Magiera v Magiera: CA 15 Dec 2016

The defendant H appealed against a refusal of a stay of the action under the 1996 Act on the basis of Brussels I.
Held: The appeal failed. Article 22 was to be narrowly construed, and it should be no wider than is needed to satisfy the objective of the provisions. However, the costs order had been made beyond the court’s powers insofar as it amounted to a chrging order and was varied as required.

Black, Sales, Irwin LJJ
[2016] EWCA Civ 1292, [2017] BPIR 472, 20 ITELR 47, [2017] 3 WLR 41, [2017] WTLR 245, [2016] WLR(D) 677, [2017] Fam 327
Bailii, FLW, WLRD
Trusts of Land and Appointment of Trustees Act 1996, Council Regulation (EC) No 44/2001 on jurisdiction and the recognition of judgments in civil and commercial matters
England and Wales

Jurisdiction, European, Trusts

Updated: 27 January 2022; Ref: scu.572417

Bank of Baroda, GCC Operations and Others v Nawany Marine Shipping Fze and Others: ComC 1 Dec 2016

Application by the Defendants under CPR Part 11 for an order that the Court declines to exercise its jurisdiction to hear the claim or for an order that these proceedings be stayed.

Sara Cockerill QC
[2016] EWHC 3089 (Comm)
Bailii
England and Wales

Jurisdiction

Updated: 27 January 2022; Ref: scu.572294

St Vincent European General Partner Ltd v Robinson and Others: ComC 17 Nov 2016

Application by the Applicants for a declaration that the court has no jurisdiction over the claims made against them in this action, and for an order setting aside the proceedings as against them. The ground of the application is that (according to the Applicants) the claims in this action all arise out of or in connection with a Shares Pledge Agreement to which the Claimant and the Applicants are parties, and which contains a provision conferring exclusive jurisdiction on the courts of Cyprus.

Salter QC HHJ
[2016] EWHC 2920 (Comm)
Bailii
England and Wales

Jurisdiction

Updated: 26 January 2022; Ref: scu.571760

JEB Recoveries Llp v Binstock: CA 19 Oct 2016

Appeal by the defendant, Mr Binstock, against the order of His Honour Judge Barker QC, sitting as a judge of the High Court, made on 8 May 2015, declaring that the court had jurisdiction to hear what has been described as the third claim of the claimant, JEB Recoveries LLP (‘JEB’), and dismissing an application by Mr Binstock that the claim should be struck out on the ground that it was founded upon a champertous assignment.

Moore-Bick VP CA, Tomlinson, Kitchin LJJ
[2016] EWCA Civ 1008
Bailii
Council Regulation (EC) No 44/2001
England and Wales

Jurisdiction, Contract

Updated: 24 January 2022; Ref: scu.570175

Ras Al Khaimah Investment Authority and Others v Bestfort Development Llp and Others: ChD 16 Oct 2015

In an application notice pursuant to Section 25 of the 1982 Act, the Claimants, which are all, in one form or another, entities of the government of the Emirates of Ras Al Khaimah, one of the Emirates forming the United Arab Emirates (UAE) sand which I am going to call RAK appled for wide ranging interlocutory relief by way of worldwide freezing injunctions and the appointment of receivers; in support of proceedings which have been commenced in the Republic of Georgia and which are, as I understand it, to be commenced in the UAE.

Master Bowles
[2015] EWHC 2926 (Ch)
Bailii
Civil Jurisdiction and Judgments Act 1982
England and Wales

Jurisdiction

Updated: 23 January 2022; Ref: scu.570006

Aziz v Republic of Yemen: CA 17 Jun 2005

The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of the 1978 Act does not have the effect that only a submission by the head of mission would suffice to waive immunity. The court set out the following principles: ‘(a) When state immunity is claimed in appellate proceedings, the court may consider evidence called to substantiate such claim because, if substantiated, the court below had no jurisdiction to hear the case. (b) In a case where the other party claims that there has been a waiver of immunity, the court should scrutinise the available evidence. (c) Whether the issue is as to the status of the entity claimed to be an emanation of the state or as to a claimed waiver of immunity, the evidence of the Ambassador, as representative of the state, is important but not necessarily conclusive evidence of the relevant matters.’
The EAT should have remitted the matter to the ET to consider whether immunityhad been waived.

Pill LJ, Sedley LJ, Gage J
[2005] EWCA Civ 745, Times 22-Jun-2005, [2005] ICR 1391
Bailii
State Immunity Act 1978 2(7)
England and Wales
Citing:
CitedArab Republic of Egypt v Gamal-Eldin and Another EAT 14-Oct-1994
The appellant appealed a finding against it in the Employment tribunal, saying it had state immunity.
Held: ‘If the industrial tribunal fails to give effect to an immunity in fact enjoyed by the Arab Republic of Egypt as a result of not having . .
CitedAhmed v Government of the Kingdom of Saudi Arabia CA 1996
Where a defence had been filed to an action without a claim for state immunity having been made, it would have to be shown that the head of mission had submitted to the jurisdiction. . .
CitedArab Republic of Egypt Embassy v Gamal-Eldin and Another EAT 2-Mar-1995
. .
CitedThe Schooner Exchange v McFaddon 1812
(United States Supreme Court) The court considered the rationale of the jurisdictional immunity given to sovereign states: ‘This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of . .
CitedThe Jassy 1906
The plaintiff took process by way of arrest in a damages action in rem against a vessel which was the property of a foreign state.
Held: The action was dismissed. No waiver of the state’s privilege could be assumed even though agents of the . .
CitedIn re Republic of Bolivia Exploration Syndicate Ltd 1914
‘Even if it were conceivable that a diplomatic agent can waive his privilege, which is really the privilege of his sovereign, he can only do so intentionally, with full knowledge of his rights, and with the sanction of his sovereign or legation.’ . .
CitedMcElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
CitedRegina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
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. . .
CitedAl-Adsani v Government of Kuwait and Others (No 2) CA 29-Mar-1996
The claimant alleged that he had suffered torture in a security prison in Kuwait, and he obtained leave to serve out of the jurisdiction on the Government of Kuwait, and on three individuals, one of whom at least was served, on the ground that he . .
CitedAlcom Ltd v Republic of Colombia HL 1984
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 . .
CitedBaccus SRL v Servicio Nacional Del Trigo CA 1956
The defendant organisation carried on business from Spain and was sued in England for damages for breach of a commercial contract. An appearance was entered by their solicitors in London and a consent order made for security for the organisation’s . .
CitedThe Parlement Belge CA 1879
An action in rem indirectly impleaded a sovereign who was the owner of the vessel served because his property was affected by the judgment of the court. An unincorporated treaty cannot change the law of the land and, ‘the immunity of the sovereign . .
CitedDe Haber v The Queen of Portugal 1851
Orse In the Matter of Wadsworth and R of Spain In the Matter of De Haber and R of Portugal
Property in England, belonging to a foreign sovereign prince in his public capacity, cannot be seized under process in a suit instituted against him in . .
CitedJones v Governing Body of Burdett Coutts School CA 2-Apr-1998
The Employment Appeal Tribunal must give reasons for its decision, if it chooses to allow the amendment of appeal the papers in order to hear a point of law which had been conceded in the industrial tribunal. Citing Liverpool Corporation v Wilson, . .
CitedRegina v Madan CCA 1961
The defendant, a clerk on the staff of the High Commissioner for India, was entitled to diplomatic immunity. He purported to waive his immunity when charged with attempting to obtain a sum of money by false pretences. He was convicted at the County . .

Lists of cited by and citing cases may be incomplete.

Employment, Jurisdiction

Updated: 22 January 2022; Ref: scu.226829

Re DB: CoP 17 Jun 2016

‘DB and EC are two men born and raised in Scotland. Each has a profound learning disability and complex behavioural problems. They have both been receiving treatment in the same specialist hospital in England for several years. Proceedings in respect of each man have now been started in the Court of Protection. A preliminary issue has arisen as to whether each man has acquired habitual residence in England so as to vest jurisdiction in the Court.’

Baker J
[2016] EWCOP 30
Bailii
England and Wales

Health, Jurisdiction

Updated: 21 January 2022; Ref: scu.568152

Gazdasagi Versenyhivatal v Siemens Aktiengesellschaft Osterreich: ECJ 28 Jul 2016

ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 44/2001 – Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Scope ratione materiae – Recovery of sum not due – Unjust enrichment – Debt arising from the unjustified repayment of a fine for infringement of competition law

ECLI:EU:C:2016:607, [2016] EUECJ C-102/15
Bailii
Regulation (EC) No 44/2001
European

Commercial, Jurisdiction

Updated: 20 January 2022; Ref: scu.567790

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

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

Jonathan Sumption QC
Times 16-Dec-2002
European Convention on Human Rights Art 6
England and Wales

Human Rights, Jurisdiction

Updated: 20 January 2022; Ref: scu.178513

Cherney v Deripaska: ComC 3 Jul 2008

Renewed application for leave to serve proceedings out of jurisdiction. The court considered a submission that a fair trial would not be possible in Russia: ‘An English court will approach with considerable circumspection any contention that a potential claimant cannot obtain justice or a fair hearing in a foreign court and will require ‘positive and cogent’ evidence to persuade it to the contrary: The Abidin Daver [1984] AC 398, 411c. Assertions to that effect are relatively easily made by generalised statements and may be difficult comprehensively to refute. I further accept that research of Russian law may suffer from what Professor Stephan describes as an ‘echo chamber effect’ where one commentator states an impression which is swapped with the impression of another commentator, each citing the other as authority supporting their own thesis without any systematic study of data. It is, however, right to have some regard to any consensus of academic opinion, based on research and personal familiarity, particularly when backed by specific instances . . or determinations of the ECHR or other courts.
In the absence of cogent evidence to the contrary the Court will start with the working assumption, for which comity calls, that courts in other judicial systems will seek to do justice in accordance with applicable laws, and will be free from improper interference or restriction. As this case indicates, where there is evidence to the contrary it may be hotly in dispute and difficult to evaluate. Such evidence is likely, insofar as it derives from reports and articles, to consist of ‘broad and conclusory allegations, founded on multiple levels of hearsay’ and, if so, to be unacceptable as an indictment of a legal system or part of it . . .But the Court is not blind to the fact that unfairness or partiality may arise from that which occurs behind the scenes rather than centre stage.’

Christopher Clarke J
[2008] EWHC 1530 (Comm), [2009] 1 All ER (Comm) 333
Bailii
England and Wales
Citing:
CitedThe Abidin Daver HL 1984
The House considered the application of the doctrine of forum conveniens.
Held: A stay of an English action on the ground of forum non conveniens could be resisted on the ground that justice could not be obtained in the otherwise more . .

Cited by:
CitedPacific International Sports Clubs Ltd v Soccer Marketing International Ltd and Others ChD 24-Jul-2009
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 . .
Appeal FromDeripaska v Cherney CA 31-Jul-2009
The court considered where the trial of the action should take place.
Held: The defendant’s appeal failed. Even though the rights sought to be protected were of a proprietary nature, where the rights could properly be said to have arisen under . .
CitedVarsani v Relfo Ltd CA 27-May-2010
The defendant appealed against refusal of a declaration that the court had no jurisdiction to hear the claim. He said that he lived in Kenya, and the claimant had failed first to apply for leave to serve out of the jurisdiction. The claimant had . .
CitedWilliams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 20 January 2022; Ref: scu.270635

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

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.’
Scarman J dismissed the idea that the standard of proof required to prevent an inference of the revival of a domicile of origin on the loss of a domicile of choice was the criminal standard. An inference drawn by the court must be consistent with all the relevant proved or admitted facts. He said: ‘There remains the question of standard of proof. 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 party asserting the change. But it is not so clear what is the standard of proof: is it to be proved beyond reasonable doubt or upon a balance of probabilities, or does the standard vary according to whether one seeks to establish abandonment of a domicile of origin or merely a switch from one domicile of choice to another? Or is there some other standard?
In Moorhouse v. Lord, Lord Chelmsford said that the necessary intention must be clearly and unequivocally proved. In Winans v. Att.-Gen., Lord Macnaghten said that the character of a domicile of origin ‘is more enduring, its hold stronger and less easily shaken off.’ In Ramsay v. Liverpool Royal Infirmary, the House of Lords seemed to have regarded the continuance of a domicile of origin as almost an irrebuttable presumption. Danger lies in wait for those who would deduce legal principle from descriptive language. The powerful phrases of the cases are, in my opinion, a warning against reaching too facile a conclusion upon a too superficial investigation or assessment of the facts of a particular case. They emphasise as much the nature and quality of the intention that has to be proved as the standard of proof required. 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) 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.’
. . And: ‘when all is dark, it is dangerous for a court to claim that it can see the light.’
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’.’

Scarman J
[1968] P 675, [1967] 3 WLR 401, [1967] 3 All ER 318
England and Wales
Citing:
CitedBarry v Butlin PC 8-Dec-1838
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. . .

Cited by:
CitedFuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
CitedPeer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
CitedSherrington v Sherrington ChD 13-Jul-2004
The deceased had divorced and remarried. His children challenged the will made after his second marriage.
Held: There was cogent evidence that the will was not properly executed and that the will went against his wishes as expressed to others. . .
CitedAgulian and Another v Cyganik CA 24-Feb-2006
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . .
CitedBarlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
ApprovedBuswell v Inland Revenue Commissioners CA 1974
. .
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
CitedGill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .
CitedHolliday and Another v Musa and Others CA 30-Mar-2010
The adult children of the deceased appealed against a finding that their father had died domiciled in the UK, and allowing an application under the 1975 Act. He had a domicile of origin in Cyprus but had lived in England since 1958. . .
See AlsoIn re the Estate of Fuld, decd (No. 4) 1968
The solicitor sought to exercise a lien for his costs over money paid direct to his client.
Held: The solicitor’s right exists over both the amount of a judgment in favour of the client, and the amount of an order for costs in favour of the . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Family, Litigation Practice, Wills and Probate

Updated: 20 January 2022; Ref: scu.186118

BAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc: ChD 25 Jul 2003

The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed and emailed and delivered by hand at the registered offices of the company and at the private address of the owner and a director of the company. All these methods were ineffective as service under English law or Maltese law. The defendants challenged the jurisdiction of the English court, referring to an exclusive jurisdiction clause. Proceedings had been begun in Malta. The respondents denied that serious and grave matters had been alleged so as to bring into play section 402.
Held: The court set aside the order granting permission to serve the defendants out of the jurisdiction, except in relation to the alleged breach by the Company of the funding limits, and refused to grant the injunctions either in the wide form originally sought, or in the modified form suggested in correspondence.

Lawrence Collins J
[2003] EWHC 1798 (Ch), [2004] 1 Lloyd’s Rep 652
Bailii
Companies Act 1985 402
England and Wales
Citing:
CitedThe Abidin Daver HL 1984
The House considered the application of the doctrine of forum conveniens.
Held: A stay of an English action on the ground of forum non conveniens could be resisted on the ground that justice could not be obtained in the otherwise more . .
CitedKonamaneni v Rolls Royce Industrial Power (India) Limited ChD 20-Dec-2001
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 . .
CitedMacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation ChD 1986
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 . .
CitedPickering v Stephenson 1872
A company’s money should not be expended on disputes between the shareholders. . .
CitedRe Crossmore Electrical and Civil Engineering Ltd 1989
Disputes between shareholders should not be settled with assistance form the funds of the company. . .
CitedRe A Company No 01126 of 1992 1993
Company funds should not be used to support disputes between shareholders. . .
CitedSeaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran HL 15-Oct-1993
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 . .
CitedThe Sky One 1988
RSC O.11, r.6(3)) did not provide exclusive methods of service. Service might be effected by private means rather than through the methods set out there, provided always that nothing was done in the country where service was to be effected which was . .
CitedKnauf UK GmbH v British Gypsum Ltd and Another CA 24-Oct-2001
Permission was sought to use alternative service to serve proceedings on a company. There was no exceptional difficulty in ordinary service, but the claimant wanted to ensure that a claim was heard within the UK jurisdiction, and expected that he . .
CitedAnderton v Clwyd County Council (No 2); Bryant v Pech and Another Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd CA 3-Jul-2002
In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act . .
CitedNational Carriers Ltd v Panalpina (Northern) Ltd HL 11-Dec-1980
No Frustration of Lease through loss of access
The tenant’s access to the premises was closed by the local authority because it passed by a derelict and dangerous building. The tenant argued that its tenancy was frustrated.
Held: The lease was not frustrated. The lease had a term of ten . .
CitedThe Chaparral CA 1968
A contract conferred exclusive jurisdiction on the English court as a neutral forum. In the context not only of English and other jurisdiction clauses the court held: ‘In the present case the choice of the parties was the English Court, and . . I . .
CitedAkai Pty Ltd v People’s Insurance Co Ltd 1998
The principles applicable in deciding whether an exclusive jurisdiction clause applies are the same whether the jurisidiction selected is England or Wales or otherwise. . .
CitedImport Export Metro Ltd and Another v Compania Sud Americana De Vapores S A ComC 23-Jan-2003
. .
CitedAttock Cement Co v Romanian Bank for Foreign Trade CA 1989
Where the parties to a contract have agreed to an English forum it would require strong grounds for one of the parties to resist the exercise of jurisdiction by the English court: ‘We should also look with favour on a choice of our own jurisdiction, . .
CitedBritish Aerospace v Dee Howard 1993
Where a contract contained an exclusive jurisdiction clause providing for a case to be tried in the UK, it was relevant that the circumstances which might now suggest a trial elsewhere were perfectly foreseeable at the time of the contract. The new . .
CitedSociete Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
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 . .
CitedCredit Suisse Fides Trust SA v Cuoghi; Credit Suisse Fides Trust SA and Amhurst Brown Colombotti (a Firm) CA 11-Jun-1997
The claimant brought proceedings in Switzerland (a party to the Lugano Convention) against the defendant who was domiciled in England, alleging that he had conspired with one of the claimant’s employees to misappropriate some US$ 21 million. It was . .
CitedREFCO Capital Markets Ltd and Another v Eastern Trading Co, Credit Suisse (First Boston) Ltd and Another CA 17-Jun-1998
An application for Mareva relief was granted under s.25 where proceedings were pending in the US against Lebanese defendants arising out of futures transactions with respect of assets in England. On the application to discharge the order, the lower . .
CitedMotorola Credit Corporation v Uzan and Others CA 26-Jun-2002
A world wide asset freezing order had been made. The defendants sought that it be set aside. Pending the hearing of their application, they sought also delay of their obligation to co-operate in providing full details of their finances.
Held: . .
CitedBabanaft International Co SA v Bassatne CA 30-Jun-1988
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 . .
CitedCastanho v Brown and Root (UK) Ltd HL 1981
A claim was made for an anti-suit injunction.
Held: The court is reluctant to make orders which would be ineffective to achieve what they set out to do, but the fear that the defendant will not obey an injunction is not a bar to its grant. The . .

Cited by:
CitedBasil Shiblaq v Kahraman Sadikoglu (No 2) ComC 30-Jul-2004
The court considered whether there had been effective service of proceedings on defendants in Turkey. Evidence was given as to the effectiveness of such service in Turkish law.
Held: The defendant’s application to set aside the judgment in . .
CitedNussberger and Another v Phillips and Another (No 4) CA 19-May-2006
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 . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company

Updated: 20 January 2022; Ref: scu.186465

MacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation: ChD 1986

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

Hoffmann J
[1986] Ch 482
Bankers Books Evidence Act 1879 87
England and Wales
Citing:
ApprovedRegina v Grossman CA 1981
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 by:
CitedSociete Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
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 . .
CitedBAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
CitedMahme Trust v Lloyds TSB Bank plc ChD 29-Jul-2004
The claimant began an action in England. The defendant sought a stay, saying the appropriate forum was Switzerland.
Held: The defendant was a truly multi-national orgaisation and had branches in many countries. The choice of forum belongs to . .
CitedMitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .

Lists of cited by and citing cases may be incomplete.

Banking, Jurisdiction

Updated: 20 January 2022; Ref: scu.183552

Mt Hojgaard And Zublin v Banedanmark: ECJ 24 May 2016

ECJ (Judgment) Reference for a preliminary ruling – Article 267 TFEU – Jurisdiction of the Court – Status of the referring body as a court or tribunal – Procurement procedure in railway infrastructure sector – Negotiated procedure – Directive 2004/17/EC – Article 10 – Article 51(3) – Principle of equal treatment of tenderers – Group composed of two companies and admitted as such as a tenderer – Tender submitted by one of the two companies, in its own name, the other company having been declared insolvent – Company considered to be capable, by itself, of being admitted as a tenderer – Contract awarded to that company

C-396/14, [2016] EUECJ C-396/14, ECLI:EU:C:2016:347
Bailii
TFEU 267
European

Jurisdiction

Updated: 19 January 2022; Ref: scu.564890

George Haldane, Esq of Gleneagles v The Hon John Elphinston of Cumbernauld, Assignee of The Now Deceased Geo Keith, Late Earl Marischall: HL 11 Apr 1780

Jurisdiction – Res Judicata – Interest.-
A claim was preferred to the Barons of Exchequor, acting under a particular act of Parliament, and the amount of the claim adjusted, but the Barons disallowed interest thereon: An appeal was taken to the House of Lords, and dismissed as incompetent: In a new action brought before the Court of Session, held that it was competent to the Court to entertain the question, and objection to the competency repelled; and decerned for the amount of the claims, but without interest. Affirmed on appeal.

[1780] UKHL 2 – Paton – 546, (1780) 2 Paton 546
Bailii
Scotland

Jurisdiction

Updated: 12 January 2022; Ref: scu.561501

Knight v Axa Assurances: QBD 24 Jul 2009

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.

Sharp J
[2009] EWHC 1900 (QB), [2009] Lloyds Rep IR 667
Bailii
Brussels I (Council Regulation 44/2001, Supreme Court Act 1981 35A
England and Wales
Citing:
CitedRaffelsen Zentralbank Osterreich Ag v Five Star General Trading Llc and Others CA 1-Mar-2001
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 . .
CitedMaher and Another v Groupama Grand Est QBD 23-Jan-2009
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. . .
CitedFBTO Schadeverzekeringen v Jack Odenbreit ECJ 13-Dec-2007
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 . .
CitedHarding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
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: . .
CitedCriminal proceedings against Ruiz Bernaldez ECJ 28-Mar-1996
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 . .
CitedMendes Ferreira and Delgado Correia Ferreira v Companhia de Seguros Mundial Confianca SA ECJ 14-Sep-2000
ECJ 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 of . .
CitedMacmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) CA 2-Nov-1995
The question of ownership of a company is to be decided according to law of country where the 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 . .
CitedMacmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) ChD 1-Jul-1993
Bona fide chargees for value of shares situated in New York and held on trust for Macmillan were able, by application of New York law, to take the shares free of Macmillan’s prior equitable interest of which the chargees had had no notice. Where . .
CitedJefford v Gee CA 4-Mar-1970
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 . .
CitedMidland International Trade Services v Al Sudairy ChD 11-Apr-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. . .
CitedKuwait Oil Tanker Company SAK and another v Bader and others 17-Dec-1998
. .

Cited by:
CitedMaher and Another v Groupama Grand Est CA 12-Nov-2009
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 . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages, Jurisdiction

Updated: 12 January 2022; Ref: scu.375078

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

When considering allowing proceedings here, the court must consider the the effect on related proceedings in another jurisdiction.

The Hon Mr Justice Moore-Bick
[2003] EWHC 2632 (Comm)
Bailii
England and Wales
Cited by:
CitedIslamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
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 fromLimit (No 3) Ltd and others v PDV Insurance Company CA 11-Apr-2005
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.
Jurisdiction

Updated: 12 January 2022; Ref: scu.187556

Magellan Spirit Aps v Vitol Sa ‘Magellan Spirit’: ComC 4 Mar 2016

The Owner of the Magellan Spirit applied for an anti-suit injunction to restrain VSA from suing the Owner in Nigeria on the ground that the parties had agreed to refer the dispute to the jurisdiction of the High Court in London. VSA denies that there is such an agreement and has cross-applied for a declaration that the English court has no jurisdiction to try the Owner’s claim in this action.

Leggatt J
[2016] EWHC 454 (Comm)
Bailii

Jurisdiction

Updated: 11 January 2022; Ref: scu.560756

The Bishop of Aberdeen v John Ogilvie: SCS 3 Jul 1563

The Lordis of Sessioun allanerlie, and na uther judge, ar jugeis competent to actiounis of reductioun of infeftmentis, evidentis, or sasines, and of all actiounis of heritage betwix all the liegis of this realme, spiritual or temporal, and to all obligatiounis and contractis followand as accessory thairupon; except special provisioun be maid in the infeftment, that in cais of contraventioun of ony heid or clause contenit thairintil, the maker thairof, and his successouris, sall be jugeis competent, and tak cognitioun thairanent.

[1563] Mor 7324
Bailii

Scotland, Jurisdiction

Updated: 11 January 2022; Ref: scu.560740

Winkler and Another v Shamoon and Others: ChD 15 Feb 2016

The claimants sought a declaration as against the residuary beneficiaries (wife and daughter) under the will, saying that the claimants had a beneficial interest in company shares within the estate. The defendants fild acknowledgments of service but asserting expressly that they did not submit to the jurisdiction of the court. The claimants said that the acknowledgment was enough to provide jurisdiction.
Held: The declaration was granted. Acknowledgment in the form used was not to be taken as the defendant having entered. It would undermine the purpose of the of Regulation to read national procedural rules so as to compel a defendant to enter an appearance. Whether a defendant had in fact entered an appearance depended on whether there had in fact been a submission to the jurisdiction according to the local law. Also the claim was outside Regulation (EC) 44/2001 because its main subject matter was ‘succession’ within article 1(2)(a) of the Regulation.

Henry Carr J
[2016] EWHC 217 (Ch), [2016] WLR(D) 101
Bailii, WLRD
Civil Procedure Rules 11(2), Regulation (EC) 44/2001 1(2)(a) 24
England and Wales
Citing:
CitedElefanten Schuh Gmbh v Pierre Jacqmain ECJ 24-Jun-1981
ECJ 1. Article 18 of the convention of 27 September 1968 on Jurisdiction and the enforcement of judgments in civil and commercial matters applies even where the parties have by agreement designated a court which . .
CitedHarada Limited (T/A Chequepoint) v Turner CA 2-Dec-2003
Applications for leave to appeal. The claimant had alleged unfair dismissal. The respondent denied jurisdiction. . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Wills and Probate, European

Updated: 10 January 2022; Ref: scu.560278

Hill v Generali Zrt: QBD 14 Dec 2021

Whether a subrogated claim by an insurer can be brought in the name of an English motorist in an English court together with his claim for uninsured losses against a Hungarian insurer in respect of a pre-Brexit accident in Germany. The judge below held that it could not but acknowledged that the question was not free from doubt and granted the motorist permission to appeal.

The Honourable Mr Justice Pepperall
[2021] EWHC 3381 (QB)
Bailii
England and Wales

Insurance, Jurisdiction

Updated: 10 January 2022; Ref: scu.670544

Apollo Ventures Co Ltd v Manchanda: ComC 30 Nov 2021

Application by the Defendant that the Court stay the proceedings brought against him by the Claimant on the grounds that Thailand is the forum which is clearly and distinctly the more appropriate forum for the trial of this action.

Sir Nigel Teare,
Sitting as a Judge of the High Court
[2021] EWHC 3210 (Comm)
Bailii
England and Wales

Jurisdiction

Updated: 09 January 2022; Ref: scu.670488

Crociani and Others v Crociani and Others: PC 26 Nov 2014

(Court of Appeal of the Bailiwick of Jersey ) ‘The principal issue on this appeal is whether proceedings (‘the Proceedings’) brought in the Royal Court of Jersey by Cristiana Crociani (‘Cristiana’) and others (‘the respondents’) against her mother Edoarda Crociani (‘Mme Crociani’) and others (‘the appellants’) should be stayed on the ground that they were brought in breach of an exclusive jurisdiction clause contained in clause 12 of a Trust Deed made on 24 December 1987 (‘the 1987 Deed’). The determination of this issue involves resolving the following disputes, namely (i) (a) whether clause 12 of the 1987 Deed (‘clause 12′) is an exclusive jurisdiction clause, and (b) if so, in the events which have happened, whether it confers exclusive jurisdiction on the courts of Mauritius in respect of the claims made in the Proceedings, and (ii) if so, whether the Proceedings should be stayed. The appellants contend that the answer to these questions is yes, and the respondents argue that it is no.’

Lord Neuberger,Lord Mance, Lord Reed, Lord Hughes, Lord Hodge
[2014] UKPC 41
Bailii, Baiii Summary
England and Wales

Jurisdiction, Trusts

Updated: 08 January 2022; Ref: scu.539286

Athena Capital Fund Sicav-Fis SCA and Others v Secretariat of State for The Holy See: ComC 26 Nov 2021

Defendant’s application to set aside service of the Claim Form or to stay these proceedings on the basis that the Court has no jurisdiction over them, or should not exercise such jurisdiction as it may have, or should stay the proceedings pending certain events. The claim is mainly for declarations and the Defendant’s contention is that its purpose and/or effect would be to prejudice a criminal investigation overseas.

Mr Simon Salzedo QC (Sitting as a Judge of the High Court)
[2021] EWHC 3166 (Comm)
Bailii
England and Wales

Jurisdiction

Updated: 06 January 2022; Ref: scu.670489

Maxter Catheters Sas and Another v Medicina Ltd: ComC 30 Oct 2015

Dispute as to where claims between parties should be heard. The Claimants wish the claims to be heard in England. The Defendant wishes the claims to be heard in France. The Defendant has issued an application seeking an order that the proceedings issued in England by the Claimants should be stayed. Any such stay is opposed by the Claimants.

Teare J
[2015] EWHC 3076 (Comm)
Bailii

Jurisdiction

Updated: 05 January 2022; Ref: scu.554220

The Governor and Company of Undertakers for Raising Thames Water In York Buildings v John Haldane, Esq;: HL 14 Apr 1725

Jurisdiction – The York Buildings Company, which had purchased large estates in Scotland, was liable to be sued in that country, in a personal action relative to a transfer of stock, though such transfer could only be made in London.

[1725] UKHL Robertson – 521, (1725) Robertson 521
Bailii
Scotland

Jurisdiction

Updated: 05 January 2022; Ref: scu.554118

SF v HL: FD 8 Oct 2015

The Court was asked to decide whether it had jurisdiction in relation to R. R is the child of HL (the mother) and SF (the father). The parents are separated. The mother is a South Korean national. When present in the United Kingdom her immigration status is governed by a spousal visa which expires on 1 December 2015. The father is British and resides in England. R holds joint South Korean and British nationality.

MacDonald J
[2015] EWHC 2891 (Fam)
Bailii
England and Wales

Children, Jurisdiction

Updated: 05 January 2022; Ref: scu.553919

Jong v HSBC Private Bank (Monaco) Sa: CA 22 Oct 2015

The court was asked whether the court had been wrong to set aside an order permitting Ms Jong to serve proceedings on HSBC Private Bank (Monaco) SA, a company domiciled in and carrying on business in Monaco. Between May 2007 and March 2009 HSBC (Monaco) placed a number of trades in foreign currency on her behalf, almost all of which were effected in Monaco and were governed by Monegasque law.

Moore-Bick VP CA, Lewison, LJJ, Sir Timothy Lloyd
[2015] EWCA Civ 1057
Bailii
England and Wales

Jurisdiction

Updated: 05 January 2022; Ref: scu.553683

Consorci Sanitari Del Maresme v Corporacio de Salut del Maresme i la Selva: ECJ 6 Oct 2015

ECJ Judgment – Reference for a preliminary ruling – Article 267 TFEU – Jurisdiction of the Court – Status of the referring body as a court or tribunal – Independence – Compulsory jurisdiction – Directive 89/665/EEC – Article 2 – Bodies responsible for review procedures – Directive 2004/18/EC – Articles 1(8) and 52 – Public procurement procedures – Meaning of ‘public entity’ – Public authorities – Inclusion

C-203/14, [2015] EUECJ C-203/14, [2015] WLR(D) 398, ECLI:EU:C:2015:664, [2016] PTSR 277
Bailii, WLRD
European

Jurisdiction

Updated: 04 January 2022; Ref: scu.553091

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

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.

Langstaff P J
[2015] UKEAT 0396 – 14 – 2807
Bailii
England and Wales

Employment, Jurisdiction

Updated: 03 January 2022; Ref: scu.550674

Brownlie v Four Seasons Holdings Incorporated: CA 3 Jul 2015

The claimant commenced an action here after suffering injury whilst in Egypt on an excursion organised under the control of the defendant. The defendant denied jurisdiction as regards the damage suffered.
Held: The defendant’s appeal was allowed in part. The use of the word ‘damage’ in the Regulation could not be relied upon to create a false distinction between ‘any damage’ and ‘the direct damage’.

Arden, Bean, King LJJ
[2015] EWCA Civ 665, [2015] 2 CLC 151, [2015] CP Rep 40, [2016] PIQR P2, [2015] WLR(D) 292, [2016] 1 WLR 1814
Bailii, WLRD
Council Regulation (EC) No 864/2007, Civil Procedure Rules 6, Law Reform (Miscellaneous Provisions) Act 1934
England and Wales
Cited by:
At CAFour Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, European, Personal Injury, Torts – Other, Civil Procedure Rules

Updated: 01 January 2022; Ref: scu.549764

TSN Kunststoffrecycling Gmbh v Jurgens: CA 25 Jan 2002

The claimant sought to register and enforce here, a judgment obtained by default in Germany. It was argued that he had not had, under section 27(2) sufficient opportunity to make a proper reply to the proceedings, and that the Brussels Convention created a right of appeal outside the range of appeals under the Civil Procedure Rules. An initial two week period had been set by the German Court, but extended to five weeks, in effect two weeks after delivery of notice of the proceedings. The defendant was absent on holiday when the proceedings were served, and he argued that that should have been taken as exceptional reasons for extending the time allowed for answering the claim.
Held: The needs to simplify registration of judgements abroad, and to safeguard those served with notice of proceedings commenced in a foreign court had to be balanced. The court should test the question of sufficient time against the full facts, and not merely enter judgement because there has been a default of appearance. The crucial time was the entire period up to judgement being entered. The appeal was dismissed, and reference to European Court refused.
courtcommentary.com For purposes of article 27(2) of Brussels Convention (service ‘in sufficient time’ to enable party, against whom enforcement is sought, to arrange for defence), the relevant period of time begins with due service and ends with issue of default judgment

Lord Justice Robert Walker, Lord Justice Rix, And, Lord Justice Dyson
Times 20-Feb-2002, Gazette 15-Mar-2002, [2002] EWCA Civ 11, [2002] 1 WLR 2459, [2002] 1 All ER (Comm) 282
Bailii
Civil Jurisdiction and Judgments Act 1982, Access to Justice Act 1999, Civil Procedure Rules, Brussels Convention 1968 27(2)
England and Wales
Citing:
CitedKlomps v Michel ECJ 16-Jun-1981
The words ‘the document which instituted the proceedings’ contained in article 27, point 2, of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters cover any document, such as the order . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Civil Procedure Rules, European

Updated: 01 January 2022; Ref: scu.167467

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

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.’

Lord Phillips, President, Lady Hale, Lord Brown, Lord Judge, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Sir Anthony Hughes
[2012] UKSC 35, UKSC 2010/0182, [2012] 5 Costs LO 668, [2012] 3 WLR 379, [2012] WLR(D) 238
Bailii, Bailii Summary, SC Summary, SC, WLRD
Proceeds of Crime Act 2002, 1990 Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime
England and Wales
Citing:
At First instanceSerious Organised Crime Agency v Perry and Others Admn 30-Jul-2009
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 . .
CitedRegina v Cuthbertson HL 1981
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 . .
CitedGovernment of the Republic of Spain v National Bank of Scotland SCS 24-Feb-1939
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 . .
CitedSociete Eram Shipping Company Ltd v Compagnie International De Navigation and Others CA 7-Aug-2001
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 . .
CitedSociete Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
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 . .
CitedPattni v Ali and Another PC 20-Nov-2006
(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 fromPerry and Others v Serious Organised Crime Agency CA 18-May-2011
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 fromSerious Organised Crime Agency v Perry and Others CA 29-Jul-2010
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. . .
CitedKing v Director of the Serious Fraud Office HL 18-Mar-2009
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 FromSerious Organised Crime Agency v Perry Admn 28-Jun-2010
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 . .

Cited by:
CitedWaya, Regina v SC 14-Nov-2012
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 . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, International, Jurisdiction

Updated: 31 December 2021; Ref: scu.463144

Petter v EMC Europe Ltd and Another: QBD 22 May 2015

‘Two applications before the Court: (i) the Second Defendant (EMC Corporation) applies to challenge the Court’s jurisdiction over the claimant’s (Mr Petter’s) claim against it (the Part 11 Application); and (ii) Mr Petter applies for an interim anti-suit injunction against EMC Corporation restraining, pending determination of Mr Petter’s claim, further prosecution of its proceedings against him in Massachusetts (the Massachusetts Proceedings) (the Anti-Suit Application). ‘

Cooke J
[2015] EWHC 1498 (QB)
Bailii
England and Wales

Jurisdiction, Litigation Practice

Updated: 30 December 2021; Ref: scu.547124

Erste Group Bank Ag London Branch v J ‘VMZ Red October’ and Others: CA 17 Apr 2015

Appeal by the third defendant Rosteckhnologii, and by the fifth defendant, D3 and D5 against orders by which Flaux J dismissed applications made by D3 and D5 pursuant to CPR Part 11, challenging the jurisdiction of the English court and seeking to set aside service of the proceedings upon them outside the jurisdiction in Russia.

Aikens, Gloster, Briggs LJJ
[2015] EWCA Civ 379
Bailii
England and Wales

Jurisdiction

Updated: 29 December 2021; Ref: scu.545617

Soriano v Forensic News Llc and Others: CA 21 Dec 2021

Appeal and a cross-appeal against a decision of Jay J by which he granted the claimant permission to serve five media defendants in their jurisdictions of domicile in the United States of America with proceedings for libel and limited claims for misuse of private information, but refused permission to serve a variety of other claims advanced by the claimant. The defendants’ appeal challenges the grant of permission to serve the libel claim. It raises issues about s 9 of the Defamation Act 2013, which contains a new test for jurisdiction over libel claims against those domiciled abroad. The claimant’s cross-appeal challenges the refusal to allow service of claims in data protection and malicious falsehood. It raises issues about the territorial scope of the General Data Protection Regulation (GDPR) and requires us to consider whether the Judge was right to find that the claimant’s malicious falsehood claims are untenable.

Dame Victoria Sharp, President of the Queen’S Bench Division,
Lady Justice Elisabeth Laing,
And,
Lord Justice Warby
[2021] EWCA Civ 1952
Bailii, Judiciary
England and Wales
Citing:
Appeal FromSoriano v Forensic News Llc and Others QBD 15-Jan-2021
Claimant’s contested application to serve-out. . .
See AlsoSoriano v Forensic News Llc and Others QBD 13-Apr-2021
Claim in defamation and misuse of private information. . .

Lists of cited by and citing cases may be incomplete.

Defamation, Jurisdiction, Information

Updated: 29 December 2021; Ref: scu.670640

Lopesan Touristik Sa v Apollo European Principal Finance Fund Iii (Dollar A) LP and Others: ComC 8 Oct 2020

Judgment following the expedited hearing of:
i) the Claimant’s application for directions for an expedited trial with a view to having its dispute with the Defendants determined before the end of this year; and
ii) Apollo’s application for a stay of proceedings under Article 30(1) of the recast Brussels Regulation 1215/2012

Mr Justice Foxton
[2020] EWHC 2642 (Comm)
Bailii
England and Wales

Jurisdiction

Updated: 29 December 2021; Ref: scu.657562

PCL and Others v The Y Regional Government of X: ComC 23 Jan 2015

The Defendant, YRG applied to set aside without notice orders permitting the Claimants to serve an arbitration claim form and other documents on YRG at the address of their solicitors in the jurisdiction and setting down an expedited timetable for the determination of the arbitration claim, and abridging the time for filing an acknowledgment of service to 3 business days. YRG contended that the court had no power to make the Orders by reason of the mandatory provisions of s.12 of the 1978 Act. Further or alternatively, that the Orders should be set aside for failure to make full and fair disclosure. The application succeeded, and the orders were set aside.

Hamblen J
[2015] EWHC 68 (Comm)
Bailii
State Immunity Act 1978 12

Jurisdiction, International, Arbitration

Updated: 27 December 2021; Ref: scu.542026

Handelswerkerij GJ Bier BV v Mines de Potasse d’Alsace SA: ECJ 1976

The Dutch plaintiff claimed that the water supply to its nursery had been polluted by the French defendant’s discharge of waste into the Rhine in France.
Held: The meaning of the expression: ‘Place where the harmful event occurred’ must be established in such a way as to acknowledge that the plaintiff has an option to commence proceedings either at the place where the damage occurred or the place of the event giving rise to it’ because either place constituted a significant connecting factor from the point of view of jurisdiction. ‘Liability in tort, delict or quasi delict can only arise provided that a causal connection can be established between the damage and the event in which that damage originates.’

[1978] QB 708, [1976] ECR 1735
European
Cited by:
CitedShahar v Tsitsekkos and others ChD 17-Nov-2004
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 . .
CitedCasio Computer Co Ltd v Sayo and others CA 11-Apr-2001
The court was asked whether a constructive trust claim based on dishonest assistance is a matter ‘relating to tort, delict or quasi delict’ for the purpose of Article 5(3) of the Brussels Convention?
Held: A constructive trust claim based upon . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 27 December 2021; Ref: scu.220245

Snetzko v Snetzko: 27 Jun 1996

(Ontario – Superior Court of Justice) APPEAL – Grounds – Factual findings by trial judge – Deference to trial judge’s factual determinations and findings – Where trial judge has had chance to observe witnesses while testifying and to draw conclusions about credibility, appeal court should not interfere in those factual findings, especially in child custody case, unless reasons show manifest error or significant misapprehension of evidence, or judge’s drawing erroneous conclusions from evidence or judge’s ignoring any evidence – In this case, however, trial judge disposed of case by way of affidavit evidence rather than viva voce testimony – Under those circumstances, appellate court might be sorely tempted to substitute its views for those of trial judge, but that temptation should be resisted – Arguably, threshold for appellate interference would not be as high as in case where oral testimony was given, but measure of deference should still be shown to trial judge’s findings.
CUSTODY OF CHILD – Jurisdiction – Habitual residence of child – Residing with one parent – With ‘consent, implied consent or acquiescence’ of other parent – Parents lived in United States with two children, although mother regularly brought children to her native Ontario to visit maternal grandparents and extended family – When marriage broke down, mother purported to move to Ontario with children, although father’s notarized letter (for immigration purposes) gave her permission to travel to Ontario with the children for only 4 months – When mother applied to Ontario court for custody of children, trial judge concluded that father’s time-limited consent constituted acquiescence to relocation by mother and children and that Ontario court therefore had jurisdiction to hear mother’s application – Father appealed – In face of this limited consent, appeal court could not understand how trial judge could have concluded that father had consented or acquiesced – Trial judge had misapprehended evidence – Children were not habitually resident in Ontario and Ontario court could not assume jurisdiction under clause 22(1)(a) of Children’s Law Reform Act – Father’s appeal succeeded under clause 22(1)(a) but failed under clause 22(1)(b).
CUSTODY OF CHILD – Jurisdiction – Jurisdiction despite lack of habitual residence – Six-part test under clause 22(1)(b) of Children’s Law Reform Act – Availability in Ontario of substantial evidence about child’s best interests – Parents lived in United States with two children, although mother regularly brought children to her native Ontario to visit maternal grandparents and extended family – When marriage broke down, father had prepared notarized letter (for immigration purposes) giving mother permission to travel to Ontario with the children for only 4 months – When mother applied to Ontario court for custody of children, trial judge noted that children’s had lived in stable Ontario residence for 4 months and he accepted mother’s evidence about persons in Ontario who could testify about her parenting ability and about children’s welfare – Judge agreed that test under subclause 22(1)(b)(ii) was whether such evidence were available in Ontario, not comparison of whether more substantial evidence were available in Ontario or in New York state – Appeal court found that trial judge was entitled to come to this conclusion on evidence before him and that there was no significant misapprehension of evidence or that any evidence has been ignored or that erroneous conclusion had been drawn from it.
CUSTODY OF CHILD – Jurisdiction – Jurisdiction despite lack of habitual residence – Six-part test under clause 22(1)(b) of Children’s Law Reform Act – Balance of convenience to exercise jurisdiction in Ontario – Parents lived in United States with two children, although mother regularly brought children to her native Ontario to visit maternal grandparents and extended family – When marriage broke down, father had prepared notarized letter (for immigration purposes) giving mother permission to travel to Ontario with the children for only 4 months – When mother applied to Ontario court for custody of children, trial judge was impressed by mother’s filing of affidavit that listed witnesses whom she would call, whereas father, for whatever reason, did not do so – Appeal court ruled that, on this basis, trial judge was entitled to find that it was appropriate for jurisdiction to be exercised in Ontario under subclause 22(1)(b)(v) – There was no manifest error, misapprehension of evidence or any erroneous conclusions drawn from evidence in this finding – No reason to disturb trial judge’s decision to assume jurisdiction under clause 22(1)(b) of Act.
CUSTODY OF CHILD – Jurisdiction – Jurisdiction despite lack of habitual residence – Six-part test under clause 22(1)(b) of Children’s Law Reform Act – Child’s real and substantial connection with Ontario – Parents lived in United States with two children, although mother regularly brought children to her native Ontario to visit maternal grandparents and extended family – When marriage broke down, father had prepared notarized letter (for immigration purposes) giving mother permission to travel to Ontario with the children for only 4 months – When mother applied to Ontario court for custody of children, trial judge noted that children’s connection with maternal grandparents and uncle was based not just on past 4 months spent with them but on several trips to Ontario before parents separated – Because of their relatively young age, they were less likely to have independent connection with New York and were more dependent on mother who had real and substantial connection with Ontario – Appeal court thus concluded that, on basis of evidence before him, trial judge was entitled to find that children had real and substantial connection with Ontario, thus meeting requirements of subclause 22(1)(b)(v).

Justice James D. Carnwath
1996 CanLII 11326 (ON SC)
Canlii
Canada
Cited by:
CitedRe C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .

Lists of cited by and citing cases may be incomplete.

Children, International, Jurisdiction

Updated: 27 December 2021; Ref: scu.654501

Enemalta Plc v The Standard Club Asia Ltd: ComC 26 Apr 2021

Hearing of an application by the defendant for an order that this court has no jurisdiction to hear this claim or should decline to do so, and for an order setting aside or staying these proceedings in favour of the courts of Singapore.

His Honour Judge Pelling QC,
Sitting as a Judge of the High Court
[2021] EWHC 1215 (Comm)
Bailii
England and Wales

Jurisdiction

Updated: 27 December 2021; Ref: scu.667384

Chai v Peng (2): FD 17 Oct 2014

Bodey J
[2014] EWHC 3518 (Fam)
Bailii
England and Wales
Citing:
See AlsoChai v Peng FD 13-Mar-2014
Application for further maintenance pending suit. . .
See AlsoChai v Peng FD 1-May-2014
The court was severely critical of the practice in divorce proceedings of uissuing a petition for divorce but then not serving it for some time. Holman J referred to a colourful metaphor deployed by leading counsel for the husband: ‘To file [a . .
See AlsoChai v Peng (1) FD 17-Oct-2014
. .

Cited by:
See AlsoChai v Peng CA 12-Jun-2015
Application to adjourn full hearing of appeal. . .

Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction

Updated: 23 December 2021; Ref: scu.538864

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

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 was to be determined was whether or not it had an ‘establishment’ in this country for the purposes of the Insolvency Regulation.
Mann J explained what amounted to economic activity within the meaning of the Regulation: ‘ However, I do not think that it amounts to economic activity within the meaning of the Regulation. By the time of the petition it seems that the only ‘activity’ (and I deliberately put it in inverted commas) was to sit there being liable on guarantees, sometimes paying out on them, and perhaps doing whatever else was necessary to keep itself alive in terms of compliance with formalities such as company filings. Mr Wetheral (or perhaps his staff) occasionally sought legal or accounting advice, but there is no evidence it was doing anything else. Being in a state of liability, with the need sometimes to pay out on that liability and take a bit of advice, is not an economic activity for the purposes of the Regulation. Neither is seeking accounting or legal assistance on other matters. Forwarding post (which is said to have happened at Chertsey) is not an economic activity carried on there. It is something which goes on so that someone can carry it on somewhere else. Utilising the guidance given in the Virgos-Schmit report, it is not conducting activities on the market.
The activities necessary for compliance (filing and so on) are not, apparently, carried out at the Chertsey office. They are therefore not carried out at the only candidate for a place of operations.
Even if I am wrong as to whether Office Metro’s residual activities are economic activity for the purposes of the Regulation, I do not consider that they are non-transitory. They are not a consistent activity. The activities involved in paying up on guarantees do not have the character of a consistent business or business-type activity. They arise as and when needed, and were all going well in the underlying group they would not arise at all. The concept of ‘establishment’ is the one chosen as the touchstone of sufficient presence to justify the opening of insolvency proceedings. There are three ingredients for these purposes: (i) a place where things happen, and (ii) sufficient things (iii) of sufficient quality happening there. The concept of non-transitoriness goes to the third of them. In my view the converse of something being transitory is not confined merely to things which are ‘fleeting’ (to use one English synonym) but is also intended to encapsulate such things as the frequency of the activity; whether it is planned or accidental or uncertain in its occurrence; the nature of the activity; and the length of time of the activity itself. When measured against all these elements I consider that the activities of procuring payment on the guarantees is transitory (or not non-transitory) for the purposes of the Regulation. This is to a large extent a value judgment in respect of which one cannot be prescriptive of the elements to be fulfilled (or not fulfilled), but in my view it is plain that if the activities were otherwise economic activities they would, for these purposes, be ‘transitory’ for the purposes of the Regulation.’

Mann J
[2012] EWHC 1191 (Ch), [2012] ILPr 30, [2012] BCC 829, [2012] BPIR 1049
Bailii
EU Regulation 1346/2000 3
England and Wales
Cited by:
CitedOlympic Airlines Sa Pension and Life Assurance Scheme v Olympic Airlines Sa ChD 29-May-2012
Olympic Airlines, incorporated in Greece, but with headquarters in London, went into liquidation. The pensions scheme had been run with a deficit. The trustees no sought the winding up of the company under British law.
Held: To be an . .
CitedOlympic Airlines Sa Pension and Life Insurance Scheme v Olympic Airlines Sa CA 6-Jun-2013
The court considered the the jurisdiction under EU law to commence a secondary winding-up in England of a company whose main liquidation is taking place in Greece. That depended upon whether the company, registered in Greece had a sufficient . .
CitedOlympic Airlines Sa Pension and Life Assurance Scheme, The Trustees of The v Olympic Airlines Sa SC 29-Apr-2015
The airline was incorporated in Greece but with an office in the UK. It became insolvent leaving a deficit in the UK employee pension scheme. The trustees of the fund sought a secondary insolvency within the UK, and now a reference to the European . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Jurisdiction

Leading Case

Updated: 23 December 2021; Ref: scu.457573

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

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.

[2008] EWHC 259 (Ch), [2008] 3 WLR 309
Bailii
Council Regulation (EC) 44/2001 5(6), Jurisdiction and Judgments Act 1982
England and Wales
Cited by:
Appeal fromGomez and others v Vives CA 3-Oct-2008
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 . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 23 December 2021; Ref: scu.264586

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

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.

Justice Lawrence Collins
Times 31-Jan-2002, [2001] EWHC Ch 470, [2002] 1 WLR 1269
Bailii
Civil Procedure Rules 19.9 6.21 2(a)
England and Wales
Citing:
CitedPrudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
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 . .
CitedHeyting v Dupont CA 1964
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 . .
AppliedBP Exploration Co (Libya) Ltd v Hunt 1976
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 by:
CitedBAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
CitedIslamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
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 . .
CitedMetropolitan International Schools Ltd. (T/A Skillstrain And/Or Train2Game) v Designtechnica Corp (T/A Digital Trends) and Others QBD 16-Jul-2009
The claimant complained that the defendant had published on its internet forums comments by posters which were defamatory of it, and which were then made available by the second defendant search engine. The court was asked what responsibility a . .
CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
CitedIesini and Others v Westrip Holdings Ltd and Others ChD 16-Oct-2009
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company, Civil Procedure Rules

Updated: 23 December 2021; Ref: scu.167403

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

Developing Law – Summary Procedures Very Limited

(Isle of Man) (‘Altimo’) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable in Kyrgyzstan.
Held: Lord Collins said: ‘The general rule is that it is not normally appropriate in a summary procedure (such as an application to strike out or for summary judgment) to decide a controversial question of law in a developing area, particularly because it is desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts: e.g. Lonrho Plc. v. Fayed [1992] 1 AC 448 , 469 (approving Dyson v Att-Gen [1911] 1 KB 410, 414: summary procedure ‘ought not to be applied to an action involving serious investigation of ancient law and questions of general importance . .’); X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 741 (‘Where the law is not settled but is in a state of development . . it is normally inappropriate to decide novel questions on hypothetical facts’); Barrett v Enfield London BC [2001] 2 AC 550, 557 (strike out cases); Home and Overseas Insurance Co. Ltd. v Mentor Insurance Co. (U.K.) Ltd. [1990] 1 WLR 153 (summary judgment). In the context of interlocutory injunctions, in the famous case of American Cyanamid Co v Ethicon Ltd [1975] AC 396, 407 it was held that the court must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried. It was no part of the court’s function ‘to decide difficult questions of law which call for detailed argument and mature consideration.’ . . In Seaconsar Far East Ltd. v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438, 452, Lord Goff said that if, at the end of the day, there remained a substantial question of fact or law or both, arising on the facts disclosed by the affidavits, which the plaintiff bona fide desired to try, the court should, as a rule, allow the service of the writ. The standard of proof in respect of the cause of action could broadly be stated to be whether, on the affidavit evidence before the court, there was a serious question to be tried . . There is no reason why the same principle should not apply to the question whether, in a service out of the jurisdiction case . . a claim is ‘bound to fail’ as well as to the question whether there is a ‘serious issue to be tried’ . .’
Lord Collins of Mapesbury set out the three principle requirements for service out of the jurisdiction;
first, the claimant must satisfy the court that, in relation to the foreign defendant to be served with the proceedings, there is a serious issue to be tried on the merits of the claim, ie a substantial question of fact or law or both. There has to be a real, as opposed to a fanciful, prospect of success on the claim.
Secondly, the claimant must show a good arguable case that the claim against the foreign defendant falls within one or more of the classes of case for which leave to serve out of the jurisdiction may be given. ‘Good arguable case’ means that the claimant has a much better argument than the foreign defendant. Where a question of law arises in connection with a dispute about service out of the jurisdiction and that question of law goes to the existence of the jurisdiction then the court will normally decide the question of law, as opposed to seeing whether there is a good arguable case on that issue of law.
Thirdly, the claimant must satisfy the court that in all the circumstances England is clearly or distinctly the appropriate forum for the trial of the dispute and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.

Lord Phillips, Lord Mance, Lord Collins, Lord Kerr, Lord Dyson
[2011] UKPC 7, [2012] 1 All ER (Comm) 319, [2011] 1 CLC 205, [2012] 1 WLR 1804, [2011] 4 All ER 1027
Bailii
England and Wales
Cited by:
CitedNML Capital Ltd v Argentina SC 6-Jul-2011
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 . .
CitedVTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
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 . .
CitedAbela and Others v Baadarani SC 26-Jun-2013
The claimants sought damages alleging fraud in a company share purchase. They said that their lawyer had secretly been working for the sellers. The claim form had been issued, but the claimant had delayed in requesting permission for its service . .
AppliedWilliams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
CitedWilliams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
CitedGoogle Inc v Vidal-Hall and Others CA 27-Mar-2015
Damages for breach of Data Protection
The claimants sought damages alleging that Google had, without their consent, collected personal data about them, which was resold to advertisers. They used the Safari Internet browser on Apple products. The tracking and collation of the claimants’ . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
CitedFour Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .
AppliedAhuja v Politika Novine I Magazini Doo and Others QBD 23-Nov-2015
Action for misuse of private information and libel. Application to have set aside leave to serve out of the jurisdiction. The defendant published a newspaper in Serbian, in print in Serbia and online. Though in Serbian, the claimant said that online . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Leading Case

Updated: 22 December 2021; Ref: scu.430511

John Pfeiffer Pty Limited v Rogerson: 16 Apr 1999

(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.

[2000] HCA 36, (2000) 203 CLR 503
Austlii
Australia
Cited by:
CitedHarding v Wealands CA 17-Dec-2004
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 . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Jurisdiction, Torts – Other

Updated: 21 December 2021; Ref: scu.222523

Scottish and Newcastle International Limited v Othon Ghalanos Ltd: HL 20 Feb 2008

The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have jurisdiction of the cargo was ‘delivered’ in England.
Held: The cargo was delivered on being shipped, and the English court had jurisdiction. This was clear under section 32 of the 1979 Act.

Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Mance, Lord Neuberger of Abbotsbury
[2008] UKHL 11
Bailii
Council Regulation (EC) No 44/2001 5(1)(b), Sale of Goods Act 1979 32(1)
England and Wales
Citing:
Appeal fromScottish and Newcastle International Ltd v Othon Ghalanos Ltd CA 20-Dec-2006
. .
CitedIndustrie Tessili Italiana Como v Dunlop Ag. ECJ 6-Oct-1976
Europa The new member states are entitled to submit observations in the context of proceedings relating to the interpretation of one of the conventions, for which provision is made in article 220 of the Treaty, . .
CitedDunlop v Lambert HL 16-Jun-1839
A cargo of whisky was lost in carriage by sea between Leith and Newcastle. A second shipment was made and the loss was claimed. The House was asked whether ‘in a question between a carrier and the person to whom the carrier is responsible in the . .
CitedColor Drack GmbH v LEXX International Vertriebs GmbH (Area Of Freedom, Security and Justice) ECJ 15-Feb-2007
Europa Regulation (EC) No 44/2001 Article 5(1)(b) Special jurisdiction in matters relating to a contract Sale of goods Several places of delivery in a Member State.
The court explained the aim of the . .
CitedP and O Nedlloyd B v Dampskibsselskabet Af, 1912, Aktieselskab, Aktieselskabet Dampskibsselskabet Svendborg v Utaniko Limited, East West Corporation CA 12-Feb-2003
The claimants shipped goods to Chile through the defendant shipping line. The goods were lost. The shippers rights of suit under the contract of carriage had been transferred to a third party.
Held: The shippers as the bank’s principals . .
CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
CitedOwners of Cargo On K H Enterprise v Owners of Pioneer Container PC 29-Mar-1994
Owners who were claiming under a bailment must accept the terms of a sub-bailment to which it had agreed. This result is both principled and just. A sub-bailee can only be said for these purposes to have voluntarily taken into his possession the . .
CitedKwei Tek Chao v British Traders and Shippers QBD 1954
In testing whether a buyer of goods has acted inconsistently with the rights of the seller so as to lose the right of rejection where as in this case, property in the goods has passed to the buyer, the ownership of the seller with which the buyer . .
CitedMorris v CW Martin Ltd CA 1966
Diplock LJ said: ‘The legal relationship of bailor and bailee of a chattel can exist independently of any contract.’ Where goods are lost or damaged, the burden is on the bailee (or sub-bailee) to ‘show – that the loss or damage caused without any . .
CitedAlbacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Transport

Updated: 20 December 2021; Ref: scu.264639