus as employees of the MOD complained to an ET in the UK that the terms of other civilians also engaged locally were better, and that this was discriminatory on the grounds of national origin or marital status. The ET had jurisdiction only if the territorial reach of the Equality Act 2010 encompassed the Claimants. An EJ held it did, since the connection with the UK and UK law was sufficiently close for this to be the case. In doing so, she considered that English law applied to the contracts of employment the Claimants had agreed with the MOD. This was held in error, since the law of the SBAs was that which applied (although one effect of this was that it many respects it adopted principles of or familiar to English Law), and it invalidated her overall conclusion. In particular, she had not been shown the authorities which made it clear that the Crown in relation to a British Overseas Territory such as an SBA was the Crown acting in right of the BOT, and not in right of the UK. Had she been, she would not necessarily have concluded as she did as to the strength of the connection between the Claimants and UK law. The question of the territorial reach of the Equality Act was remitted for fresh determination by the same judge.

Hunter -v- Murrow (Abduction: Rights of Custody); CA 28 Jul 2005

References: [2005] EWCA Civ 976, [2005] 2 FLR 1119
Links: Bailii
Coram: Lord Justice Thorpe Lord Justice Dyson Lord Justice Lloyd
Rights of access can in themselves amount to ‘rights of custody’ for the Convention. Dyson LJ divided the question of whether the father had rights of custody into two. The first, which he called ‘the domestic law question’, was what rights the father had in national law. The second, which he called ‘the Convention question’, was whether those rights were to be characterised as rights of custody for the purposes of the Convention.
Statutes: Hague Convention on the Civil Aspects of International Child Abduction 1980
This case is cited by:

  • Cited – In re D (A Child), (Abduction: Rights of Custody) HL (Bailii, [2006] UKHL 51, Times 17-Nov-06, [2007] 1 AC 619, [2007] 1 FLR 961, [2006] 3 WLR 989, [2007] 1 All ER 78)
    The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
    Held: The mother’s appeal succeeded. The Convention . .

Trillium (Nelson) Properties Ltd -v- Office Metro Ltd; ChD 9 May 2012

References: [2012] EWHC 1191 (Ch), [2012] ILPr 30, [2012] BCC 829, [2012] BPIR 1049
Links: Bailii
Coram: Mann J
Winding-up petition in which the principal issue is whether or not Office Metro Limited can be wound up in this jurisdiction in the light of the fact that, despite its being an English registered company, its centre of main interest is in Luxembourg. The question which has to be determined is whether or not it has an ‘establishment’ in this country for the purposes of the Insolvency Regulation.

Holmes -v- Bangladesh Biman Corporation; HL 1989

References: [1989] AC 1112, [1989] 1 All ER 852, [1989] 2 WLR 481
Coram: Lord Bridge, Lord Griffiths
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.’
This case is cited by:

  • Cited – Disley -v- Levine (T/a Airtrak Levine Paragliding) CA (Bailii, Times 29-Aug-01, Gazette 31-Aug-01, [2001] EWCA Civ 1087, [2002] 1 WLR 785)
    The claimant sought damages from her instructor, after being injured as a passenger trainee pilot of a paraglider. He responded that she was out of time, since the regulations applied. His appeal was refused. The system of regulation did not mention . .
  • Cited – Laroche -v- Spirit of Adventure (UK) Ltd CA (Bailii, [2009] EWCA Civ 12, Times, [2009] WLR (D) 18, WLRD)
    The claimant was injured flying in the defendant’s hot air balloon. The defendant said that the journey was covered by the 1967 Regulations and the damages limited accordingly. The claimant appealed against a decision that the balloon was an . .
  • Cited – Masri -v- Consolidated Contractors International Co Sal and Others HL (Bailii, [2009] UKHL 43, Times, [2009] 2 BCLC 382, [2009] Bus LR 1269, [2009] 4 All ER 847[2009] 4 All ER 847, [2009] 3 WLR 385)
    The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .

Somchai Liangsiriprasert -v- Government of the United States of America; PC 1991

References: [1991] 1 AC 225, (1991) 92 Cr App R 77, [1990] UKPC 31
Links: Bailii
Coram: Lord Griffiths
(Hong Kong) Application was made for the defendant’s extradition from Hong Kong to the USA. The question was whether a conspiracy entered into outside Hong Kong with the intention of committing the criminal offence of trafficking in drugs in Hong Kong was justiciable in Hong Kong although no overt act in pursuance of that conspiracy had yet taken place in Hong Kong.
Held: English criminal law is generally local in its effect. The criminal law does not concern itself with crimes committed abroad. Any offence may be tried in this country even if the last act did not take place here, provided the court sees nothing contrary to international comity in its assumption of jurisdiction. Conspiracy being an inchoate offence, no ‘last act’ was required.
Lord Griffiths said: ‘Unfortunately in this Century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the criminal law must face this new reality. Their lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England.’ and
‘The English courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred or where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting a crime take place in England, and restrict its application in such circumstances solely in cases where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country.’ and ‘Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England.’ and
‘It is notoriously difficult to apprehend those at the centre of the drug trade: it is only their couriers who are usually caught. If the courts were to regard the penetration of a drug dealing organisation by the agents of a law enforcement agency and a plan to tempt the criminals into a jurisdiction from which they could be extradited as an abuse of process it would indeed be a red letter day for the drug barons.’
This case cites:

  • Cited – Treacy -v- Director of Public Prosecutions HL ((1970) 55 Cr App R 113, [1971] AC 537, [1971] 1 All ER 110)
    Blackmail was alleged under section 21 of the 1968 Act, the letter making the unwarranted demand with menaces having been posted from England to an intended victim in Germany.
    Held: The appeal was dismissed. To allow an English court to have . .

This case is cited by:

  • Applied – Regina -v- Smith (Wallace Duncan) (No 1) CACD (Gazette 06-Dec-95, Times 13-Nov-95, Ind Summary 20-Nov-95, [1996] 2 CAR 1, [1996] 2 Cr App R 1)
    In the offence of fraudulent trading, ‘creditors’ are those to whom money was owed, including future creditors, not just those who can presently sue. Deceptions practised in UK, but having their effect abroad are prosecutable here. The only feature . .
  • Cited – Regina -v- Manning CACD (Bailii, Bailii, [1999] QB 980, [1998] EWCA Crim 2074, [1998] EWCA Crim 2073, [1999] Crim LR 151, [1999] 2 WLR 430, [1998] 2 Cr App R 461, [1998] 4 All ER 876)
    The defendant appealed his conviction for obtaining property by deception where part of the offence had taken place abroad.
    Held: Smith should be overturned. The last act or terminatory theory remains the binding common law of England and . .
  • Applied – Regina -v- Sansom ((1991) 92 Cr App R 115)
    Conspiracy over international borders – comity rule applied to provide jurisdiction. . .
  • Cited – Her Majesty’s Advocate -v- Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah HCJ (Bailii, ScotC, [1999] ScotHC 248)
    The court considered whether the criminal complaint that the defendants had been part of a conspiracy to set a bomb aboard an airliner which exploded over Scotland, was justiciable in Scotland. Lord Sutherland: ‘Where however, a crime of the utmost . .
  • Cited – Office of the King’s Prosecutor, Brussels -v- Cando Armas and others HL ([2006] 1 All ER 647, House of Lords, [2005] 3 WLR 1079, Times 18-Nov-05, Bailii, [2005] UKHL 67, [2006] 2 AC 1, [2006] 2 AC 1)
    The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation . .
  • Applied – Regina -v- Sansom CACD ([1991] 2 QB 130, (1991) 92 Cr App R 115)
    The appellants had been charged with conspiracy contrary to section 1 of the Criminal Law Act 1977. The court rejected the argument that the principle laid down in Somchai referred only to the common law and that it could not be applied to . .
  • Cited – Regina -v- Bartle and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina -v- Evans and Another and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte (No 3) HL (Gazette 28-Apr-99, House of Lords, Bailii, [1999] UKHL 147, [2000] 1 AC 147, [1999] 2 WLR 825, [1999] 2 All ER 97)
    An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
  • Cited – Regina -v- Latif; Regina -v- Shahzad HL (Gazette 07-Feb-96, Times 23-Jan-96, Independent 23-Jan-96, [1996] 1 WLR 104, [1996] 2 Cr App R 92, Bailii, [1996] UKHL 16, [1996] 1 All ER 353, [1996] Crim LR 92)
    The defendant had been lured into the UK by the unlawful acts of customs officers. He claimed abuse of process.
    Held: The category of cases in which the abuse of process principles can be applied is not closed. A customs officer committing an . .
  • Approved – Regina -v- Manning CACD (Times 23-Jul-98, [1999] QB 980)
    The accused dishonestly falsified a number of insurance cover notes which were said to be documents required for an accounting purpose, namely, those of the persons who had sought cover and to whom the cover notes were forwarded. The accused ran his . .
  • Cited – Purdy, Regina (on the Application of) -v- Director of Public Prosecutions HL (Bailii, [2009] UKHL 45, Times, [2009] UKHRR 1104, (2009) 12 CCL Rep 498, [2009] HRLR 32, [2010] 1 Cr App R 1, (2009) 109 BMLR 153, 12 CCL Rep 498, 27 BHRC 126, [2009] 3 WLR 403, [2009] 4 All ER 1147)
    The appellant suffered illness and anticipated that she might want to go to Switzerland to commit suicide. She would want her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the circumstances . .
  • Cited – Sheppard and Another, Regina -v- CACD (Bailii, [2010] EWCA Crim 65, [2010] 2 Cr App Rep (S) 68, [2010] 1 Cr App R 26, [2010] 1 WLR 2779, [2010] 2 All ER 850, [2010] Crim LR 720)
    The defendants appealed against their convictions for publishing racially inflammatory material. They skipped bail during the trial, were convicted in their absence, and returned after being refused asylum in the US. The convictions related to . .

John Louis Carter Fourie -v- Allan Le Roux and others; CA 7 Mar 2005

References: [2005] EWCA Civ 204, Times 25-Apr-2005
Links: Bailii
Coram: The Vice-Chancellor Lord Justice Parker Lord Justice Mance
The defendant’s company in South Africa had become insolvent and the claimant had recovered judgment for arrears of rent. They obtained a freezing order against the defendant. The defendant appealed saying the court did not have jurisdiction, and should have taken account of cross claims. The defendant argued that the order was sought on a tactical basis and that the true litigation was in South Africa and was not concluded. The claimant did not seek independant relief here, and would not be issuing proceedings. The order had been discharged, and the claimant appealed the discharge.
Held: The order had properly been discharged for want of jurisdiction, in the absence of any genuine attempt to seek substantive relief in England. The order would be amended to allow further consideration of the costs award.
Statutes: Insolvency Act 1986 426, Civil Jurisdiction and Judgments Act 1982
This case cites:

  • Cited – Hughes and others -v- Hannover Re Ruckversicherungs-Aktiengesellschaft CA (Times 06-Mar-97, Bailii, [1997] EWCA Civ 857, [1997] 1 BCLC 497)
    An insolvency court answering an international call for assistance has the full range of remedies available to it. It may exercise ‘its own general jurisdiction and powers’ as well as the insolvency laws of England and the corresponding laws of the . .
  • Cited – Memory Corporation -v- Sidhu (No 2) CA (Times 15-Feb-00, Gazette 27-Jan-00, Times 03-Dec-99, Bailii, [2000] EWCA Civ 9, [2000] 1 WLR 1443)
    Where a party applied to court for an ex parte order, counsel had direct duties to the court, and also the supporting legal team and clients had continuing and overlapping duties. There was little to be gained by trying to analyze these things too . .
  • Cited – Voice and Script International Ltd -v- Alghafar CA (Bailii, [2003] EWCA Civ 736)
    The court has a wide discretion whether to order the assessment of costs on an indemnity basis and the court of Appeal will rarely disturb the judge’s order as to costs.
    Judge LJ said: ‘By treating the absence of allocation to track as . .
  • Cited – Said -v- Butt ([1920] 3 KB 497)
    The plaintiff wanted to go to a play’s first night. He had fallen out with the management of the theatre, and knew that he would not get a ticket in his own name. He got a friend to go to the theatre and buy a ticket for him without disclosing the . .
  • Cited – Shaker -v- Al-Bedrawi and others CA (Bailii, [2002] EWCA Civ 1452, [2003] Ch 350)
    . .
  • Cited – MCA Records Inc -v- Charly Records Ltd and others (No 5) CA (Bailii, [2001] EWCA Civ 1923, [2003] 1 BCLC 93, [2002] EMLR 1)
    Thre had been an action for copyright and trade mark infringement. The court considered the personal liability of directors of the company for the costs of the action. . .
  • Cited – Hanak -v- Green CA ([1958] 2 QB 9)
    A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workment . .
  • Appeal from – Fourie -v- Le Roux and Others ChD (Times 08-Oct-04)
    Interim asset freezing injunctions had been obtained on the application of a liquidator in South Africa. The defendant applied for their discharge.
    Held: They should be discharged. No foreign proceedings had been specified for which they were . .

This case is cited by:

  • Appeal from – 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 . .

Ceska Sporitelna As -v- Gerald Feichter; ECJ 20 Sep 2012

References: C-419/11, [2012] EUECJ C-419/11, [2013] EUECJ C-419/11
Links: Bailii, Bailii
Coram: Sharpston AG
ECJ Opinion – Jurisdiction – Matters relating to a contract – Contract concluded by a consumer – Manager of a company – Credit agreement entered into by the company – Promissory note issued in incomplete form – Aval – Place for performance of the obligation
Statutes: Regulation No 44/2001

Williams -v- Jones; 22 Jan 1845

References: [1845] EngR 394, (1845) 13 M & W 628, (1845) 153 ER 262
Links: Commonlii
Coram: Parke B
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 the plaintiff levied his plaint in the county court for a Cause of action arising within its jurisdiction.
Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained.
This case is cited by:

  • 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 – Adams -v- Cape Industries plc CA ([1990] Ch 433, [1991] 1 All ER 929, [1990] 2 WLR 657, [1990] BCLC 479, [1990] BCC 786)
    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 . .

AIC Ltd -v- Federal Government of Nigeria; QBD 13 Jun 2003

References: [2003] EWHC 1357 (QB)
Links: Bailii
Coram: Stanley Burnton J
The court was asked: ‘i. whether a judgment against a State may be registered under section 9 of the Administration of Justice Act 1920 and enforced in this country; and
ii. whether moneys in a bank account of a central bank that is a separate legal entity, belonging beneficially to the government of its state, are liable to execution if those moneys are used or intended for use for commercial purposes.’
Held: Stanley Burnton J noted after referring to Alcom, that evidence of recent use of an account wholly for commercial purposes over a significant period of time may lead to the conclusion that the account is used or intended for use wholly for commercial purposes; but the older the use in evidence, the weaker the inference that may be drawn as to the use or intended use of the account. The focus is throughout on actual use. There was evidence that the relevant bank account had been dormant and said that, if an account was dormant for at least 18 months, it cannot be said to be presently used for any relevant purpose, and that the previous use was weak evidence of a present intention as to its use. The evidence was insufficient to disprove the statement in the Certificate.
Statutes: Administration of Justice Act 1920 9
This case cites:

  • Cited – Alcom Ltd -v- Republic of Colombia HL ([1984] AC 580, [1984] 2 WLR 750, [1984] 2 Lloyds Rep 24, [1984] 2 All ER 6)
    A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .

This case is cited by:

  • Cited – SerVaas Incorporated -v- Rafidian Bank and Others SC (Bailii, [2012] UKSC 40, [2012] 3 WLR 545, [2012] WLR(D) 257, Bailii SC, UKSC 2011/0247, SC Summary, SC)
    The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .

Konamaneni -v- Rolls Royce Industrial Power (India) Limited; ChD 20 Dec 2001

References: Times 31-Jan-2002, [2001] EWHC Ch 470, [2002] 1 WLR 1269
Links: Bailii
Coram: Justice Lawrence Collins
The claimants founded their action on the assertion that the defendants had been corrupt in obtaining contracts in India. The defendants argued that the English courts had no jurisdiction. The claimants held various small shareholdings in a company used as a vehicle for paying bribes, and sought return of the money paid. It was a derivative action.
Held: The company should normally be claimant in such an action. Such claims need not be restricted to English companies, and the English courts were the appropriate lex fori for this claim, but only if there was no other appropriate forum. The parties could offer to submit to Indian jurisdiction, and the defendant had done so. The courts of the place of incorporation will almost invariably be the appropriate forum for issues which relate to the existence of the right of shareholders to sue on behalf of the company. Most of the witnesses would be in India. The Indian connections of this case were overwhelming.
Statutes: Civil Procedure Rules 19.9 6.21 2(a)
This case cites:

  • Cited – Prudential Assurance Co Ltd -v- Newman Industries Ltd (No 2) CA ([1982] Ch 204)
    A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
  • Cited – Heyting -v- Dupont CA ([1964] 1 WLR 843)
    The plaintiff owned shares in a company registered in Jersey and created to make the most of an invention. The articles contained a deadlock provision.
    Held: This was ‘essentially a dispute between two discordant partners’ There was a general . .
  • Applied – BP Exploration Co (Libya) Ltd -v- Hunt ([1976] 3 All ER 879, [1976] 1 WLR 788)
    The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
    The court should be careful before describing as non-disclosure as material not included in an affidavit in . .

This case is cited by:

Grovit -v- De Nederlandsche Bank Nv and Others; CA 24 Jul 2007

References: [2007] EWCA Civ 953, [2008] 1 WLR 51, [2008] 1 All ER (Comm) 106, [2008] ILPr 19
Links: Bailii
Coram: May LJ, Dyson LJ, Jacob LJ
The claimants sought damages in defamation in respect of a letter faxed by the first defendant to the other defendants in London. The first defendant said that it had state immunity, and the other claimed similar benefits acting as the bank’s employees. The claimant now appealed against his action being struck out for lack of jurisdiction.
Held: The appeal was dismissed. The Bank and its employees, the second and third defendants, were exercising public law powers. They were performing the role of an administrative authority carrying out governmental supervisory functions which had been delegated to the Bank by the Dutch Government to protect the integrity of the financial system in the Netherlands. The fact that incidentally the letter contained libellous material did not deprive it of its essentially public law character.
Statutes: State Immunity Act 1978 14(2)
This case cites:

Chiron Corporation -v- Organon Teknika (No 2); CA 1993

References: [1993] FSR 567
Section 44 could be used in a patent contract dispute even though the patent at issue was governed by the law of a foreign state which would not itself have applied that section.
Statutes: Patents Act 1977 44
This case is cited by:

  • See Also – Chiron Corporation -v- Organon Teknika Ltd; Same -v- Murex Diagnostics (No 7) ChD (Ind Summary 11-Apr-94, Ind Summary 11-Apr-94, Times 17-Feb-94, [1994] FSR 458)
    The issue of loss in a prior patent challenge is res judicata in later proceedings despite the presence of experimental difficulties leading to ipossibly severe time limits. A patent applicant has no duty to inform the Patent Office of matters . .
  • See Also – Chiron Corporation and Others -v- Murex Diagnostics Ltd CA (Ind Summary 24-Oct-94, Times 14-Oct-94)
    ECJ judgments make a UK court functus officio only after their full judgment has been delivered. Where judgment had already been given, it was no longer possible for the defendant in an action to seek a reference to the European Court on refusal of . .
  • See Also – Chiron Corporation and Others -v- Murex Diagnostics Ltd (No 11) ChD (Times 15-Mar-96)
    A large interim award of damages can be proper if it is less than the likely damages which would be awarded at trial despite their remaining outstanding issues of fact to be decided. . .

Limit (No 3) Ltd and others -v- PDV Insurance Company; CA 11 Apr 2005

References: [2005] EWCA Civ 383, Times 14-Apr-2005, [2005] Lloyd’s Rep IR 552
Links: Bailii
Coram: Auld, Tuckey, Clarke LJJ
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.
Held: The claimant’s appeal failed. The burden was on him to identify and particularis the issues for the court to see whether the appropriate forum lay elsewhere. It was for Limit to show that England is clearly the most suitable forum for trial in the interests of the parties and for the ends of justice. It was not for the defendant to speculate as to how the action might proceed.
This case cites:

This case is cited by:

  • 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 . .
  • Cited – Amin Rasheed Shipping Corp -v- Kuwait Insurance Co HL ([1984] AC 50, [1983] 2 All ER 884, [1983] 2 Lloyds Rep 365, [1983] 3 WLR 241)
    A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by . .

eDate Advertising GmbH -v- X; ECJ 25 Oct 2011

References: [2011] EUECJ C-161/10, C-509/09, C-161/10, [2011] WLR (D) 330
Links: Bailii, WLRD
Coram: President V Skouris
ECJ Regulation (EC) No 44/2001 – Jurisdiction and the enforcement of judgments in civil and commercial matters – Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ – Directive 2000/31/EC – Publication of information on the internet – Adverse effect on personality rights – Place where the harmful event occurred or may occur – Law applicable to information society services)
Statutes: Regulation (EC) No 44/2001, Directive 2000/31/EC
This case cites:

  • See Also – Edate Advertising -v- X ECJ (C-161/10, Bailii, [2011] EUECJ C-161/10)
    ECJ Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Jurisdiction ‘in tort or quasi-delict’ – Violation of personal rights that may have been committed by the publication of information . .

Barnette -v- Government of the United States of America; United States Government -v- Montgomery (No 2); CA 24 Mar 2003

References: [2003] EWCA Civ 392, Times 28-Mar-2003, Gazette 05-Jun-2003, [2003] 1 WLR 1916
Links: Bailii
Coram: Lord Justice Scott Baker Lord Chief Justice Of England And Wales Lord Justice Kennedy
The appellant sought to resist the registration here of a confiscation order made in the US. She argued it would be contrary to the interests of justice to register it, that the US procedure would be unlawful here under the Convention, the appeal having been held in her absence.
Held: It could not be said that the registration here of the order would lead to a breach of the applicant’s human rights. Any breach of the applicant’s human rights in the US was not flagrant. English law itself allowed such a hearing in limited circumstances. The US proceedings were seen as civil. In the interests of comity, the order should be registered.
Statutes: Criminal Justice Act 1988 97, European Convention on Human Rights 6.1
This case cites:

  • See also – United States Government -v- Montgomery and Another HL (Times 06-Feb-01, House of Lords, Bailii, [2001] 1 WLR 196, [2001] 1 All ER 815, [2001] UKHL 3)
    An English court had power to make a restraining order against the disposal of assets pending an application for confiscation pursuant to a US order. This applied even if the US original judgment predated the date on which the US was added to the . .
  • Distinguished – Soering -v- The United Kingdom ECHR (14038/88, (1989) 11 EHRR 439, Worldlii, [1989] ECHR 14, Bailii)
    The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be made to the judge . .
  • Cited – Hadkinson -v- Hadkinson CA ([1952] P 285, [1952] FLR 287)
    The courts adopt an approach similar to that of the United States courts where there has been a significant contempt on the part of a party to litigation. Denning LJ said: ‘Those cases seem to me to point the way to the modern rule. It is a strong . .
  • Cited – Wim Harry Gerard Maronier -v- Bryan Larmer CA (Bailii, Times 13-Jun-02, Gazette 11-Jul-02, [2002] EWCA Civ 774, [2003] QB 620)
    The defendant had been a dentist in the Netherlands. An action for damages was begun against him, but then stayed. Judgment was later entered in the Netherlands after he had moved to the UK, and of which he was ignorant. There was no subsisting . .
  • Appeal from – Government of the United States of America -v- Barnette and another Admn ([2002] EWHC 1113 (Admin))
    The applicant sought to register, under the Act, an order against the funds of the defendant, who replied that the order sought to be registered had been obtained in a way which would infringe her human rights if obtained here. As a fugitive she had . .

This case is cited by:

  • See Also – United States Government -v- Montgomery and Another HL (Times 06-Feb-01, House of Lords, Bailii, [2001] 1 WLR 196, [2001] 1 All ER 815, [2001] UKHL 3)
    An English court had power to make a restraining order against the disposal of assets pending an application for confiscation pursuant to a US order. This applied even if the US original judgment predated the date on which the US was added to the . .
  • Appeal from – Government of the United States of America -v- Barnette and Montgomery (No 2) HL (House of Lords, Bailii, [2004] UKHL 37, [2004] 4 All ER 289, [2004] 1 WLR 2241)
    The applicant sought to resist orders for the return to the US of what were alleged to be the proceeds (direct or indirect) of a fraud committed there. She had been in contempt of the court in the US and was a fugitive here. She complained that the . .

Mujur Bakat Sdn Bhd and Another -v- Uni Asia General Insurance Berhad and Others; ComC 18 Mar 2011

References: [2011] EWHC 643 (Comm), [2011] Lloyd’s Rep IR 465
Links: Bailii
Coram: Eder J
Eder J said: ‘in considering whether or not England is the most appropriate forum, it is necessary to have in mind the overall shape of any trial and, in particular what are, or what are at least likely to be, the issues between the parties and which will ultimately be required to be determined at any trial. These were originally set out in two letters’
This case is cited by:

  • 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 . .

Coast Lines Ltd -v- Hudig and Veder Chartering NV; 1971

References: [1971] 2 Lloyd’s Rep 39
Coram: Roskill J
Parties who contract to give the UK courts jurisdiction must be taken at least to have wanted a case to be heard by the UK courts. The fact that the foreign forum, notwithstanding the express choice of English law, may not apply English law, and may instead apply its own law is also an element on accepting or declining jurisdiction.
This case is cited by:

  • 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 . .

Morin -v- Bonhams & Brooks Limited Bonhams & Brooks S A M; CA 18 Dec 2003

References: [2003] EWCA Civ 1802, [2004] 1 All ER (Comm) 880, [2004] 1 Lloyd’s Rep 702, [2004] ILPr 24
Links: Bailii
Coram: Lord Justice Keene Lord Justice Mance
The claimant had bought a vintage Ferrari motor car through the defendant auctioneers in Monaco but sought rescission after it appeared that the odometer had been altered. The auction conditions purported to exclude any description of the car. He appealed against refusal of a request for leave to serve the defendant outside the jurisdiction.
Mance LJ said: ‘As to English law, the judge also concluded, obiter, that Mr Morin had a reasonable prospect of showing that [B&B Monaco] owed him and were in breach of a duty of care, despite cll 3 and 27 of the conditions of sale. He distinguished statements of Morison J in De Balkany v Christie Manson & Woods Ltd (1997) 16 Tr LR 163 as obiter and as concerned with differently worded conditions. The present conditions are at pains to exclude any warranty or guarantee, and to refer to catalogue statements as matters of ‘opinion’. But cl 3 is prefaced by the words ‘Whilst every effort is made to ensure the accuracy of the description of each Lot in any Catalogue’ and cl 27 says that the description and information in the catalogue ‘are given for guidance’. It is a usual implication in relation to any expression of opinion by a professional person that due diligence has been exercised in preparing and expressing the opinion, and the opening words of cl 3 are entirely consistent with this’.
Statutes: Private International Law (Miscellaneous Provisions) Act 1995
This case cites:

  • Appeal from – Morin -v- Bonhams & Brooks Ltd and Another ComC (Bailii, [2003] EWHC 467 (Comm), Bailii, [2003] 2 All ER (Comm) 36, [2003] ILPr 25)
    Claim for rescission of contract for purchase of Ferrari car at auction after discovery of alteration to odometer.
    Jonathan Hirst QC said (after discussing the Christie’s case): ‘Plainly this authority provides substantial ammunition for B&B . .
  • Cited – Protea Leasing Ltd -v- Royal Air Cambodge Company Ltd ComC (Bailii, [2002] EWHC 2731 (Comm))
    The court should be careful before applying cases predating the 1995 Act on related issues. . .
  • Cited – Distillers Co Ltd -v- Thompson HL ([1971] AC 458)
    When asking where a tort occurred so as to give jurisdiction the court should ask: ‘where in substance did the cause of action arise, or . . what were the elements which constituted the gist of the relevant tort which it was alleged had been . .
  • Cited – Metall und Rohstoff AG -v- Donaldson Lufkin and Jenrette Inc and another QBD (Gazette, [1990] QB 391)
    The plaintiff had suffered damage when given negligent advice. It obtained a judgment but the company became insolvent, and it now sought to sue the US parent company in conspiracy. The defendant said that to establish conspiracy it was necessary . .
  • Cited – De Balkany -v- Christie Manson & Woods Ltd QBD (Independent 19-Jan-95, (1997) 16 Tr LR 163)
    Over-painting was deemed to be a forgery within the Christie terms and conditions. The exception was excluded. Christie’s was liable under the guarantee it had given. Morison J also considered (obiter) the defendant’s possible liability in tort, and . .

This case is cited by:

  • Cited – Avrora Fine Arts Investment Ltd -v- Christie, Manson & Woods Ltd ChD (Bailii, [2012] EWHC 2198 (Ch))
    The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
    Held: Based on the connoisseurship evidence, 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 . .

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

References: [1990] 1 QB 391
Coram: Slade LJ
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.’
This case cites:

  • Appeal from – Metall und Rohstoff AG -v- Donaldson Lufkin and Jenrette Inc and another QBD (Gazette, [1990] QB 391)
    The plaintiff had suffered damage when given negligent advice. It obtained a judgment but the company became insolvent, and it now sought to sue the US parent company in conspiracy. The defendant said that to establish conspiracy it was necessary . .
  • Cited – Parker -v- Schuller CA ((1901) 17 TLR 299)
    The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the . .

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 – Total Network Sl -v- Revenue and Customs HL (Bailii, [2008] UKHL 19, HL, [2008] BPIR 699, [2008] 2 WLR 711, [2008] STI 938, [2008] 1 AC 1174, [2008] STC 644, [2008] BVC 340, [2008] BTC 5216)
    The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
  • Cited – Land Securities Plc and Others -v- Fladgate Fielder (A Firm) CA (Bailii, [2009] EWCA Civ 1402, Times, [2010] 1 Ch 467, [2010] 2 WLR 1265, [2009] NPC 147, [2010] 1 EG 70, [2010] 2 All ER 741, [2010] PTSR 1246)
    The claimants wanted planning permission to redevelop land. The defendant firm of solicitors, their tenants, had challenged the planning permission. The claimants alleged that that opposition was a tortious abuse because its true purpose was to . .
  • Cited – NML Capital Ltd -v- Argentina SC (Bailii, [2011] UKSC 31, Bailii Summary, SC Summary, SC, UKSC 2010/0040)
    The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
  • Cited – Stobart Group Ltd and Others -v- Elliott QBD (Bailii, [2013] EWHC 797 (QB))
    The defendant applied to the court for various officers of the cliamant companies to be subject to contempt proceedings. The claimants asked the court to strike of the defendant’s counterclaim and to make a civil restraint order against him. There . .

In Re Mansergh; 11 Jun 1861

References: [1861] EngR 711, (1861) 1 B & S 400, (1861) 121 ER 764
Links: Commonlii
Jurisdiction of Queen’s bench over tribunals abroad. Court martial. Military status.-I. This Court has no jurisdiction over tribunals out of the realm of England, although in countries subject to the British Crown. 2. Where the civil rights of a person in military service are affected by the judgment of a military tribunal, in which that tribunal has acted without jurisdiction, or has exceeded its jurisdiction, this Court will interfere; aliter where nothing but the military status of the party is affected by the judgmeat.-3. A. Captain in the Queen’s service, when stationed with his regiment in india, was gazetted to a majority ; and the appointment was notified in the general orders of the Commander-in-chief in India at head quarters, and in the regimental orders.

MacSteel Commercial Holdings (Pty) Ltd -v- Thermasteel V (Canada) Inc; CA 1996

References: [1996] CLC 1403
Coram: Sir Thomas Bingham MR, Millett LJ
The South African and Canadian parties had contracted subject to the law of England. The Canadian company said that England remained inappropriate as the choice of forum.
Held: Jurisdiction was declined.
The distinction between the choice of English law and a contractual choice of an English forum was a distinction of major importance when choosing a jurisdiction. Millett LJ said that the judge had made a fundamental error in equating choice of law with choice of forum.
This case is cited by:

  • 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 – 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 . .

Cathcart -v- Cathcart; 1902

References: (1902) 12 SLT 182
Coram: Lord Low
The Court refused to grant a declarator that the pursuer was entitled to a liferent of land situated in England. Lord Low said: ‘Real estate in England is beyond the jurisdiction of the Scotch courts . . Further, if decree of declarator in terms of the second conclusion was pronounced, this court would have no power to give practical effect to the right thereby declared. The pursuer would require to go to England to obtain his remedy. Would the English courts, according to the principles of international law, be bound to recognise and act upon the declarator of this court? I am of opinion that they would not . . I think that the answer would be that it was for the court of the country where the real estate was situated to say what was the result, as regards the rights of the parties [of the relevant events]. I am therefore of opinion that the question . . is one with which this court is not competent to deal.’

United Arab Emirates -v- Abdelghafar and Another; EAT 10 Jul 1995

References: [1995] UKEAT 768_94_1007, [1995] ICR 65, [1995] IRLR 243
Links: Bailii
Coram: Mummery P J
The appellant challenged a decision by the tribunal made in its absence that the tribunal had jurisdiction to hear against it a claim for unfair dismissal.
Held: The tribunal had erred. Though Sengupta had been decided under common law, it remained instructive. Though the tribunal had cited the section, it had not applied it correctly. This was a case of state immunity which had to be clearly distinguished from diplomatic immunity. The fact that he had been employed by a British citizen did not mean that state immunity was not available.
Mummery P J considered the principles applied by the Courts in considering whether to grant extensions of time under the Rules of the Supreme Court. He drew attention to two intersecting principles; the first that rules [and orders] should be obeyed, and the second that a party should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. The application of these principles is sensitive to the stage at which the application is made. Applications to extend time made at an early stage in proceedings are far more likely to receive sympathetic consideration than those made in relation to an appeal: ‘the approach is different, however, if the procedural default as to time relates to an appeal against a decision on the merits by the court or tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result he should act promptly. The grounds for extending his time are not as strong as where he has not yet had a trial. The interests of the parties and the public in certainty and finality of legal proceedings make the court more strict about time limits on appeals. An extension may be refused, even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings.
(4) An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default.’
. . ‘In accordance with the general principles stated above, the Appeal Tribunal follows the guidelines for the exercise of its discretion to extend time. They are only guidelines. They do not fetter the exercise of the discretion. They are intended to ensure, as far as possible, consistency of treatment, predictability of result and the attainment of justice.(1) The timetable set by the EAT Rules should be observed by the parties and their lay and professional advisers. Although more sympathy may be shown to a party who is unrepresented, as many are, there is no excuse, even in the case of an unrepresented party, for ignorance of the time limit or of the importance of compliance. When parties are notified of the reasons for the industrial tribunal’s decision they are informed of the 42-day time limit for appealing. The limits will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules.
(2) The tribunal’s discretion will not be exercised, unless the appellant provides the tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted. Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred. For example, the following explanations have been rejected by the Appeal Tribunal as excuses for delay: ignorance of the time limit; oversight of the passing of the limit, for example, by a solicitor under pressure of work; prior notification to the Employment Appeal Tribunal or the Industrial Tribunal or to the successful party of the intention to appeal; the existence of pending applications for review of the decision or for remedies; delay in the processing of an application for legal aid or of an application for advice or support from elsewhere, such as the Equal Opportunities Commission or the Commission for Racial Equality. It is always possible, in cases where there may be unavoidable delay, for an extension to be agreed between the parties or granted by order of the Appeal Tribunal before the period has expired. Alternatively, a notice of appeal may be served in order to comply with the Rules, with a covering letter saying that it may be necessary to apply to amend it later. (3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion. It is, of course, impossible to make an exhaustive list of factors. The Appeal Tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default. The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the notice of appeal was served only one day out of time. Parties who have decided to appeal are also strongly advised not to leave service of the notice of appeal until the last few days of the 42-day period. If they do, they run the risk of delay in the delivery of post or of the misdirection of mail. That risk can be avoided by service of the notice of appeal well within the period. The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal. Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance. If there is irreparable concrete prejudice, that will strengthen the opposition to the application for extension; but even if there is no prejudice, the application may still be refused. Thus, the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are: (a) What is the explanation for the default? (b) Does it provide a good excuse for the default? (c) Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time.
Statutes: State Immunity Act 1978 1(2) 4 16(1)(a)
This case cites:

  • Cited – Sengupta -v- Republic of India ([1983] ICR 221)
    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 . .
  • See Also – United Arab Emirates -v- Abdelghafar and others EAT (Bailii, [1994] UKEAT 1025_93_2907, [1995] IRLR 243, [1995] ICR 65)
    At a preliminary hearing, when the respondent failed to appear, the tribunal decided that it had jurisdiction to hear a case brought by the claimant against the respondent despite the 1978 Act. The respondent sought to appeal out of time.

This case is cited by:

  • Cited – Peters -v- Sat Katar Co Ltd (in liquidation) CA (Times 01-Jul-03, Bailii, [2003] EWCA Civ 943, Gazette 04-Sep-03)
    The claimant had sent a notice of appeal, but it was lost in the post. He now appealed a refusal of leave to apply out of time.
    Held: The EAT should look at the circumstances. Here a litigant in person would not have been alerted to the need . .
  • Approved – Aziz -v- Bethnal Green City Challenge Company Limited CA (Bailii, [1999] EWCA Civ 1479, [2000] IRLR 111)
    The notice of appeal was served three days late. The Registrar and Morison J refused to extend time, the judge concluding that the explanation for the delay was honest and full, but not acceptable.
    Held: Permission to appeal was refused. Sir . .
  • Cited – Military Affairs Office of the Embassy of the State of Kuwait -v- Caramba-Coker EAT (Bailii, [2003] UKEAT 1054_02_1004)
    The appellant challenged a finding of race discrimination against the respondent, saying the court had no jurisdiction. . .
  • Cited – Clancy -v- Cannock Chase Technical College EAT (Bailii, [1999] UKEAT 1026_98_0102, Bailii, [1999] UKEAT 1026_98_1202)
    The claimant sought to appeal against refusal to allow him an extension of time for appeal. He miscalculated the date.
    Held: Reasons given for failure to apply in time often did not excuse the failure. That applied here. ‘The time limits, it . .
  • Cited – Clancy -v- Cannock Chase Technical College CA (Bailii, [1999] EWCA Civ 1559)
    The claimant appealed refusal of leave to appeal to the EAT out of time. He had miscalculated the closing date by ten days.
    Held: ‘the existence of a ground of appeal does not in itself justify an extension of time. It has been held repeatedly . .
  • Cited – Dolega-Ossowski -v- Harvey Nichols EAT (Bailii, [2003] EAT 1300_02_2003, Bailii, [2003] UKEAT 1300_02_2003)
    The EAT considered applications for leave to appeal out of time from both parties.
    Held: ‘the principal issues in the exercise of the jurisdiction before me today. They are:
    1) What is the explanation for the default?
    2) Does it . .
  • Cited – Dolega-Ossowski -v- Harvey Nichols EAT (Bailii, [2003] EAT 1300_02_2003, Bailii, [2003] UKEAT 1300_02_2003)
    The EAT considered applications for leave to appeal out of time from both parties.
    Held: ‘the principal issues in the exercise of the jurisdiction before me today. They are:
    1) What is the explanation for the default?
    2) Does it . .
  • Cited – The Federal Republic of Nigeria -v- Ogbonna EAT (Bailii, [2011] UKEAT 0585_10_1207)
    EAT JURISDICTIONAL POINTS – State immunity
    A claim for compensation for psychiatric illness caused by unlawful discrimination is a claim for ‘personal injury’ within the meaning of section 5 of the State . .
  • Cited – Khudados -v- Leggate and others EAT (UKEAT/0026/04, Bailii, [2005] UKEAT 0026_04_1002, EAT, [2005] IRLR 540)
    Application was made to make extensive amendments to the notice of appeal.
    Held: The application was refused. The EAT practice guide required an application for an amendment to be made as soon as its necessity became apparent. The applicant . .

Babanaft International Co SA -v- Bassatne; CA 30 Jun 1988

References: [1990] Ch 13, Independent 30-Jun-1988, [1989] 1 All ER 433
Coram: Kerr, Neill and Nicholls LJJ
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.’
This case cites:

  • Limited – Z Ltd -v- A-Z and AA-LL CA ([1982] 1 All ER 556, [1982] 2 WLR 288, [1982] 1 QB 558)
    The plaintiffs, an oversea company with an office in London had been defrauded here. They sought and obtained Mareva injunctions against defendants and against six clearing banks. The banks sought clarification of their duties.
    Held: The . .
  • Cited – Ashtiani -v- Kashi CA ([1986] 2 All ER 970)
    On the grant of a Mareva injunction, the defendant had disclosed assets outside the jurisdiction in bank accounts in Europe. The plaintiff then obtained injunctions relating to those assets. The defendant obtained the discharge of those orders on . .

This case is cited by:

du Pont du Nemours -v- Agnew; CA 1987

References: [1987] 2 Lloyd’s Rep 585
Coram: Bingham LJ
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.’
This case is cited by:

  • 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 – 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 . .

Gomez and others -v- Encarnacion Gomez-Monche Vives and others; ChD 18 Feb 2008

References: [2008] EWHC 259 (Ch), [2008] 3 WLR 309
Links: Bailii
The court had no jurisdiction in a claim by the three claimants against their mother, the first defendant, arising out of a trust created by their father. The family was Spanish and the trust was expressed to be governed by English law. The defendants said that the income subject to the claim was subject to Spanish law.
Statutes: Council Regulation (EC) 44/2001 5(6), Jurisdiction and Judgments Act 1982
This case is cited by:

  • Appeal from – 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 . .

In the Estate of Fuld, decd (No 3); ChD 1967

References: [1968] P 675, [1967] 3 WLR 401, [1967] 3 All ER 318
Coram: Scarman J
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the legal system of the territory which invokes his personal law is based on a combination of residence and intention. Everybody has a domicile of origin, which may be supplanted by a domicile of choice.
Scarman J said: ‘First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time.’ and
‘(1) The domicile of origin adheres-unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it is affirmatively shown that the propositus is resident in a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn; the ultimate decision in each case is one of fact-of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres . . .’ and
‘necessary intention must be clearly and unequivocally proved. ‘ The domicile of origin is more enduring than the domicile of choice: ‘ . . It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the person asserting the change . . What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B in Barry v. Butlin [1838] 2 Moo P.C.C. 480) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear-first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words.’
When the court is asked to grant probate in solemn form it is called upon to decide whether the instrument propounded expresses the real intention of the testator. The law requires the court to exercise vigilant care and scrutiny whenever a case reveals reasonable grounds for suspicion. Scarman J said: ‘Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguard in will cases. The first type of safeguard is part of the substantive law – the requirements of proper form and due execution. Such requirements . . are no mere technicalities. They are the first line of defence against fraud upon the dead.
The second type of safeguard is the second line of defence. It is invoked where there are circumstances which give rise to suspicion; it is the safeguard of strict proof. In cases where no suspicion reasonably arises the court will allow inferences – presumptions as they are sometimes called – to be drawn from the regularity of a testamentary instrument upon its face, or the fact of due execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the will: and ‘he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator’.’
This case cites:

  • Cited – Barry -v- Butlin PC ((1838) 2 Moore’s PCC 480, Commonlii, [1838] EngR 1051, (1838) 1 Curt 637, (1838) 163 ER 223, Commonlii, [1838] EngR 1056, (1838) 2 Moo PC 480, (1838) 12 ER 1089, Commonlii, [1836] EngR 855, (1836) 1 Moo PC 98, (1836) 12 ER 749, Bailii, [1838] UKPC 22)
    The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

This case is cited by:

Sawyer -v- Atari Interactive Inc; ChD 1 Nov 2005

References: [2005] EWHC 2351 (Ch), [2006] ILPr 8
Links: Bailii
Coram: Lawrence Collins J
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 sought to exercise his auditing rights. The defendant company in the US handled the accountancy for the group. The defendants argued that the matter should be tried in the US.
Held: The contract provided for the UK as jurisdiction. The bulk of the witnesses and of the evidence and of the sales were in the US. Evidence would also be required from an intermediate licensee in the US. The natural forum was the US. The contract however clearly stipulated for England. The defendant had not made a timely application to challenge jurisdiction as required under the amended rules. Nevertheless, the court had jurisdiction to extend time and would grant it. It was accepted that the claimant had established sufficient prospect of success. The real issue was as to English law as chosen by the parties. The parties has already submitted to an English arbitration. In all the circumstances, the forum for the entire matter should be in England.
Statutes: Civil Procedure Rules 11(1)
This case cites:

  • Cited – Investors Compensation Scheme Ltd -v- West Bromwich Building Society HL (Times 24-Jun-97, House of Lords, Bailii, [1997] UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR 896, [1998] AC 896)
    The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
    Held: Investors having once . .
  • Cited – Columbia Tristar Home Video (International) Inc -v- Polygram Film International BV (Formerly Manifesto Film Sales BV) CA (Bailii, [2000] EWCA Civ 32)
    The court considered a contract requiring access to be given to accounts records for auditing licence fees. . .
  • Cited – SSQ Europe SA -v- Johann & Backes OHG ([2002] 1 Lloyd’s Rep. 465)
    Extension of time to challenge court’s jurisdiction. . .
  • Cited – BFC Aircraft Sales and Leasing Ltd -v- Ages Group Plc (Unreported, 14 December 2001)
    The court will assume that by expressly choosing English law in a contract, the parties were indicating at least a preference to litigate in England: ‘The choice of the applicable law is, clearly, not so strong a feature as a choice of jurisdiction . .
  • Cited – USF Ltd -v- Aqua Technology Hanson NV/SA (Unreported, 30 January 2001)
    Extension of time to challenge jurisdiction of the court. . .
  • 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 – 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 . .
  • Cited – Carvill America Incorporated and Another -v- Camperdown UK Ltd. and others CA (Bailii, [2005] EWCA Civ 645, [2005] 2 Lloyd’s Rep 457)
    The claimant must bring evidence to establish that he has a cause of action which can be tried is that his claim has ‘a reasonable prospect of success,’ and this threshold is the same as if the claimant were resisting an application by the defendant . .
  • Cited – Burns-Anderson Independent Network Plc -v- Francis Henry Wheeler ([2005] 1 Lloyd’s Rep 580)
    (Bristol Mercantile Court) The power to extend time to challenge the court’s jurisdiction in a matter was assumed to exist. . .
  • Cited – Spiliada Maritime Corporation -v- Cansulex Ltd, The Spiliada HL ([1987] 1 AC 460, [1986] 3 All ER 843, [1986] 3 WLR 972, Bailii, [1986] UKHL 10)
    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 . .
  • Cited – Canada Trust Co and Others -v- Stolzenberg and Others (No 2) HL (Times 17-Oct-00, House of Lords, Gazette 02-Nov-00, House of Lords, House of Lords, Bailii, [2000] UKHL 51, [2000] 4 All ER 481, [2000] 3 WLR 1376, [2002] 1 AC 1, [2001] CLC 118, [2001] IL Pr 40)
    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 . .
  • Cited – Coast Lines Ltd -v- Hudig and Veder Chartering NV ([1971] 2 Lloyd’s Rep 39)
    Parties who contract to give the UK courts jurisdiction must be taken at least to have wanted a case to be heard by the UK courts. The fact that the foreign forum, notwithstanding the express choice of English law, may not apply English law, and may . .
  • Cited – Nima SARL -v- The Deves Insurance Public Company Ltd; The Prestrioka CA (Bailii, Gazette 03-Oct-02, Times 17-Oct-02, [2002] EWCA Civ 1132, [2003] 2 Lloyd’s Rep 327)
    A marine insurance contract was entered into for goods to be transported between two ports. A side note provided that cover was to start from the time the goods left the warehouse. The Act provided that the insurance was void from the time such a . .
  • Cited – BP Exploration Co (Libya) Ltd -v- Hunt ([1976] 3 All ER 879, [1976] 1 WLR 788)
    The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
    The court should be careful before describing as non-disclosure as material not included in an affidavit in . .
  • Cited – BP Exploration Operating Co Ltd -v- Chevron Transport (Scotland) HL (House of Lords, Bailii, Times 19-Oct-01, Gazette 22-Nov-01, [2001] UKHL 50, 2001 SLT 1394, 2002 SC (HL) 19, 2001 SCLR 1029, [2002] 1 All ER (Comm) 1, [2002] 1 LLR 77, 2001 GWD 33-1316, [2003] 1 AC 197, [2001] 3 WLR 949)
    A ship owned by the defenders caused substantial damage whilst moored at the claimant’s docks. The claim was made against different members of the defendants as they asserted and denied responsibility. The last company asserted that the claim was . .
  • Cited – Amin Rasheed Shipping Corp -v- Kuwait Insurance Co HL ([1984] AC 50, [1983] 2 All ER 884, [1983] 2 Lloyds Rep 365, [1983] 3 WLR 241)
    A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by . .
  • Cited – Ilyssia Compania Naviera SA -v- Bamaodah ‘The Elli 2′ CA ([1985] 1 Lloyd’s Rep 107)
    May LJ considered the creation of a contract by implication, saying: ‘no such contract should be implied on the facts of any given case unless it is necessary to do so: necessary, that is to say, in order to give business reality to a transaction . .
  • Cited – MacSteel Commercial Holdings (Pty) Ltd -v- Thermasteel V (Canada) Inc CA ([1996] CLC 1403)
    The South African and Canadian parties had contracted subject to the law of England. The Canadian company said that England remained inappropriate as the choice of forum.
    Held: Jurisdiction was declined.
    The distinction between the . .
  • Cited – du Pont du Nemours -v- Agnew CA ([1987] 2 Lloyd’s Rep 585)
    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 . .
  • Cited – Mitsubishi Corp -v- Alafouzos ([1988] 1 Lloyd’s Rep 191)
    Elements of English public policy may determine that an English Court is the appropriate forum to hear a case. Steyn J said: ‘one must keep constantly in mind that one is dealing with a head of public policy, which requires the Court to proceed with . .
  • Cited – The Magnum CA ([1989] 1 Lloyd’s Rep 47)
    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 . .

This case is cited by:

  • Cited – Sawyer -v- Atari Interactive Inc CA (Bailii, [2007] EWCA Civ 170, [2007] BusLR D34)
    The claimant designed games software and complained of infringements by the defendant of licensing agreements by failing to allow audits as required.
    Held: The defendant should be allowed to be heard on the standard practices for management of . .
  • 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 – Amin Rasheed Shipping Corp -v- Kuwait Insurance Co HL ([1984] AC 50, [1983] 2 All ER 884, [1983] 2 Lloyds Rep 365, [1983] 3 WLR 241)
    A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by . .

Brac Rent-A-Car International Inc; ChD 7 Feb 2003

References: Times 24-Feb-2003, [2003] EWHC 114 (Ch), Gazette 01-Apr-2003, [2003] 2 All ER 201
Links: Bailii
Coram: The Hon Mr Justice Lloyd
The company was incorporated in Delaware. Its main centre of business was within the UK. The company resisted an attempt to wind the company up here.
Held: The English courts had jurisdiction. The company’s contracts were subject to English law, their employees were here, and their contracts also were under UK law. Whilst article 3 did not expressly extend its ambit to companies incorporated outside the EU, it should be read to do so, because its scope was defined primarily by reference to the area of operations of the company, and such an application was not excluded.
Statutes: Council Regulation (EC) 1346/2000 3, Insolvency Act 1986 8(7)
This case is cited by:

  • Cited – In re The Salvage Association ChD (Times 21-May-03, Gazette 19-Jun-03, Bailii, [2003] EWHC 1028 (Ch), [2004] 1 WLR 174)
    The company wished to enter into a voluntary arrangement to protect itself from insolvency, but was an association incorporated by Royal Charter.
    Held: For the purposes of the Act, the association was to be treated as having a legal persona . .

In re Duke of Wellington; ChD 1947

References: [1947] Ch 506
Coram: Wynn-Parry J
The court was asked to settle the fate of Spanish estates which had been granted to the first Duke together with a title of nobility. To do this it had to consider the effect of Spanish law: ‘It would be difficult to find a harder task than that which faces me, namely, of expounding for the first time either in this country or Spain the relevant law of Spain as it would be expounded by the Supreme Court of Spain, which up to the present time has made no pronouncement on the subject, and having to base that exposition on evidence which satisfies me that on this subject there exists a profound cleavage of legal opinion in Spain, and two conflicting decisions of courts of inferior jurisdiction.’ and ‘The task of an English judge, who is faced with the duty of finding as a fact what is the relevant foreign law, in a case involving the application of foreign law, as it would be expounded in the foreign court, for that purpose notionally sitting in that court, is frequently a hard one; but it would be difficult to imagine a harder task than that which faces me, namely, of expounding for the first time either in this country or in Spain the relevant law of Spain as it would be expounded by the Supreme Court of Spain, which up to the present time has made no pronouncement on the subject, and having to base that exposition on evidence which satisfies me that on this subject there exists a profound cleavage of legal opinion in Spain, and two conflicting decisions of courts of inferior jurisdiction’.
This case is cited by:

  • Cited – R Griggs Group Ltd and others -v- Evans and others (No 2) ChD (Bailii, [2004] EWHC 1088 (Ch), Times 27-May-04, [2005] Ch 153, [2004] FSR 939)
    A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
  • Cited – Iran -v- Berend QBD (Bailii, [2007] EWHC 132 (QB))
    The Republic of Iran sought the return of a fragment of ancient Achaemenid relief in the possession of the defendant, saying that it was part of an ancient monument. The defendant said that she had bought it properly at an auction in Paris. The . .

Limit (No 3) Ltd and others -v- PDV Insurance Company Ltd; QBD 7 Nov 2003

References: [2003] EWHC 2632 (Comm)
Links: Bailii
Coram: The Hon Mr Justice Moore-Bick
When considering allowing proceedings here, the court must consider the the effect on related proceedings in another jurisdiction.
This case is cited by:

  • 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 . .
  • Appeal from – 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.

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

References: [1957] RPC 252
Coram: Diplock J
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.

Bouygues Offshore S.A. -v- Caspian Shipping Company & Others; Ultisol Transport Contractors Ltd [v[ Bouygues Offshore S.A. (No. 5); ComC 23 May 1997

References: [1997] 2 Lloyd’s Rep. 533, [1997] CLC 1497
Coram: Timothy Walker J
Conflict of laws – English exclusive jurisdiction clause in Towcon contract – Proceedings in South Africa in breach of clause – whether anti-suit injunction previously granted by Clarke J (see [1996] 2 LI Rep 140) should be discharged
This case cites:

This case is cited by:

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

References: [1999] ScotCS 2
Links: Bailii, ScotC
Coram: Lord MacFadyen
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.
This case is cited by:

Amin Rasheed Shipping Corp -v- Kuwait Insurance Co; HL 1983

References: [1984] AC 50, [1983] 2 All ER 884, [1983] 2 Lloyds Rep 365, [1983] 3 WLR 241
Coram: Lord Diplock, Lord Wilberforce
A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by any foreign court in the absence of some treaty providing for such recognition. Comity dictated that the judicial discretion to grant leave should be exercised with circumspection in cases where there existed an alternative forum, that is, the courts of the foreign country where the proposed defendant carried on business and whose jurisdiction would be recognised under English conflict rules. In exercising its discretion, it is not normally appropriate for the court to compare the quality of justice obtainable in a foreign forum which adopts a different procedural system (such as that of the civil law) with that obtainable in a similar case conducted in an English court.
Arbitration agreements are not covered by the Rome Convention, and their proper law is decided according to common law principles which require selection of the law of a country as the proper law governing the agreement.
Lord Wilberforce said: ‘It is not appropriate . . to embark upon a comparison of the procedures, or methods, or reputation or standing of the courts of one country as compared with those of another’.
This case cites:

  • 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 – 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 – The Magnum CA ([1989] 1 Lloyd’s Rep 47)
    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 . .

This case is cited by:

  • 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 – Halpern and Another -v- Halpern and others ComC (Bailii, [2006] EWHC 603 (Comm))
    The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
  • 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 – Lexington Insurance Co -v- AGF Insurance Ltd HL (Bailii, [2009] UKHL 40, Times, [2009] Bus LR 1452, [2009] 2 Lloyd’s Rep 508, [2010] 1 AC 180, [2009] 4 All ER 909, [2009] Lloyd’s Rep IR 675, [2009] 3 WLR 575, [2010] Env LR D1)
    The respondent insurers had been held liable in Washington, and had been granted indemnity against the appellants by the Court of Appeal. The insurance contract had been under the law of Pennsylvania, but that of the re-insurance under the law of . .
  • 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 – 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 . .

Melzer -v- Mf Global UK; ECJ 29 Nov 2012

References: C-228/11, [2012] EUECJ C-228/11, [2013] EUECJ C-228/11
Links: Bailii, Bailii
Coram: Jaaskinen AG
ECJ Jurisdiction in civil and commercial matters – Interpretation of Article 5(3) of Regulation (EC) No 44/2001 – Special jurisdiction in tort or delict – Cross-border participation of several people in the same allegedly harmful act – Possible option of establishing the jurisdiction of a court of a Member State with regard to a defendant domiciled in another Member State by reason of the place where an event giving rise to such act may has been committed by a purported joint participant or accomplice who is not being sued for damages.
Statutes: Regulation (EC) No 44/2001 5(3)

International Factors -v- Rodriguez; CA 1978

References: [1979] 1 QB 351, [1978] 3 WLR 877
Coram: Sir David Cairns and Bridge LJ, Buckley LJ
(Majority) Cheques were made payable to a company which had entered into a factoring agreement with the plaintiffs. The cheques were sent to the company in settlement of debts owed to the company but which had been assigned to the plaintiffs. The defendant, a Director of the company, paid the cheques into the company’s bank account.
Held: A mere contractual right to possession of cheques was insufficient to found an action in conversion, but the plaintiffs had more than a mere contractual right to possession, because they had equitable rights in the cheques.
Buckley LJ (minority) said that a contractual right to demand immediate delivery was a sufficient right to possession to give a status to sue in conversion.
Sir David Cairns said: ‘so a contractual right is not sufficient.
In my view, however, there was here something more than a contractual right. Clause 11(e) of the [Factoring] agreement provided both that the company was to hold any debt paid direct to the company in trust for the plaintiffs and immediately after receipt of a cheque, in the case of payment by cheque, to hand over that cheque to the plaintiffs. Taking together the trust which was thereby set up and the obligation immediately on receipt to hand over the cheque to the plaintiffs, I am satisfied that the plaintiffs had here a sufficient proprietary right to sue in conversion’.
Bridge LJ said: ‘It is manifest on the terms of clause 11(e) of the agreement that the intention of the parties was that the cheque itself, if payment was by cheque, should be handed on, endorsed if necessary to the plaintiffs, and that confers upon the plaintiffs, as it seems to me an immediate right to possession if any such cheque quite sufficient to support a cause of action in conversion against anyone who wrongfully deals with the cheque in any other matter.
I think that there is a contractual right here for the plaintiffs to demand immediate delivery of the cheque to them, and that that is a sufficient right to possession to give them a status to sue in conversion’.
This case is cited by:

The Magnum; CA 1989

References: [1989] 1 Lloyd’s Rep 47
Coram: Parker, LJ
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.’
This case is cited by:

  • 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 – Amin Rasheed Shipping Corp -v- Kuwait Insurance Co HL ([1984] AC 50, [1983] 2 All ER 884, [1983] 2 Lloyds Rep 365, [1983] 3 WLR 241)
    A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by . .

Distiller’s Co (Biochemicals) Ltd -v- Thompson; PC 19 Jan 1971

References: [1971] AC 458, [1971] UKPC 3, [1971] 1 All ER 694, [1971] 2 WLR 441
Links: Bailii
Coram: Lord Pearson, Lord Reid, Lord Morris, Lord Upjohn, Lord Donovan
(Australia) There had been a negligent failure in New South Wales to warn a pregnant woman of the dangers of taking the drug thalidimide.
Held: When looking at jurisdiction to hear a complaint of a tort, the court should look to where in substance the tort was committed. Lord Pearson said: ‘It is not the right approach to say that, because there was no complete tort until the damage occurred, therefore the cause of action arose wherever the damage happened to occur. The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question: where in substance did this cause of action arise?’
and it was ‘manifestly just and reasonable that a defendant should have to answer for his wrongdoing in the country where he did the wrong’.
Statutes: New South Wales Common Law Procedure Act 1899 18(4)
This case is cited by:

  • 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 – 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 . .

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

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

In re A (a Child) (Foreign contact order: Jurisdiction); FD 2 Dec 2003

References: Times 10-Dec-2003, Gazette 22-Jan-2004
Coram: Sumner J
A Spanish court had given the mother permission to remove the child to England and for contact. That order had been made final in Spain. The father now sought here to amend it, and to enforce the contact element.
Held: The Spanish proceedings had been concluded by the rejection of the father’s appeal in Spain. The convention allowed that further proceddings might be appropriate where children are concerned. However the father could still apply to enforce the order here or to apply within the UK’s own jurisdiction.

Islamic Republic of Pakistan -v- Zardari and others; ComC 6 Oct 2006

References: [2006] EWHC 2411 (Comm)
Links: Bailii
Coram: Lawrence Collins J
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 on the defendant companies abroad, outside a Lugano Convention country.
Held: The claim should proced. ‘There are plainly serious issues here which it is reasonable for the court to try. There is a strong case that the refurbishment of the Rockwood Estate can be traced to corrupt payments.’ The extended notion of a trust set out in Nabb Brothers was incorrect.
This case cites:

  • Cited – Grant -v- Gold Exploration and Development Syndicate Ltd CA ([1900] 1 QB 233)
    Secrecy is a badge of fraud. . .
  • 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 – In Re Banco Nacional De Cuba ChD (Times 18-May-01, Gazette 07-Jun-01, [2001] 1 WLR 2039)
    Where it was alleged that shares in a UK company had been sold at an undervalue, so as to allow a challenge in insolvency proceedings, the leave of the court was still required if the pleadings were to be served abroad. When the court considered . .
  • Cited – Agip (Africa) Ltd -v- Jackson ChD ([1990] 1 Ch 265, [1991] 3 WLR 11)
    The reference to ‘any wrongful act or omission’ in section 10 is not limited to torts or even to wrongs which were actionable at common law. ‘In paying or collecting money for a customer the bank acts only as his agent. It is otherwise, however, if . .
  • Cited – Lister & Co -v- Stubbs CA ((1890) 45 Ch D 1)
    It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .
  • Criticised – Nabb Brothers Ltd -v- Lloyds Bank International (Guernsey) Ltd ChD (Bailii, [2005] EWHC 405 (Ch))
    It is not necessary that all the acts giving rise to liability occurred within the jurisdiction. . .
  • Cited – Nycal (UK) Ltd -v- Lacey ([1994] CLC 12)
    . .
  • Cited – Mahesan -v- Malaysia Government Officers Co-operative Housing Society PC ([1979] AC 374, [1978] 2 All ER 405)
    The appellant, the director and employee of a housing society was bribed by a real estate agent, one Manickam, and the appellant then caused the society to buy land at an overvalue. The agent was sued for money had and received (for the amount of . .
  • Cited – Metal und Rohstoff AG -v- Donaldson Lufkin & Jenrette Inc CA ([1990] 1 QB 391, Gazette)
    The claimants sued for negligent advice and secured judgment. The defendant company became insolvent, and so the plaintiff now sued the US parent company alleging conspiracy. The court considered a tort of malicious prosecution of a civil claim, . .
  • Cited – ISC Technologies Limited -v- Guerin ([1992] 2 Lloyd’s Rep 430)
    A fraud was alleged by the defendant against the arms manufacturer Ferranti.
    Hoffman J said: ‘The question [on an application under Ord. 12 r. 8(1)(c) to discharge an order giving leave to serve a writ out of the jurisdiction] is . . whether . .
  • Cited – Carvill America Incorporated and Another -v- Camperdown UK Ltd. and others CA (Bailii, [2005] EWCA Civ 645, [2005] 2 Lloyd’s Rep 457)
    The claimant must bring evidence to establish that he has a cause of action which can be tried is that his claim has ‘a reasonable prospect of success,’ and this threshold is the same as if the claimant were resisting an application by the defendant . .
  • Cited – Spiliada Maritime Corporation -v- Cansulex Ltd, The Spiliada HL ([1987] 1 AC 460, [1986] 3 All ER 843, [1986] 3 WLR 972, Bailii, [1986] UKHL 10)
    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 . .
  • Cited – Limit (No 3) Ltd and others -v- PDV Insurance Company Ltd QBD ([2003] EWHC 2632 (Comm), Bailii)
    When considering allowing proceedings here, the court must consider the the effect on related proceedings in another jurisdiction. . .
  • Cited – Banque Indosuez -v- Ferromet Resources ([1993] BCLC 112)
    There is a general principle in favour of giving judicial assistance to foreign insolvency proceedings by preventing their disruption by the actions of individual creditors. . .
  • Cited – De Molestina -v- Ponton ([2002] 1 LL Rep 271)
    The claimants sought partial rescision of agreements of compromise of disputes within the etsate on the basis that agreement had been obtained by fraud.
    Held: Recission of part only of an agreement was not possible. . .
  • Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc -v- D B Thakerar & Co (a Firm); Ranga & Co (a Firm) and Sterling Financial Services Limited CA (Times 07-Aug-98, Gazette 29-Jul-98, Gazette 16-Sep-98, Bailii, Bailii, [1998] EWCA Civ 1187, [1999] 1 All ER 400, [1998] EWCA Civ 1249)
    Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
  • Cited – Polly Peck International Plc -v- Nadir and Others CA (Independent 31-Mar-93, Unreported, 17 March 1993)
    For a bank to be sued for breach of trust after receipt of funds, it was not necessary to show that the bank knew of the fraud, but rather that it knew the funds were trust funds, and that they were being misapplied. A Mareva injunction should be . .
  • Cited – Westdeutsche Landesbank Girozentrale -v- Islington London Borough Council HL (Times 30-May-96, [1996] 2 All ER 961, [1996] AC 669, Bailii, [1996] UKHL 12, [1996] 2 WLR 802, [1996] 5 Bank LR 341)
    Simple interest only was payable on a debt payable for an interest rate swap agreement which had been avoided as ultra vires the council’s powers. The failure of the swap agreement did not place the authority under any fiduciary duty to the . .
  • Cited – Attorney General for Hong Kong -v- Reid and Others PC (Gazette 26-Jan-94, Independent 24-Nov-93, Times 12-Nov-93, [1994] 1 AC 324, Bailii, [1993] UKPC 2)
    Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes . .
  • 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 – BP Exploration Co (Libya) Ltd -v- Hunt ([1976] 3 All ER 879, [1976] 1 WLR 788)
    The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
    The court should be careful before describing as non-disclosure as material not included in an affidavit in . .
  • Cited – Konamaneni -v- Rolls Royce Industrial Power (India) Limited ChD (Bailii, Times 31-Jan-02, [2001] EWHC Ch 470, [2002] 1 WLR 1269)
    The claimants founded their action on the assertion that the defendants had been corrupt in obtaining contracts in India. The defendants argued that the English courts had no jurisdiction. The claimants held various small shareholdings in a company . .
  • Cited – Amin Rasheed Shipping Corp -v- Kuwait Insurance Co HL ([1984] AC 50, [1983] 2 All ER 884, [1983] 2 Lloyds Rep 365, [1983] 3 WLR 241)
    A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by . .
  • Cited – Daraydan Holdings Limited, Cairn Estates Limited,Al-Thani, Theebah Estates Limited, Landmark Limited, Northwest Industries Limited -v- Solland International Limited, Solland Interiors Limited, Grazyna Solland ChD ([2004] EWHC 622 (Ch), Bailii, [2005] Ch 119)
    . .
  • Cited – Boscawen and Others -v- Bajwa and Others; Abbey National Plc -v- Boscawen and Others CA (Gazette 01-Jun-95, Independent 23-May-95, Times 25-Apr-95, [1996] 1 WLR 328, Bailii, [1995] EWCA Civ 15)
    The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halfax’s charge.
    Held: A mortgagee whose loan is used to repay . .
  • Cited – ISC Technologies Limited -v- Radcliffe (Unreported, December 7, 1990)
    It was alleged that a Mr Guerin had committed a fraud on the arms manufacturer Ferrari.
    Held: The constructive trust provision in RSC Order 11, r 1(1)(t) applied only if all the acts necessary to impose liability were committed in England, and . .

This case is cited by:

  • 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 . .

Novus Aviation Ltd -v- Onur Air Tasimacilik As; CA 27 Feb 2009

References: [2009] EWCA Civ 122, [2009] 1 CLC 850, [2009] 1 Lloyd’s Rep 576
Links: Bailii
Coram: Sir Stephen Brown, Wilson, Lawrence Collins LJJ
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 subject to English law.
Held: The appeal failed.
Lawrence Collins LJ said: I accept that at this stage it is by no means clear that any substantial issues of English law will arise at trial, and that the use of English in the negotiations is only one of the factors to be taken into account in determining the most appropriate forum. But the judge did not treat the governing law of the putative contract or the use of English in the documents and in the negotiations as in any sense conclusive. In my judgment he was entitled to come to the conclusion that Novus had shown clearly that England was the appropriate forum, and I am entirely unable to detect any error of principle or other ground for interfering with the judge’s exercise of discretion.
This case cites:

  • Cited – Spiliada Maritime Corporation -v- Cansulex Ltd, The Spiliada HL ([1987] 1 AC 460, [1986] 3 All ER 843, [1986] 3 WLR 972, Bailii, [1986] UKHL 10)
    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 . .
  • Cited – BP Exploration Co (Libya) Ltd -v- Hunt ([1976] 3 All ER 879, [1976] 1 WLR 788)
    The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
    The court should be careful before describing as non-disclosure as material not included in an affidavit in . .
  • Cited – Amin Rasheed Shipping Corp -v- Kuwait Insurance Co HL ([1984] AC 50, [1983] 2 All ER 884, [1983] 2 Lloyds Rep 365, [1983] 3 WLR 241)
    A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by . .
  • Cited – du Pont du Nemours -v- Agnew CA ([1987] 2 Lloyd’s Rep 585)
    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 . .
  • Cited – MacSteel Commercial Holdings (Pty) Ltd -v- Thermasteel V (Canada) Inc CA ([1996] CLC 1403)
    The South African and Canadian parties had contracted subject to the law of England. The Canadian company said that England remained inappropriate as the choice of forum.
    Held: Jurisdiction was declined.
    The distinction between the . .
  • Cited – Ilyssia Compania Naviera SA -v- Bamaodah ‘The Elli 2′ CA ([1985] 1 Lloyd’s Rep 107)
    May LJ considered the creation of a contract by implication, saying: ‘no such contract should be implied on the facts of any given case unless it is necessary to do so: necessary, that is to say, in order to give business reality to a transaction . .
  • Cited – Mitsubishi Corp -v- Alafouzos ([1988] 1 Lloyd’s Rep 191)
    Elements of English public policy may determine that an English Court is the appropriate forum to hear a case. Steyn J said: ‘one must keep constantly in mind that one is dealing with a head of public policy, which requires the Court to proceed with . .

This case is cited by:

  • 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 . .

Sengupta -v- Republic of India; 1983

References: [1983] ICR 221
Coram: Justice Browne-Wilkinson
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.
Statutes: State Immunity Act 1978 1(2)
This case is cited by:

  • Cited – United Arab Emirates -v- Abdelghafar and others EAT (Bailii, [1994] UKEAT 1025_93_2907, [1995] IRLR 243, [1995] ICR 65)
    At a preliminary hearing, when the respondent failed to appear, the tribunal decided that it had jurisdiction to hear a case brought by the claimant against the respondent despite the 1978 Act. The respondent sought to appeal out of time.
  • Cited – United Arab Emirates -v- Abdelghafar and Another EAT (Bailii, [1995] UKEAT 768_94_1007, [1995] ICR 65, [1995] IRLR 243)
    The appellant challenged a decision by the tribunal made in its absence that the tribunal had jurisdiction to hear against it a claim for unfair dismissal.
    Held: The tribunal had erred. Though Sengupta had been decided under common law, it . .

Hesperides Hotels Ltd -v- Aegean Turkish Holidays Ltd, Muftizahde; HL 1978

References: [1979] AC 508, [1978] 2 All ER 1168, [1978] 3 WLR 378, 142 JP 541, 122 Sol Jo 507
Coram: Lord Wilberforce
No English action lay for trespass to a hotel on the island of Cyprus, but an action did lie for the conversion of the chattels present in that same hotel. Questions of comity might well be involved, and it had to be for Parliament to change the law.
This case cites:

  • Appeal from – Hesperides Hotels Ltd & Another -v- Aegean Turkish Holidays Ltd & Another CA ([1978] 1 QB 205)
    An action was brought by the displaced owner of a hotel in Northern Cyprus taken over by the Turkish administration. . .
  • Cited – Practice Statement (Judicial Precedent) HL ([1966] 3 All ER 77, [1966] 1 WLR 1234)
    The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .

This case is cited by:

  • Cited – R Griggs Group Ltd and others -v- Evans and others (No 2) ChD (Bailii, [2004] EWHC 1088 (Ch), Times 27-May-04, [2005] Ch 153, [2004] FSR 939)
    A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
  • Cited – Austin -v- Mayor and Burgesses of The London Borough of Southwark SC ([2010] WLR (D) 156, WLRD, Bailii Summary, SC Summary, SC, Bailii, [2010] UKSC 28, [2010] 26 EG 90, [2010] PTSR 1311, [2010] 35 EG 94, 2010] 3 WLR 144)
    The appellant’s brother had been the secure tenant of the respondent Council which had in 1987 obtained an order for possession for rent arrears suspended on condition. The condition had not been complied with, but the brother had continued to live . .

Sim -v- Robinow; 1892

References: (1892) 19 R 665
Coram: Lord Kinnear
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 – 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 – Spiliada Maritime Corporation -v- Cansulex Ltd, The Spiliada HL ([1987] 1 AC 460, [1986] 3 All ER 843, [1986] 3 WLR 972, Bailii, [1986] UKHL 10)
    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 . .
  • 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 – 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 . .

Cairns -v- Modi; QBD 10 Nov 2010

References: [2010] EWHC 2859 (QB)
Links: Bailii
Coram: Tugendhat J
Tugendhat J said: ‘A claimant’s primary concern in a libel action is vindication, not damages for what has been suffered in the past. So the damage that has occurred before the action is brought may not give an indication of the importance of the claim. Vindication includes a retraction, or a verdict for the claimant, or a judgment to the effect that the allegation complained of is false . .’
This case is cited by:

  • Cited – Cammish -v- Hughes QBD (Bailii, [2012] EWHC 976 (QB))
    The defendant disputed whether the words complained of were defamatory, and whether the action was an abuse as being ‘not worth the candle’. The parties were in opposition over a proposed development of a biomass plant.
    Held: The court found . .

Hoffmann -v- Krieg; ECJ 4 Feb 1988

References: R-145/86, [1988] EUECJ R-145/86
Links: Bailii
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.

Land Berlin -v- Sapir And Others; ECJ 28 Nov 2012

References: C-645/11, [2012] EUECJ C-645/11, [2013] EUECJ C-645/11
Links: Bailii, Bailii
Coram: AG Trstenjak
ECJ Regulation (EC) No 44/2001 – Article 1(1) – Article 6(1) – Notion of ‘civil and commercial matter’ – Amount unduly paid by a public authority – Claim for repayment of the amount paid in judicial proceedings – Jurisdiction based on a factual connection – Closely connected claims – Defendant domiciled in a third country.

Stolzenberg and others -v- CIBC Mellon Trust Co Ltd and others; CA 30 Jun 2004

References: [2004] EWCA Civ 827
Links: Bailii
Coram: Lord Justice Ward Lady Justice Arden Sir William Aldous
The court considered the issue of the use of a strike out as a sanction for non-compliance with a court order.
Held: The approach of the court in a case considering relief for sanctions – exemplified by RC Residuals v Linton Fuel was bound to be different from that in Arrow Nominees v Blackledge, as there was no ‘unless’ order in the latter case. Her Ladyship stated: ‘The fact that an ‘unless’ order has been made inevitably means that there is an additional factor to consider. Had there been a relevant order in Arrow Nominees, that, too, would have been a factor. It is only a factor to be weighed in the balance. Moreover, compliance with orders of the court is not a question of judicial amore propre. It goes to the essence of the rule of law that parties subject to the court’s jurisdiction . . should comply with the court’s orders. The gravity of the matter of non-compliance is plainly increased where the non-compliance results from a conscious decision, as in this case. It follows, as Ward LJ said in High Tech Limited v Coventry City Council [1997] 1WLR 1666 at 1674 to 1675, that, ‘If a party intentionally or deliberately . . flouts the order, he can expect no mercy’. He has to persuade the court that in all the circumstances the injustice to him outweighs the interests of the administration of justice and the injury to the other party.’
This case cites:

  • Cited – Gluckstein -v- Barnes; Re Olympia Ltd, ex parte Gluckstein HL ([1900] AC 240, [1900] 69 LJ CH 385, [1900] 82 LT 393, [1900] 16 TLR 321, [1900] 7 Mans 321)
    Promoters of a company had acquired a property intending its resale through the sale of shares in the company. In doing so the original directors made a substantial profit which they did not disclose (though it was discoverable). The company became . .
  • Cited – R C Residuals Ltd (formerly Regent Chemicals Ltd) -v- Linton Fuel Oils Ltd CA (Times 22-May-02, Gazette 30-May-02, Bailii, [2002] EWCA Civ 911, [2002] 1 WLR 2782)
    The applicant had failed to comply with an unless order, delivering his expert evidence some 20 minutes late. The evidence had not been allowed. They appealed.
    Held: The claim was re-instated. This was not the first occasion of default. . .
  • See Also – CIBC Mellon Trust Company and others -v- Stolzenberg CA (Bailii, [2001] EWCA Civ 982)
    Application for leave to appeal, for an extension of time to appeal, and for a stay of execution pending the hearing of the appeal. . .
  • Appeal from – CIBC Mellon Trust Company and Others -v- Stolzenberg and Others ChD (Bailii, [2003] EWHC 13 (Ch))
    Application to set aside judgments entered on failure to comply with ‘unless’ orders.
    Held: Etherton J said: ‘The Court of Appeal has laid down guidance as to the approach of the Court when considering an application for relief from sanctions . .

This case is cited by:

  • Cited – Tisson -v- Telewest Communications Group Ltd EAT (Bailii, [2008] UKEAT 0607_07_1902)
    The claimant’s claim had been struck out for his failure to comply with an order to serve a list of documents.
    Held: The appeal failed. The principles applied under the Civil Procedure Rules should be applied in Employment Tribunals. The . .
  • See Also – Venulum Property Investments Ltd -v- Space Architecture Ltd and Others TCC (Bailii, [2013] EWHC 1242 (TCC))
    The claimant sought an extension of time to serve the Particulars of Claim. The solicitors said that they had misread the relevant Rules.
    Held: The solicitors had acted on the basis of the former practice, but the rules had been substantially . .

Antonio Gramsci Shipping Corp and Others -v- Recoletos Ltd and Others; ComC 12 Jul 2012

References: [2012] EWHC 1887 (Comm)
Links: Bailii
Coram: Teare J
The seventh defendant sought to be excused from the case denying the court’s jurisdiction. He had been a director.
Statutes: Brussels Regulation
This case cites:

This case is cited by:

  • 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 . .

Perry and Others -v- Serious Organised Crime Agency; SC 25 Jul 2012

References: [2012] UKSC 35, UKSC 2010/0182, [2012] 5 Costs LO 668, [2012] 3 WLR 379, [2012] WLR(D) 238
Links: Bailii, Bailii Summary, SC Summary, SC
Coram: Lord Phillips, President, Lady Hale, Lord Brown, Lord Judge, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Sir Anthony Hughes
The first appellant had been convicted of substantial frauds in Israel. He appealed against world wide asset freezing (PFO) and disclosure (DO) orders made against him. Neither the appellant, nor his offences were connected with the UK. A bank account within the UK had been disclosed.
Held: The appeals succeeded (Judge and Clarke dissenting). The Act could not have the full extra territorial effect suggested.
Lord Phillips summarised his conclusions: ‘(i) The courts below placed undue weight on the definition of ‘property’ in POCA.
(ii) The appellants have placed undue weight on the presumption that a statute does not have extraterritorial effect.
(iii) States have, by agreement, departed from the customary principles of international law in the case of confiscating the proceeds of crime. Of particular relevance is the 1990 Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. POCA must be read in the light of that Convention.
(iv) The Convention recognises that the courts of state A may make an order purporting to vest in the authorities of state A property that is situated in state B in circumstances where the property is the proceeds of the criminal conduct of a defendant subject to the criminal jurisdiction of state A.
(v) The Convention provides that effect should be given to such an order by confiscation proceedings in state B at the request of state A.
(vi) The answer to the issue raised by the PFO appeal depends upon an analysis of both the scheme and the language of POCA considered in the light of the Convention
(vii) Parts 2, 3 and 4 of POCA provide for (a) the imposition in personam of obligations in respect of property worldwide; (b) measures in rem to secure and realise property within the United Kingdom; and (c) requests to be made to other states to take such measures in respect of property within their territories.
(viii) Part 5 of POCA makes provision for in rem proceedings in respect of property within the United Kingdom but not outside it.
(ix) The scheme of POCA, as described above, accords with arrangements made by the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005/3181) (‘the Order’) for giving effect to requests from other states in relation to the confiscation of the proceeds of crime.
(x) The scheme of POCA as described above also accords with the requirements of a coherent international scheme for confiscation of the proceeds of crime and with principles of public international law. The converse is the case if SOCA’s submissions as to the extraterritorial effect of Part 5 are correct.
(xi) Section 286 is an anomalous enigma and cannot justify giving the provisions of POCA that relate to the rest of the United Kingdom a meaning different from that which they would bear in the absence of section 286.
(xii) For all these reasons the PFO appeal should be allowed.’
Sir Anthony Hughes said: ‘What cannot, as it seems to me, be the correct construction is that, as SOCA was obliged to submit, it has jurisdiction to seek a (mandatory) civil recovery order over property in China which is the product of a crime committed in China by an offender who has never left that country.’
Statutes: Proceeds of Crime Act 2002, 1990 Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime
This case cites:

  • At First instance – Serious Organised Crime Agency -v- Perry and Others Admn (Bailii, [2009] EWHC 1960 (Admin), [2010] 1 WLR 910, [2009] ACD 68)
    The respondents sought to have set aside a world wide asset freezing and associated orders obtained by SOCA against them. They said that the Court had no jurisdiction over them, and that the Agency was guilty of wilful non-disclosure. They first . .
  • Cited – Regina -v- Cuthbertson HL ([1981] AC 470, [1980] 2 All ER 401, [1980] 3 WLR 89, (1980) 71 Cr App R 148)
    With ‘considerable regret’, the power of forfeiture and destruction conferred on the court by section 27 of 1971 Act did not apply to offences of conspiracy, and could not be used to provide a means of stripping professional drug-traffickers of the . .
  • Cited – Government of the Republic of Spain -v- National Bank of Scotland SCS (Bailii, [1939] ScotCS CSIH_1, 1939 SLT 317, 1939 SC 413, (1939) 63 Ll L Rep 330)
    Lord Justice-Clerk Aitchison considered a provision claiming extra territorial effect, and said: ‘such ‘decrees’ of a foreign country as purport to have extra-territorial effect, and to attach property in a subject situated, and at a time when it is . .
  • Cited – Societe Eram Shipping Company Ltd -v- Compagnie International De Navigation and Others CA (Gazette 20-Sep-01, Bailii, [2001] EWCA Civ 1317, [2001] All ER (Comm) 721, [2001] 2 Lloyd’s Rep 627, [2002] CLC 60, [2001] 2 LLR 627, [2001] CP Rep 112)
    Judgment creditors obtained a garnishee order nisi, but the bank objected to the order being made absolute. The account was in Hong Kong, where there was a real danger, that the law would not relieve them of their obligation to the account holders . .
  • Cited – Societe Eram Shipping Company Limited and others -v- Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL (House of Lords, Times 13-Jun-03, Bailii, [2003] UKHL 30, Gazette 17-Jul-03, [2003] 3 WLR 21, [2003] 3 All ER 465, [2003] 2 Lloyd’s Rep 405, [2003] ILPr 36, [2003] 2 All ER (Comm) 65, [2004] 1 AC 260, [2003] 1 CLC 1163, [2003] 2 LLR 405)
    The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
    Held: A third party debt order is a proprietary remedy operating . .
  • Cited – Pattni -v- Ali and Another PC (Bailii, [2006] UKPC 51, [2007] 2 AC 85)
    (Isle of Man (Staff of Government Division)) The Board considered the possibility of extra-territorial jurisdiction over property.
    Held: It should generally be expected that an order having the effect of transferring a real right of ownership . .
  • Appeal from – Perry and Others -v- Serious Organised Crime Agency CA (Bailii, [2011] EWCA Civ 578, [2011] Lloyds Rep FC 387, [2011] 3 Costs LO 292, [2011] CP Rep 36, [2011] 4 All ER 470, [2011] 1 WLR 2817)
    The court was asked ‘Does a court in England and Wales have the power under Part 5 of the Proceeds of Crime Act 2002 to make a recovery order in favour of the trustee for civil recovery in respect of recoverable property outside this jurisdiction, . .
  • Appeal from – Serious Organised Crime Agency -v- Perry and Others CA (Bailii, [2010] EWCA Civ 907, [2010] 1 WLR 542, [2010] CP Rep 43, [2010] Lloyds Rep FC 606)
    The court heard appeals against disclosure orders made under the 2002 Act. The appellants argued that neither the offence, nor the assets nor the appellants themselves were within the jurisdiction. . .
  • Cited – King -v- Director of the Serious Fraud Office HL ([2009] 2 All ER 223, [2009] 2 Cr App Rep 2, Bailii, [2009] UKHL 17, Times, [2009] 1 WLR 718)
    Authorities in South Africa sought assistance in recovering what they said were assets acquired in England and Scotland with the proceeds of crime in South Africa, and in particular a restraint order, an assets declaration and other investigative . .
  • Appeal From – Serious Organised Crime Agency -v- Perry Admn (Bailii, [2010] EWHC 1711 (Admin), [2011] 1 Costs LR 22, [2010] 1 WLR 2761)
    The first defendant’s bankers had heard of his conviction for fraud in Israel and had notified his and associated bank accounts to SOCA. He now appealed against ex parte world wide asset freezing (PFO) and disclosure orders (DO) made againt him. The . .

This case is cited by:

  • Cited – Waya, Regina -v- SC ([2012] WLR(D) 324, [2012] 3 WLR 1188, Bailii Summary, Bailii, [2012] UKSC 51, SC Summary, SC, UKSC 2010/0088, [2013] HRLR 5, [2013] 1 AC 294, [2013] Crim LR 256, [2013] 1 All ER 889)
    The defendant appealed against confiscation orders made under the 2002 Act. He had bought a flat with a substantial deposit from his own resources, and the balance from a lender. That lender was repaid after he took a replacement loan. He was later . .

AIG Capital Partners Inc and Another -v- Kazakhstan; ComC 20 Oct 2005

References: [2005] EWHC 2239 (Comm), [2006] 1 All ER 284, [2006] 1 WLR 1420
Links: Bailii
Coram: Aikens J
Aitkens J said as to the United Nations Convention on Jurisdictional Immunities of States and Their Property that it though not in force, and not ratified by the United Kingdom: ‘its existence and adoption by the UN after the long and careful work of the International Law Commission and the UN Ad Hoc Committee on Jurisdictional Immunities of States and Their Property, powerfully demonstrates international thinking on the point.’
This case is cited by:

  • Cited – Jones -v- Ministry of Interior for the Kingdom of Saudi Arabia and others HL (Bailii, Bailii, [2006] UKHL 26, [2007] 1 AC 270, [2007] 1 All ER 113, [2006] 2 WLR 1424)
    The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
  • Cited – SerVaas Incorporated -v- Rafidian Bank and Others SC (Bailii, [2012] UKSC 40, [2012] 3 WLR 545, [2012] WLR(D) 257, Bailii SC, UKSC 2011/0247, SC Summary, SC)
    The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .

Football Dataco Ltd and Others -v- Sportradar Gmbh and Another; ChD 17 Nov 2010

References: [2010] EWHC 2911 (Ch), [2011] ECDR 2, [2011] FSR 10, [2011] ECC 16
Links: Bailii
Coram: Floyd J
The claimants complained of alleged breach of database rights claimed by the claimants in their lists of football match schedules.
Statutes: Directive 96/9/EC on the Legal Protection of Databases
This case is cited by:

Lord Portarlington -v- Soulby; 10 Dec 1833

References: [1834] 3 My & K 104, [1833] EngR 932, (1833) 6 Sim 356, (1833) 58 ER 628 (A)
Links: Commonlii
The court of appeal recognised its ability to restrain the commencement of proceedings in other courts and jurisdictions as to the same matter. The power was grounded not upon ‘any pretension to the exercise of judicial rights abroad’ but upon the fact that the party being restrained is subject to the in personam jurisdiction of the English court.
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 . .

Dresser UK -v- Falcongate Freight Management Ltd; The Duke of Yare; CA 1992

References: [1992] 5 CL 373, [1992] QB 502
Coram: Bingham LJ
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 preference’.
Statutes: Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
This case is cited by:

  • Distinguished – 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 – Speed Investments Ltd and Another -v- Formula One Holdings Limited and Others (No 2) ChD (Times 13-Aug-04, )
    The defendants sought a stay of the action, arguing that proceedings had begun first in Switzerland.
    Held: An English court became seised of an action for the purposes of the Convention at the time when the proceedings were served. Under the . .
  • Cited – Nussberger and Another -v- Phillips and Another (No 4) CA (Bailii, [2006] EWCA Civ 654, Times 17-Jul-06, [2006] 1 WLR 2598, Gazette 08-Jun-06)
    A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
  • Considered – 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 – Canada Trust Co and Others -v- Stolzenberg and Others (No 2) HL (Times 17-Oct-00, House of Lords, Gazette 02-Nov-00, House of Lords, House of Lords, Bailii, [2000] UKHL 51, [2000] 4 All ER 481, [2000] 3 WLR 1376, [2002] 1 AC 1, [2001] CLC 118, [2001] IL Pr 40)
    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 . .
  • Cited – Phillips and Another -v- Symes and others HL (Bailii, [2008] UKHL 1, [2008] 2 All ER 537, [2008] 1 All ER (Comm) 918, [2008] 1 WLR 180, [2008] 1 CLC 29, [2008] 1 Lloyd’s Rep 344)
    Various parties had sought relief in the English courts and in Switzerland after an alleged fraud. There had been a mistake in service of the proceedings in England. The high court had dispensed with service an backdated the effect of the order to . .

Phillips and Another -v- Symes and others; HL 23 Jan 2008

References: [2008] UKHL 1, [2008] 2 All ER 537, [2008] 1 All ER (Comm) 918, [2008] 1 WLR 180, [2008] 1 CLC 29, [2008] 1 Lloyd’s Rep 344
Links: Bailii
Coram: Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Mance
Various parties had sought relief in the English courts and in Switzerland after an alleged fraud. There had been a mistake in service of the proceedings in England. The high court had dispensed with service an backdated the effect of the order to pre-date the Swiss proceedings. The court of appeal set aside the backdating of the order. The House was asked whether in the light of the Swiss proceedings, the English court should decline jurisdiction.
Held: The appeal succeeded. The court at first instance had not been backdating service but validating a defective service, and ‘the rule surely is that the English court is seised of proceedings at the date of effective service, whatever that date may eventually be declared to have been.’
Statutes: Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988 21, Civil Jurisdiction and Judgments Act 1982
This case cites:

Garthwaite -v- Garthwaite; CA 1964

References: [1964] P 356
Coram: Diplock LJ
The court discussed what was constitutive jurisdiction: ‘The ‘jurisdiction’ of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of those factors.’
This case cites:

  • Approved – Guaranty Trust Co of New York -v- Hannay & Co CA ([1915] 2 KB 536)
    A claimant does not need to have a subsisting cause of action against a defendant before the court will grant a claimant a declaration. The court considered the ambiguity in the meaning of the word ‘jurisdiction': ‘The first and, in my opinion, the . .

This case is cited by:

  • 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 . .
  • 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 . .

Somafer Sa -v- Saar-Ferngas Ag; ECJ 22 Nov 1978

References: R-33/78, [1978] EUECJ R-33/78
Links: Bailii
ECJ 1. The Convention of 27 September 1968 must be interpreted having regard both to its principles and objectives and to its relationship with the treaty. The question whether the words and concepts used in the convention must be regarded as having their own independent meaning and as being thus common to all the contracting states or as referring to substantive rules of the law applicable in each case under the rules of conflict of laws of the court before which the matter is first brought must be so answered as to ensure that the convention is fully effective in achieving the objects which it pursues.
2. The need to ensure legal certainty and equality of rights and obligations for the parties as regards the power to derogate from the general jurisdiction of article 2 requires an independent interpretation, common to all the contracting states, of the concepts in article 5(5) of the convention of 27 September 1968.
The concept of branch, agency or other establishment implies a place of business which has the appearance of permanency, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent body, the head office of which is abroad, do not have to deal directly with such parent body but may transact business at the place of business constituting the extension.
The concept of ‘operations’ comprises :
– actions relating to rights and contractual or non-contractual obligations concerning the management properly so-called of the agency, branch or other establishment itself such as those concerning the situation of the building where such entity is established or the local engagement of staff to work there;
– actions relating to undertakings which have been entered into at the above-mentioned place of business in the name of the parent body and which must be performed in the contracting state where the place of business is established and also actions concerning non-contractual obligations arising from the activities in which the branch, agency or other establishment within the above defined meaning, has engaged at the place in which it is established on behalf of the parent body.
It is in each case for the court before which the matter comes to find the facts whereon it may be established that an effective place of business exists and to determine the legal position by reference to the concept of ‘operations’ as above defined.
This case is cited by:

  • 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 . .

Gomez and others -v- Vives; CA 3 Oct 2008

References: [2008] EWCA Civ 1065
Links: Bailii
Coram: Lawrence Collins LJ, Jacobs LJ
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 the basic principle of domicile in Article 2, the provisions of Article 5 are to be construed restrictively. In this case, the beneficiary was being sued for overpayment as part of the trust. ‘It would be quite inconsistent with the restrictive approach to the special head of jurisdiction in Article 5(6) to read the words ‘as trustee’ in the expansive way, in which they would have to be read, to produce a result in favour of the claimants.’ Even if the powers on which the claim was based are classified as fiduciary, the first defendant is not being sued in the second claim ‘as a trustee . . of a trust created . . by a written instrument’ for the purposes of Article 5(6).
Statutes: Council Regulation (EC) 44/2001 2 5(6), Jurisdiction and Judgments Act 1982
This case cites:

  • Appeal from – Gomez and others -v- Encarnacion Gomez-Monche Vives and others ChD (Bailii, [2008] EWHC 259 (Ch), [2008] 3 WLR 309)
    The court had no jurisdiction in a claim by the three claimants against their mother, the first defendant, arising out of a trust created by their father. The family was Spanish and the trust was expressed to be governed by English law. The . .
  • Cited – Duke of Marlborough -v- Attorney General ([1945] Ch 78)
    The proper law of a marriage settlement ‘can only be the law by reference to which the settlement as made and which was intended by the parties to govern their rights and liabilities’. Though the governing law may be changed with the concurrence of . .
  • Cited – In re Diplock’s estate CA ([1948] Ch 465)
    After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
    Held: The origin of the equitable rules of tracing were . .
  • Cited – Bonython -v- Commonwealth of Australia PC ([1951] AC 201)
    Lord Simonds defined the proper law governing a contract to be: ‘the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connection.’ . .
  • Mentioned – Ministry of Health -v- Simpson; In re Diplock dec HL ([1951] AC 251, (1950) 2 All ER 1137)
    The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
    Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . .
  • Cited – Reisch Montage AG -v- Kiesel Baumaschinen Handels GmbH (Area Of Freedom, Security & Justice) ECJ (C-103/05, Bailii, [2006] EUECJ C-103/05, [2006] ECR I-6827)
    Europa Regulation (EC) No 44/2001 – Article 6(1) – Cases where there is more than one defendant – Action brought in a Member State against a person domiciled in that State who is the subject of bankruptcy . .
  • Cited – Chellaram and Another -v- Chellaram and others (No 2) ChD (Bailii, [2002] EWHC 632 (Ch), [2002] 3 All ER 17)
    One of the defendants had not been properly served by posting the proceedings to an address at which he stayed on his very occasional visits to London. The proceedings had not been issued for the purposes of service abroad, because at the time of . .
  • Cited – In re United Railways of the Havana -v- Regla Warehouses Ltd CA ([1960] Ch 52)
    There had been a financing transaction by way of a lease by a Pennsylvania corporation, as trustee for foreign bondholders, to an English company carrying on business in Cuba, of assets in Cuba. By a Cuban decree the assets were transferred to the . .
  • 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 – 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 . .
  • Cited – In re United Railways of Havana and Regla Warehouses Ltd; Tomkinson -v- First Pennsylvania Banking and Trust Co HL ([1961] AC 1007, [1960] 2 WLR 969, [1960] 2 All ER 332)
    A sum was held to be due from that company in US dollars under a lease and another agreement which were both governed by the law of Pennsylvania.
    Held: The sum provable in the liquidation of the company was to be converted at the rates of . .
  • Cited – Mettoy Pension Trustees -v- Evans ChD ([1990] 1 WLR 1587)
    Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
  • Cited – Re Freiburg Trust ([2004] JRC 056, (2003-04) 6 ITELR 1078)
    (Jersey) . .

Commission -v- Cyprus (Jurisdiction And The Enforcement Of Judgments In Civil And Commercial Matters); ECJ 15 Mar 2012

References: C-292/10, [2012] EUECJ C-292/10
Links: Bailii
ECJ Jurisdiction and the enforcement of judgments in civil and commercial matters – Public notification of legal documents – Lack of known domicile or place of abode of the defendant in the territory of a Member State – Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ – Infringement of the right to protection of personality liable to have been committed by the publication of photographs on the internet – Place where the harmful event occurred or may occur

VTB Capital Plc -v- Nutritek International Corp and Others; ChD 29 Nov 2011

References: [2011] EWHC 3107 (Ch)
Links: Bailii
Coram: Arnold J
The appellant bank had granted very substantial lending facilities to the defendant companies, and now alleged fraudulent misrepresentation. The defendants now sought to have the service set aside. The claimants also sought permission to amend the pleadings to set aside the veil of incorporation to add three further defendants.
Held: Leave was set aside. The application to amend was refused. The evidence did not establish a real risk of dissipation of assets by the fourth defendant and the original order was tainted by material non-disclosure by the claimant to the court.
This case is cited by:

  • At First Instance – 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 . .
  • Appeal from – VTB Capital Plc -v- Nutritek International Corp and Others CA (Bailii, [2012] EWCA Civ 808, [2012] WLR(D) 181, WLRD, [2012] 2 Lloyd’s Rep 313, [2012] 2 CLC 431, [2012] 2 BCLC 437)
    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 – 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 . .

Masri -v- Consolidated Contractors International (UK) Ltd; CA 24 Oct 2005

References: Times 27-Oct-2005, [2005] EWCA Civ 1436, [2006] 1 WLR 830
Links: Bailii
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 defendants in the earlier proeedings was what mattered. That these were new proceedings did not defeat the court’s jurisdiction.
Statutes: Council Regulation (EC) 44/2001
This case cites:

  • Appeal from – Masri -v- Consolidated Contractors International (UK) Ltd ComC (Bailii, [2005] EWHC 944 (Comm))
    . .
  • 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 . .
  • Cited – Gascoigne -v- Pyrah CA ([1994] 1 LPr 82, Times 26-Nov-91)
    The court was concerned with conflicts between different jurisdictions dealing with related matters. Hirst LJ said: ‘Conflicting findings of fact, on the other hand, are virtually impossible to reconcile if different judges in different . .

This case is cited by:

Alfred Dunhill Ltd -v- Diffusion Internationale De Maroquinerie De Prestige Sarl; QBD 1 Feb 2001

References: [2001] EWHC 2002 (QB), [2001] CLC 949, [2002] ILPr 1, [2002] 1 All ER (Comm) 950
Links: Bailii
Coram: Rokison QC J
The words of Article 5(3) are to be given an autonomous meaning and are not to be interpreted by reference to the definition of a cause of action under the particular national law concerned.
Statutes: Brussels Convention 1968
This case is cited by:

  • Cited – Trident Turboprop (Dublin) Ltd -v- First Flight Couriers Ltd CA (Bailii, [2009] EWCA Civ 290, Times)
    The appellant entered into two aircraft leasing agreements but were unable to maintain payments. They appealed against rejection of their argument that the agreements were not exempt from the controls under the 1977 Act by being international supply . .

Egon Oldendorff -v- Libera Corporation; 1996

References: [1996] I Lloyd’s Law Rep 380
Coram: Clarke J
Conflict of laws – ‘It is sufficient to say that the party relying upon art. 3 must demonstrate with reasonable certainty that the parties have chosen a particular law as the governing or applicable law. ‘
This case is cited by:

Dubai Bank Ltd -v- Abbas and Another; CA 17 Jul 1996

References: [1997] ILPr 308, [1996] EWCA Civ 1342
Links: Bailii
Coram: Simon Brown, Saville, Aldous LJJ
The defendant sought to set aside service of a claim outside the jurisdiction, saying that no good and arguable case had been made out that he was domiciled in the UK. The bank said that he owned a house in London.
Held: Although domicile is defined in terms of ‘residence’, this concept must be construed in accordance with its ordinary meaning and connotes a settled or usual place of abode. There was no evidence to rebut the Defendant’s claim that he usually stayed with friends or in a hotel. There was thus no ‘good arguable case’ that he owned a property here or that he was registered as an occupier for any purpose.
Statutes: Civil Jurisdiction and Judgments Act 1982 41 42 43 44 45 46
This case is cited by:

  • Cited – High Tech International Ag and others -v- Deripaska QBD (Bailii, [2006] EWHC 3276 (QB), [2007] EMLR 449)
    The clamants brought actions for damages for torts said to have been committed by the defendants in Russia. They said that the defendant was domiciled within the jurisdiction under the EU Regulation.
    Held: Domicile for the issue of . .

Knight -v- Axa Assurances; QBD 24 Jul 2009

References: [2009] EWHC 1900 (QB), [2009] Lloyds Rep IR 667
Links: Bailii
Coram: Sharp J
The claimant was injured in a car accident in France. The defendant insurer said that the quantification of damages was to be according to French law and the calculation of interest also. The claimant said that English law applied.
Held: The assessment of damages is a procedural matter, and is governed by the law of the forum in which the case is brought. Articles 9(1)(b) and 11(2) of Brussels I (Council Regulation 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters) entitle an injured party to sue an insurer direct on matters relating to insurance, in the place where the injured party is domiciled, provided that direct action is permitted under national law. Both French and English law are potentially relevant to the award of pre-judgment interest on those damages, depending on the facts. Damages are to be assessed by reference to English Law.
Statutes: Brussels I (Council Regulation 44/2001, Supreme Court Act 1981 35A
This case cites:

  • Cited – Raffelsen Zentralbank Osterreich Ag -v- Five Star General Trading Llc and Others CA (Times 21-Feb-01, Gazette 01-Mar-01, Bailii, [2001] EWCA Civ 68, [2001] CLC 84, [2001] 3 All ER 257, [2001] Lloyds Rep IR 460, [2001] 1 LLR 597, [2001] 1 Lloyd’s Rep 597, [2001] 1 All ER (Comm) 961, [2001] 2 WLR 1344, [2001] 1 QB 825)
    An assigned marine insurance policy was subject to a claim. The issue was the ability of an assignee to claim as a claim in contract where the proper law was that under which the contract was made, or a claim of an intangible right to claim against . .
  • Cited – Maher and Another -v- Groupama Grand Est QBD (Bailii, [2009] EWHC 38 (QB))
    The parties asked as to whether after a car accident in France the the assessment of damages and the calculation of pre-judgment interest was to be calculated according to French law. . .
  • Cited – FBTO Schadeverzekeringen -v- Jack Odenbreit ECJ (C-463/06, Bailii, [2007] EUECJ C-463/06, [2008] ILPr 12, [2008] 2 All ER (Comm) 733, [2008] Lloyd’s Rep IR 354, (2007) ECR 1-11321)
    ECJ Regulation (EC) No 44/2001 – Jurisdiction in matters relating to insurance – Liability insurance – Action brought by the injured party directly against the insurer – Rule of jurisdiction of the courts for the . .
  • 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 – Criminal proceedings against Ruiz Bernaldez ECJ (Times 06-May-96, Europa, C-129/94, Bailii, [1996] EUECJ C-129/94, [1996] I ECR 1829)
    Europa In the preliminary-ruling procedure under Article 177 of the Treaty, it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to . .
  • Cited – Mendes Ferreira and Delgado Correia Ferreira -v- Companhia de Seguros Mundial Confianca SA ECJ (Europa, C-348/98, Europa, Bailii, [2000] EUECJ C-348/98, [2000] ECR 1-6711)
    Europa Compulsory insurance against civil liability in respect of motor vehicles – Directives 84/5/EEC and 90/232/EEC – Minimum amounts of cover – Type of civil liability – Injury caused to a member of the family . .
  • Cited – Macmillan Inc -v- Bishopsgate Investment Trust Plc and Others (No 3) CA (Ind Summary 11-Dec-95, Gazette 29-Nov-95, Times 07-Nov-95, [1996] 1 WLR 387, Bailii, [1995] EWCA Civ 55, [1996] 1 All ER 585)
    The question of ownership of a company is to be decided according to law of country where company is incorporated. Conflict of laws rules are to be used to look to the issue in the case not the cause of action.
    Staughton LJ said: ‘In any case . .
  • Cited – Macmillan Inc -v- Bishopsgate Investment Trust Plc and Others (No 3) ChD ([1995] 1 WLR 978, [1995] 3 All ER 747)
    Millett J described the case of Norris -v- Chambres: ‘A suit in equity was instituted between two parties resident in England to enforce an equitable lien to land situate abroad. The court declined to entertain the suit. It held that, although a . .
  • Cited – Jefford -v- Gee CA ([1970] 2 QB 130, Bailii, [1970] EWCA Civ 8, [1970] 1 All ER 1202, [1970] 1 Lloyd’s Rep 107, [1970] 2 WLR 702)
    The courts of Scotland followed the civil law in the award of interest on damages. The court gave examples of the way in which they apply the ex mora rule when calculating the interest payable in a judgment. If money was wrongfully withheld, then . .
  • Cited – Midland International Trade Services -v- Al Sudairy ChD (Unreported, 11th April 1990)
    The court had power to order the payment of interest on a judgment of a court in Saudi Arabia even though a Saudi court would have applied Sharia law. That law follows the teaching in the Koran forbidding the payment or receipt of interest. . .
  • Cited – Kuwait Oil Tanker Company SAK and another -v- Bader and others (Unreported, 17 December 1998)
    . .

This case is cited by:

  • Cited – Maher and Another -v- Groupama Grand Est CA (Bailii, [2009] EWCA Civ 1191, [2010] 1 WLR 1564, [2010] RTR 10, [2009] 2 CLC 852, [2010] 2 All ER 455, [2009] All ER (D) 143)
    Two English claimants respectively suffered injury in a French road accident. They brought claims for damages against the French insurer of the other driver. Judgment on liability was entered by consent. There were issues as to the assessment of . .

Societe Nationale Industrielle Aerospatiale v Lee Kui Jak and another; PC 1987

References: [1987] 1 AC 871
Coram: Lord Goff of Chieveley
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.’
This case is cited by:

  • Cited – National Westminster Bank -v- Utrecht-America Finance Company CA (Bailii, [2001] EWCA Civ 658, [2001] 3 All ER 733)
    An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
  • Cited – Airbus Industrie G I E -v- Patel and Others HL (Times 06-Apr-98, House of Lords, Gazette 07-May-98, Bailii, [1998] UKHL 12, [1999] 1 AC 119, [1998] 2 All ER 257, [1998] 2 WLR 686)
    An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
  • Cited – Al-Bassam -v- Al-Bassam CA (Bailii, [2004] EWCA Civ 857, Times 22-Jul-04)
    The claimant sought administration of her husband’s estate according to his domicile in England. The defendant claimed the estate under Islamic law, and that there had been no marriage, and that he had been domiciled in Saudi Arabia.
    Held: The . .
  • Cited – OT Africa Line Ltd -v- Magic Sportswear Corporation and others CA (Bailii, [2005] EWCA Civ 710, Times 21-Jun-05)
    The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
  • Cited – Harms Offshore AHT ‘Taurus’ Gmbh & Co KG -v- Bloom and Others CA (Bailii, [2009] EWCA Civ 632, Times, [2009] Bus LR 1663, [2010] 1 Ch 187, [2010] 2 WLR 349)
    The court had granted to the liquidators of a company a mandatory injunction requiring the appellant German companies to attempt to obtain the release of assets from attachment by the court in new York.
    Held: The appeal was dismissed. The . .

John Pfeiffer Pty Limited -v- Rogerson; HCA 16 Apr 1999

References: [2000] HCA 36, (2000) 203 CLR 503
Links: Austlii
(High Court of Australia) The double actionability rule should be discarded with regard to claims brought in an Australian court in respect of a civil wrong arising out of acts or omissions that occurred wholly within one or more of the law areas of the Commonwealth of Australia.
This case is cited by:

  • Cited – Harding -v- Wealands CA (Bailii, [2004] EWCA Civ 1735, Times 05-Jan-05, [2005] 1 WLR 1539)
    The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
    Held: The general rule in section 11 was not to . .

Oak Leaf Conservatories Ltd -v- Weir and Another; TCC 24 Oct 2013

References: [2013] EWHC 3197 (TCC)
Links: Bailii
Coram: Stuart-Smith J
The claimant conservatory installers claimed wrongful repudiation of the contract by the defendant householders. The defendants, living in Ayrshire, said that the English courts had no jurisdiction over the contract.
Held: The court gave its reasons for accepting the defendants’ submission. The mere fact that Oak Leaf’s primary focus in advertising is on England did not correctly reflect the statutory test or determine the outcome of the application. While the primary focus of the claimant’s business may be in England and most of the business had been in England, it was apparent from its websites and its overall activity (including the acceptance of previous projects in Scotland as well as that of the Weirs) that Oak Leaf was envisaging doing business with consumers domiciled in Scotland. Accordingly, the action must be brought in Sotland.
Statutes: Civil Jurisdiction and Judgments Act 1982 16(1) Sch 4
This case cites:

  • Applied. – Peter Pammer -v- Reederei Karl Schluter GmbH & Co KG etc ECJ (Bailii, [2010] EUECJ C-144/09, [2012] Bus LR 972, [2012] All ER (EC) 34, [2011] 2 All ER (Comm) 888, [2010] ECR I-12527)
    ECJ (Grand Chamber) Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Article 15(1)(c) and (3) – Jurisdiction over consumer contracts – Contract for a voyage by freighter – Concept of . .

Brown and Others -v- Innovatorone Plc and Others; ComC 28 Jul 2010

References: [2010] EWHC 2281 (Comm), [2011] ILPr 9
Links: Bailii
Coram: Hamblen J
The claimants alleged breach of trust by the defendants in their promotion of an investment scheme which went on to fail. One defendant, a Swiss bank now sought a declaration that the court had no jurisdiction over it.
Held: The defendant’s application succeeded: ‘t has not been established that the claims sought to be made against MFC are so closely connected with the claims made against the other defendants in these proceedings that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. Accordingly, the requirements of Article 6(1) have not been shown to be satisfied and jurisdiction must be declined. ‘
This case cites:

  • See Also – Brown and Others -v- Innovatorone Plc and Others ComC (Bailii, [2009] EWHC 1376 (Comm))
    The claimants served proceedings by fax. The defendants denied that it was effective saying that they had not confirmed that they were instructed to accept service or that as required by the rules they had confirmed that they would accept service by . .

This case is cited by:

  • See Also – Brown and Others -v- Innovatorone Plc and Others ComC (Bailii, [2012] EWHC 1321 (Comm))
    The claimants had been advised to invest in a scheme promoted by the defendants with the assistance of their solicitors. On the falure of the scheme they now sought relief alleging inter alia, breach of trust.
    Held: The claims failed. . .
  • See Also – Brown and Others -v- Innovatorone Plc and Others CA (Bailii, [2012] EWCA Civ 1587)
    The claimants appealed against rejection of their claims of breach of trust against the respndents and their solicitors in the promotion of investment semes which went on to fail. . .

Bank of Baroda -v- Vysya Bank Limited; ChD 1994

References: [1994] 2 Lloyd’s Rep 87
Coram: Mance J
An Indian buyer had agreed to purchase a consignment of Latvian steel through its London office. The buyer instructed Vysya to issue a credit in favour of the seller beneficiary. The credit was confirmed by the Bank of Baroda’s London office. The seller presented the documents stipulated under the credit to Bank of Baroda and was paid. The Bank of Baroda then sent the documents to Vysya in India claiming reimbursement. Vysya refused to pay and Baroda issued proceedings in England seeking reimbursement. Baroda sought leave to issue the writ and serve it out of the jurisdiction on the grounds, inter alia, that its contract with Vysya was governed by English law.
Held: Dealing with that question under Article 4 of the Rome Convention, under a contract between an issuing bank and a confirming bank the performance which is characteristic of the contract is the addition by the confirming bank of its confirmation of the credit and its honouring of the obligations thereby accepted in relation to the beneficiary. That being so, if the presumption in Article 4(2) were applied, the contract between the issuing bank and the confirming bank would be governed by English law being the law of the place of business through which the Bank of Baroda was to effect its performance. ‘In the present case the application of art. 4(2) would lead to an irregular and subjective position where the governing law of a letter of credit would vary according to whether one was looking at the position of the confirming or the issuing bank. It is of great importance to both beneficiaries and banks concerned in the issue and operation of international letters of credit that there should be clarity and simplicity in such matters. Article 4(5) provides the answer. The Rome Convention was not intended to confuse legal relationships or to disrupt normal expectations in the way which is implicit in Vysya’s submissions’.
This case is cited by:

Peter Pammer -v- Reederei Karl Schluter GmbH & Co KG etc; ECJ 7 Dec 2010

References: [2010] EUECJ C-144/09, [2012] Bus LR 972, [2012] All ER (EC) 34, [2011] 2 All ER (Comm) 888, [2010] ECR I-12527
Links: Bailii
Coram: V. Skouris, P
ECJ (Grand Chamber) Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Article 15(1)(c) and (3) – Jurisdiction over consumer contracts – Contract for a voyage by freighter – Concept of ‘package travel’ – Contract for a hotel stay – Presentation of the voyage and the hotel on a website – Concept of activity ‘directed to’ the Member State of the consumer’s domicile – Criteria – Accessibility of the website
The ECJ established the following principles: i) The trader must have manifested its intention to establish commercial relations with consumers from one or more other member states including that of the consumer’s domicile. Specifically, in the case of a contract between a trader and a given consumer, it must be determined (by reference to the trader’s websites and overall activity), whether before any contract with that consumer was concluded, there was evidence demonstrating that the trader was envisaging doing business with consumers in other member states, including the member state of that consumer’s domicile, in the sense that it was minded to conclude a contract with those consumers;
ii) While the dissemination of traditional forms of advertising in other member states, such as by the press, radio, television or other medium, may of itself demonstrate an intention of the trader to direct its activities towards those states, the mere establishment of a website which is accessible in other member states will not of itself do so since use of the internet may automatically give worldwide reach without any intention on the part of the trader to target consumers outside of the state in which it is established.
iii) When considering advertising (whether by the use of the internet or by other media which may reach across borders without any necessary intention to target consumers in other member states) the Court should look for ‘clear expressions of the intention to solicit the custom of that state’s consumers’. Such clear expressions include mention that it is offering its services or its goods in one or more member states designated by name or mention of an international clientele composed of customers domiciled in various states; however, a finding that an activity is ‘directed to’ other member states does not depend solely on the existence of such patent evidence.
Statutes: Regulation (EC) No 44/2001 15(1)
This case cites:

  • Opinion – Peter Pammer -v- Reederei Karl Schluter GmbH & Co KG etc ECJ (C-144/09, Bailii, [2010] EUECJ C-144/09)
    ECJ (Opinion) Regulation No 44/2001 – Article 15, paragraph 1 (c) and 3 – Jurisdiction over consumer contracts – Management of a business to a Member State where the consumer’s home – Accessibility of website – . .

This case is cited by:

  • Applied. – Oak Leaf Conservatories Ltd -v- Weir and Another TCC (Bailii, [2013] EWHC 3197 (TCC))
    The claimant conservatory installers claimed wrongful repudiation of the contract by the defendant householders. The defendants, living in Ayrshire, said that the English courts had no jurisdiction over the contract.
    Held: The court gave its . .

Owusu -v- Jackson; ECJ 1 Mar 2005

References: C-281/02, [2005] EUECJ C-281/02, Times 09-Mar-2005, [2005] ILPr 25, [2005] ECR I-553, [2005] 2 All ER (Comm) 577, [2005] QB 801, [2005] 1 CMLR 43, [2005] 1 Lloyds Rep 452, [2005] 1 CLC 246, [2005] 2 WLR 942, [2005] ECR I-1383
Links: Bailii
ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State against a person domiciled in that State and other defendants domiciled in a non – Contracting State – Forum non conveniens – Incompatibility with the Brussels Convention.
Article 2 of the Brussels Convention ‘should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts . . he may be sued.’ The Court also mentioned the requirement of ‘predictability of the rules of jurisdiction’ in the Convention, and to ‘the principle of legal certainty, which is the basis of the Convention.’
The English court could not decline jurisdiction: ‘application of the forum non conveniens doctrine, which allows the court seised a wide discretion as regards the question whether a foreign court would be a more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of Article 2, and consequently to undermine the principle of legal certainty, which is the basis of the Convention. . . the Brussels Convention precludes a court of a contracting state from declining the jurisdiction conferred on it by Article 2 of that Convention on the ground that a court of a non-contracting state would be a more appropriate forum for the trial of the action, even if the jurisdiction of no other contracting state is in issue or the proceedings have no connecting factors to any other contracting state’.
Statutes: Council Regulation (EC) 44/2001
This case cites:

  • Reference from – Owusu -v- Jackson, Mammee Bay Resorts Limited etc CA (Bailii, [2002] EWCA Civ 877, [2003] PIQR 186)
    Defendants appealed against an order refusing an order to restrain service of the proceedings on certain defendants outwith the jurisdiction. The claimant was seriously injured holidaying at a resort managed by the several defendants in Jamaica in . .

This case is cited by:

  • Cited – Nussberger and Another -v- Phillips and Another (No 4) CA (Bailii, [2006] EWCA Civ 654, Times 17-Jul-06, [2006] 1 WLR 2598, Gazette 08-Jun-06)
    A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
  • 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 – Lucasfilm Ltd and Others -v- Ainsworth and Another SC ([2011] 3 WLR 487, [2011] FSR 41, [2011] Bus LR 1211, Bailii, [2011] UKSC 39, Bailii Summary, SC, SC Summary, UKSC 2010/0015, [2011] 4 All ER 817, [2011] FSR 41, [2012] 1 All ER (Comm) 1011, [2012] 1 AC 208, [2012] EMLR 3,, [2011] ECDR 21)
    The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
  • Cited – High Tech International Ag and others -v- Deripaska QBD (Bailii, [2006] EWHC 3276 (QB), [2007] EMLR 449)
    The clamants brought actions for damages for torts said to have been committed by the defendants in Russia. They said that the defendant was domiciled within the jurisdiction under the EU Regulation.
    Held: Domicile for the issue of . .

Hyman -v- Hyman; HL 1929

References: [1929] AC 601, [1929] All ER 245, [1929] P 1
Coram: Lord Hailsham LC, Lord Atkin
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.’
Lord Hailsham LC said: ‘However, this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own convenant preclude herself from invoking the jurisdiction of the court or preclude the court from the exercise of that jurisdiction.’ The existence of the covenant did not preclude the wife from making an application to the court: ‘this by no means implies that, when this application is made, the existence of the Deed or its terms are not the most relevant factors for consideration by the court in reaching a decision.’
This case is cited by:

  • Cited – AI -v- MT FD (Bailii, [2013] EWHC 100 (Fam))
    The parties had asked the court to apply rabbinical law in resolving their matrimonial proceedings, applying by consent the result of a rabbinical arbitration.
    Held: The court could not accept an ouster of its jurisdiction over children of the . .
  • Cited – S -v- S FD (Bailii, [2014] EWHC 7 (Fam))
    The court was asked to approve a settlement reached under the IFLA arbitration scheme.
    Held: The order was approved, but the court took the opportunity to give guidance. . .

Danielsson, Largenteau and Haoa -v- Commission of the European Communities; ECFI 22 Dec 1995

References: T-219/95, [1995] EUECJ T-219/95
Links: Europa, Bailii
ECFI Nuclear tests conducted by a Member State – Application for interim relief -Article 34 of the EAEC Treaty – Application for suspension of the operation of a Commission decision regarding nuclear tests. In principle, the issue of the admissibility of the main action should not be examined in proceedings relating to an application for interim measures, so as not to prejudge the Court’ s decision on the substance of the case. It should be reserved for the examination of the main action, unless it is apparent at first sight that the latter is manifestly inadmissible. When that is the case, for example because the applicant is seeking the annulment of a decision addressed to a Member State and cannot be regarded as being prima facie individually concerned by that decision, the interim application must be dismissed.
Statutes: EAEC Treaty 34

Owusu -v- Jackson, Mammee Bay Resorts Limited etc; CA 19 Jun 2002

References: [2002] EWCA Civ 877, [2003] PIQR 186
Links: Bailii
Coram: Lord Justice Brooke
Defendants appealed against an order refusing an order to restrain service of the proceedings on certain defendants outwith the jurisdiction. The claimant was seriously injured holidaying at a resort managed by the several defendants in Jamaica in various ways. The defendants argued that the proper forum was Jamaica.
Held: The decision as to forum conveniens was well within the judge’s discretion. As to the issues of European Law, these were to be referred to the European Court. Here, the two competing jurisdictions were not separate European ones, but one European and one Jamaican. The issue had not been previously dealt with by the European Court.
Statutes: Civil Procedure Rules 6.20(3), Brussels Convention Art 2, EC Treaty 220
This case cites:

  • Cited – Massey -v- Haynes ([1881] 21 QBD 330)
    Where one party to a case resides out of the jurisdiction, then Order 11 r1(1) applies and he may be joined if there are several defendants and the result would depend upon one investigation involving all of them. The words ‘proper party’ includes . .
  • Cited – Group Josi Reinsurance Company Sa -v- Universal General Insurance Company ECJ (Times 09-Aug-00, Europa, C-412/98, Bailii, [2000] EUECJ C-412/98)
    The Brussels Convention rules allowing jurisdiction apply whenever the proposed defendant is domiciled in a convention country. The plaintiff need not be. The special rules on jurisdiction which apply to insurance cases do not apply to reinsurance . .

This case is cited by:

  • Reference from – Owusu -v- Jackson ECJ (C-281/02, Bailii, [2005] EUECJ C-281/02, Times 09-Mar-05, [2005] ILPr 25, [2005] ECR I-553, [2005] 2 All ER (Comm) 577, [2005] QB 801, [2005] 1 CMLR 43, [2005] 1 Lloyds Rep 452, [2005] 1 CLC 246, [2005] 2 WLR 942, [2005] ECR I-1383)
    ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State . .

Harding -v- Wealands; CA 17 Dec 2004

References: [2004] EWCA Civ 1735, Times 05-Jan-2005, [2005] 1 WLR 1539
Links: Bailii
Coram: Lord Justice Waller Lady Justice Arden Sir William Aldous
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to be displaced. Roerig implied a bright line between matters of assessment and heads of damages. Applying Boys v Chapman there was no such clear line. Though the 1995 Act may have abolished the common law rule of double actionability, at the same time it intended to vary the common law so far as quantification and assessment of damages was concerned. The meaning of substance and procedure for the purposes of section 14 of the 1995 Act must be sought in the context of the 1995 Act. (Majority) The judge had been wrong to apply English law in preference to the restrictions on damages which would apply under the New South Wales Act.
Lady Justice Arden: ‘In the context of section 14, a principled approach requires the court to start from the position that it has already decided that the proper law of the tort is not the law of the forum, ie that some other law applies to the tort, either because it is the lex loci delicti or because it is substantially more appropriate than the lex loci delicti. On this basis, a reference to the law of the forum must be the exception, and it must be justified by some imperative which, relative to the imperative of applying the proper law, has priority.’ There is ‘a guiding principle’ that: ‘Once the court has decided that the law of New South Wales is the proper law of the tort, it is logical, so far as possible, to apply the law of New South Wales throughout.’
Statutes: Private International Law (Miscellaneous Provisions) Act 1995 11
This case cites:

  • Appeal from – Harding -v- Wealands QBD (Unreported, 27 May 2004)
    The claimant had been injured in a traffic accident in Australia. The parties lived together in England, but the driver was insured by an Australian company. He sought to sue here to avoid a limitation on damages imposed by Australian law. The issue . .
  • Cited – Roerig -v- Valiant Trawlers Ltd CA ([2002] All ER (D) 234, Bailii, [2002] EWCA Civ 21, [2002] 1 WLR 2304)
    The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
  • Cited – Boys -v- Chaplin HL ([1971] AC 356, [1969] 3 WLR 322, [1969] 2 All ER 1085)
    The plaintiff sued in England for a traffic accident which had happened in Malta. The law of Malta would have denied certain elements of damages which would be available in this jurisdiction.
    Held: Liability in respect of the road accident in . .
  • Cited – Edmunds -v- Simmonds QBD (Times 21-Nov-00, [2001] 1WLR 1003)
    The claimant suffered damages in a road traffic accident in Spain caused by the respondent. A Spanish court would have allowed much lower damages. Such damages should normally be assessed in accordance with the law of the country where the accident . .
  • Cited – Assicurazioni Generali Spa -v- Arab Insurance Group (BSC) CA (Bailii, Times 29-Nov-02, Gazette 23-Jan-03, [2002] EWCA Civ 1642, [2003] 1 WLR 577, [2003] Lloyds Rep IR 131, [2003] 1 All ER (Comm) 140)
    The appellant asked the Court to reverse a decision on the facts reached in the lower court.
    Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
  • Cited – Biogen Plc -v- Medeva Plc HL (Times 01-Nov-96, [1997] RPC 1, Bailii, [1996] UKHL 18, (1997) 38 BMLR 149)
    A recombinant method of making the antigens of a hepatitis virus was patented with a priority date of 22 December 1978 but was conceded to have been obvious by 21 December 1979.
    Held: The claim for a DNA patent was too broad; no new principle . .
  • Cited – Mehdi Norowzian -v- Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA (Times 11-Nov-99, Gazette 25-Nov-99, [2000] FSR 363, [2000] EMLR 67, Bailii, [1999] EWCA Civ 3014, Bailii, [1999] EWCA Civ 3018, [2000] ECDR 205)
    The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
    Held: A film was protected as a . .
  • Cited – Stevens -v- Head (Austlii, [1993] HCA 19, (1993) 112 ALR 7, [1993] Aust Torts Reports 81-203, (1993) 17 MVR 1, (1993) 67 ALJR 343, [1993] 176 CLR 433)
    (High Court of Australia) The court considered a claim for damages arising out of a motor accident in New South Wales, where the claim had been brought in the courts of Queensland. The questions arose as to whether or not a provision in the Motor . .
  • Cited – Cope -v- Doherty ((1858) 4 K and J 369)
    Owners of an American ship which had collided with and sunk another American ship applied to limit their liability pursuant to section 504 of the Merchant Shipping Act 1854.
    Held: The section did not apply to collisions between foreigners. . .
  • Cited – Cope -v- Doherty CA ((1858) 2 De G and J 614)
    Turner LJ: ‘An attempt was made on the part of the appellants to bring this case within Don v Lippman and cases of that class, but I think those cases have no bearing upon the point. This is a question of liability, and not of procedure.’ . .
  • Cited – John Pfeiffer Pty Limited -v- Rogerson HCA ([2000] HCA 36, Austlii, (2000) 203 CLR 503)
    (High Court of Australia) The double actionability rule should be discarded with regard to claims brought in an Australian court in respect of a civil wrong arising out of acts or omissions that occurred wholly within one or more of the law areas of . .
  • Cited – Phillips -v- Eyre CEC ((1870) LR 6 QB 1 28)
    The court considered the rule of double actionability. The court laid down the test for whether a tort committed abroad was actionable in this jurisdiction: ‘As a general rule, in order to found a suit in England for a wrong alleged to have been . .
  • 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 – Konamameni -v- Rolls Royce Industrial Power (India) Ltd ([2002] 1 All ER 979)
    The entitlement to bring a derivative action in the English courts is governed by the law of the place of incorporation of the company in question. . .
  • Cited – Caltex Singapore Pte Ltd -v- BP Shipping Ltd ([1996] 1 Lloyd’s Law Rep. 286)
    A provision of Singapore law giving a ship-owner the right to limit his liability for damage resulting from a collision in Singapore was procedural, or at least not substantive. The limitation in question did not qualify the right of the claimants . .

This case is cited by:

  • Cited – Al-Jedda -v- Secretary of State for Defence CA ([2006] UKHRR 855, [2006] HRLR 27, [2006] 3 WLR 954, Bailii, [2006] EWCA Civ 327, Times 25-Apr-06, [2007] QB 621)
    The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
    Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
  • Appeal from – 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: . .

The El Amria; 1981

References: [1981] 2 Lloyds Rep 119
Coram: Brandon J
The court set out the principles to be applied where a party seeks to enforce or act in breach of a choice of jurisdiction contract. If a party seek to sue here in breach of such a clause, the court has a discretion to stay, but a stay should be granted unless there is good cause shown by the plaintiff. The court must allow for all the circumstances including the country in which the factual evidence is situated, or more readily available, and consequent convenience and expense of trial in English; whether the law of the foreign Court applies and, if so, any differences, any close connection with the countries; whether only a procedural advantage is sought; and any prejudice by way of deprivation of security, the ability to enforce a judgment or be faced with a time-bar or for political, racial, religious or other reasons the plaintiff may be unlikely to get a fair trial.
This case cites:

This case is cited by:

  • Approved – Donohue -v- Armco Inc and others HL (House of Lords, Bailii, [2001] UKHL 64, [2002] 1 Lloyd’s Rep 425, [2002] CLC 440, [2002] 1 All ER 749, [2002] 1 All ER (Comm) 97)
    The appellant had sought injunctions against the respondent US companies to restrain their commencing proceedings in the US against him. The parties had negotiated for the purchase of the run-off liabilities of a defunct insurance company. . .
  • Cited – OT Africa Line Ltd -v- Magic Sportswear Corporation and others CA (Bailii, [2005] EWCA Civ 710, Times 21-Jun-05)
    The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .

Societe Eram Shipping Company Limited and others -v- Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation; HL 12 Jun 2003

References: Times 13-Jun-2003, [2003] UKHL 30, Gazette 17-Jul-2003, [2003] 3 WLR 21, [2003] 3 All ER 465, [2003] 2 Lloyd’s Rep 405, [2003] ILPr 36, [2003] 2 All ER (Comm) 65, [2004] 1 AC 260, [2003] 1 CLC 1163, [2003] 2 LLR 405
Links: House of Lords, Bailii
Coram: Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough Lord Millett
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating by attachment against the property of the judgment debtor. The property so attached is the chose in action represented by the debt of the third party to the judgment debtor. On the making of the interim order that chose in action is bound, frozen, attached or charged in the hands of the third party. Subject to any monetary limit which may be specified in the order, the third party is not entitled to deal with that chose in action by making payment to the judgment debtor or any other party at his request. When a final or absolute order is made the third party is obliged (subject to any specified monetary limit) to make payment to the judgment creditor and not to the judgment debtor, but the debt of the third party to the judgment debtor is discharged pro tanto. That discharge is central to the jurisdiction, and an order cannot be made where a discharge is not obtained.
Lord Hoffmann said: ‘it is a general principle of international law that one sovereign state should not trespass upon the authority of another, by attempting to seize assets situated within the jurisdiction of the foreign state or compelling its citizens to do acts within its boundaries.’
Statutes: Civil Jurisdiction and Judgments Act 1982, Civil Procedure Rules 72
This case cites:

  • Cited – Re General Horticultural Company, Ex parte Whitehouse ChD ((1886) 32 Ch D 512)
    Section 62 describes the order nisi as binding the judgment debtor’s chose in action in the hands of the garnishee. The effect of the order, is to give the judgment creditor execution against the debts owing to his debtor. . .
  • Cited – Rogers -v- Whiteley HL ([1892] AC 118)
    Discussing an order attaching all debts, the House held: The effect of an order attaching ‘all debts’ owing or accruing due by [the garnishee] to the judgment debtor is to make the garnishee custodier for the Court of the whole funds attached; and . .
  • Cited – Choice Investments Ltd -v- Jeromnimon CA ([1981] QB 149)
    ‘[Service of the order nisi] prevents the bank from paying the money to its customer until the garnishee order is made absolute, or is discharged . . . The money at the bank is then said to be ‘attached’. . . . But the ‘attachment’ is not an order . .
  • Cited – Galbraith -v- Grimshaw and Baxter CA ([1910] 1 KB 339)
    A garnishee order nisi does not operate as a transfer of the property in the debt, but it is an equitable charge on it, and the garnishee cannot pay the debt to any one but the garnishor without incurring the risk of having to pay it over again to . .
  • Cited – Joachimson -v- Swiss Bank Corporation CA ([1921] 3 KB 110, [1921] 37 TLR 534)
    The service of the order nisi binds the debt in the hands of the garnishee – that is, it creates a charge in favour of the judgment creditor. No cause of action for non payment arises in respect of money standing on a current account until the . .
  • Cited – Ellis -v- M’Henry CCP ((1871) LR 6 CP 228)
    A debt or liability arising in any country may be discharged by the laws of that country, and such a discharge, if it extinguishes the debt or liability, and does not merely interfere with the remedies or course of procedure to enforce it, will be . .
  • Cited – Martin -v- Nadel CA ([1906] 2 KB 26)
    A garnishee order was sought in England against the London branch of a German bank to attach a balance owed to the judgment debtor by the Berlin branch of the bank.
    Held: A garnishee order is of the nature of an execution, and is governed by . .
  • Cited – Deutsche Schachtbauund Tiefbohrgesellschaft mbH -v- Shell International Petroleum Co Ltd HL ([1990] 1 AC 295)
    The case concerned a garnishee order absolute made in respect of a debt situated in England, and the House was not called upon to consider the position where foreign debts were in issue.
    Held: (Majority) The court has a ‘discretionary power to . .
  • Cited – Zoneheath Association Ltd -v- China Tianjin International European Community Economic and Tech Co-Op Corporation QBD (Times 08-Apr-94, [1994] CLC 348)
    A garnishee order was not available against a foreign account through a UK branch. The English court continued to exercise its discretion against the making of orders in relation to debts with a foreign situs . .
  • Approved in part – Regina -v- Grossman CA ((1981) 73 Cr App R 302)
    An application was made against Barclays Bank in London to obtain inspection of an account held at a branch of the bank in the Isle of Man.
    Held: The Civil Division of the Court of Appeal which determined the application was later held to have . .
  • Cited – Bonalumi -v- Secretary of State for the Home Department CA ([1985] QB 675, [1985] 1 All ER 797)
    In the course of extradition proceedings, an order was obtained under the 1879 Act. The defendant sought to appeal against the order, and applied to the Court of Appeal.
    Held: The procedure under the 1879 Act was in the course of criminal . .
  • Cited – MacKinnon -v- Donaldson, Lufkin and Jenrette Securities Corporation ChD ([1986] Ch 482)
    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 . .
  • Cited – Babanaft International Co SA -v- Bassatne CA ([1990] Ch 13, Independent 30-Jun-88, [1989] 1 All ER 433)
    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 . .
  • Cited – Baltic Shipping Co -v- Translink Shipping Ltd ((1995) 1 Lloyd’s Rep 673)
    Further protection was afforded to those holding overseas assets of persons subject to Mareva injunctions. . .
  • Cited – Richardson -v- Richardson KBD ([1927] P 228,)
    A bank owed debts to a judgment debtor customer on accounts held both in London and in Africa. It was accepted that the former were subject to a garnishee order. The dispute concerned the latter.
    Held: The bank is no doubt indebted to the . .
  • Cited – SCF Finance Co Ltd -v- Masri (No 3) ([1987] QB 1028)
    The court accepted that in a case where the garnishee was not indebted within the jurisdiction that might be relevant to the exercise of the court’s discretion. Since, in this case, the debt in question was an English debt, the court’s jurisdiction . .
  • Cited – Rasu Maritima -v- Pertamina CA ([1978] QB 644)
    Foreign attachment as an interlocutory process is the origin of the Mareva injunction . .
  • Cited – Mayor etc of London -v- Cox HL ((1867) LR 2 HL 239)
    The procedure called foreign attachment, on which the procedure under the 1854 Act was modelled, had existed by immemorial custom in London and other cities. The custom had been certified by the Recorder of London in 1481 but went back much further; . .
  • See Also – Societe Eram Shipping Company Ltd. -v- Compagnie Internationale De Navigation and others ComC (Bailii, [2001] EWHC 495 (Comm))
    . .
  • See Also – Societe Eram Shipping Co Ltd -v- Compagnie Internationale De Navigation and others CA (Bailii, [2001] EWCA Civ 568)
    . .

This case is cited by:

Abusabib and Another -v- Taddese; EAT 20 Dec 2012

References: [2012] UKEAT 0424_11_2012)
Links: Bailii
Coram: Langstaff P J
EAT Jurisdictional Points : State Immunity – Diplomatic Immunity
The First Respondent, who had been found liable together with the Second Respondent for acts of discrimination against the Claimant in a hearing of which he said he had not been aware, asserted on appeal that he was entitled to diplomatic inviolability. Since he had ceased to occupy a diplomatic post in the UK, this depended on whether the employment by him of the claimant as a domestic at his home out of which the claims arose could be regarded as an exercise by him of his functions as a diplomat, and whether the alleged acts of discrimination likewise attracted immunity as having been such an exercise of his functions. It was held that employment of a domestic servant at the diplomat’s residence would not normally be within those functions, and this case on its facts was not, nor were the acts complained of, done in the exercise of those functions.

Konamameni -v- Rolls Royce Industrial Power (India) Ltd; 2002

References: [2002] 1 All ER 979
The entitlement to bring a derivative action in the English courts is governed by the law of the place of incorporation of the company in question.
This case is cited by:

  • Cited – Harding -v- Wealands CA (Bailii, [2004] EWCA Civ 1735, Times 05-Jan-05, [2005] 1 WLR 1539)
    The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
    Held: The general rule in section 11 was not to . .

Caltex Singapore Pte Ltd -v- BP Shipping Ltd; 1996

References: [1996] 1 Lloyd’s Law Rep. 286
Coram: Clarke J
A provision of Singapore law giving a ship-owner the right to limit his liability for damage resulting from a collision in Singapore was procedural, or at least not substantive. The limitation in question did not qualify the right of the claimants and could not be regarded as a matter of substantive law for the purposes of the conflicts of laws.
This case is cited by:

  • Cited – Harding -v- Wealands CA (Bailii, [2004] EWCA Civ 1735, Times 05-Jan-05, [2005] 1 WLR 1539)
    The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
    Held: The general rule in section 11 was not 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 – Roerig -v- Valiant Trawlers Ltd CA ([2002] All ER (D) 234, Bailii, [2002] EWCA Civ 21, [2002] 1 WLR 2304)
    The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .

Base Metal Trading Ltd -v- Shamurin; CA 14 Oct 2004

References: [2004] EWCA Civ 1316, Times 01-Nov-2004, [2004] 4 All ER 1
Links: Bailii
Coram: Lady Justice Arden Lord Justice Tuckey Mr Justice Newman
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.
Held: If the acts complained of did not relate to the constitution of a company, it must relate to its internal management. Where the claim related to the duties inherent in the office of director, the claim should be heard in the place of incorporation wherever the acts complained of took place. Russian law was applicable for the claim in tort, but Guernsey, where the company was incorporated, was the proper law of the claim in equity.
Statutes: Contracts (Applicable Law) Act 1990
This case cites:

This case is cited by:

  • Cited – Harding -v- Wealands CA (Bailii, [2004] EWCA Civ 1735, Times 05-Jan-05, [2005] 1 WLR 1539)
    The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
    Held: The general rule in section 11 was not to . .

Navig8 Pte Ltd -v- Al-Riyadh Co for Vegetable Oil Industry; ComC 22 Feb 2013

References: [2013] EWHC 328 (Comm)
Links: Bailii
Coram: Andrew Smith J
Application by the defendant, a Jordanian company to challenge the jurisdiction of the court over these proceedings brought by the claimant, a Singaporean company. Navig8 served proceedings in Jordan, having been permitted to do so by Hamblen J on 9 May 2012. Al-Riyadh contend that the court does not have jurisdiction to hear Navig8’s claims and should not exercise it even if it has.

Harding -v- Wealands; QBD 27 May 2004

References: Unreported, 27 May 2004
Coram: Elias J
The claimant had been injured in a traffic accident in Australia. The parties lived together in England, but the driver was insured by an Australian company. He sought to sue here to avoid a limitation on damages imposed by Australian law. The issue was as to whether Australian rules should apply also here to the calculation of the damages. Is it a procedural or substantive question.
Held: The restriction in the damages claim which would have applied in Australia was procedural not substantive, and the claimant could bring his action in the English court.
Statutes: Private International Law (Miscellaneous Provisions) Act 1995
This case is cited by:

  • Appeal from – Harding -v- Wealands CA (Bailii, [2004] EWCA Civ 1735, Times 05-Jan-05, [2005] 1 WLR 1539)
    The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
    Held: The general rule in section 11 was not to . .
  • At First Instance – 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: . .