Category: International

Marinari v Lloyd’s Bank: ECJ 19 Sep 1995

A ‘harmful event’ occurred where the physical damage was suffered and not at the time and place of a later financial loss.
Europa The term ‘place where the harmful event occurred’ in Article 5(3) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters does not, on a proper interpretation, cover the place where the victim claims to have suffered financial damage folowing upon initial damage arising and suffered by him in another Contracting State. Although that term may cover both the place where the damage occurred and the place of the event giving rise to it, it cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually arising elsewhere.

Citations:

Times 19-Oct-1995, C-364/93, [1995] ECR I-2719, [1995] EUECJ C-364/93, [1996] QB 217

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Mazur Media Limited and Another v Mazur Media Gmbh in Others ChD 8-Jul-2004
Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to . .
Cited – Cooley v Ramsey QBD 1-Feb-2008
The claimant sought damages after being severely injured in a road traffic accident in Australia caused by the defendant. The defendant denied that the court had jurisdiction to permit service out of the jurisdiction. The claimant said that the . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 03 February 2022; Ref: scu.161183

Islamic Republic of Iran Shipping Lines and Others v Council: ECFI 17 Feb 2017

ECJ (Judgment) Common foreign and security policy – Restrictive measures taken against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Plea of illegality – Legal basis – Misuse of powers – Rights of the defence – Legitimate expectations – Legal certainty – Ne bis in idem – Res judicata – Proportionality – Manifest error of assessment – Fundamental rights

Citations:

ECLI:EU:T:2017:102, [2017] EUECJ T-14/14

Links:

Bailii

Jurisdiction:

European

International, Natural Justice

Updated: 31 January 2022; Ref: scu.575267

Alamieyeseigha, Regina (on the Application Of) v Crown Prosecution Service: Admn 25 Nov 2005

The defendant argued that as Governor and Chief Excecutive of Bayelsa State in Nigeria he had sovereign immunity. The Foreign Office had issued a certificate that the defendant was not a Head of States under the 1978 Act. The A-G of Bayelsa had certified that the defendant was a head of State but the A-G of Nigeria certified that he was not, and also that the A-G of Bayelsa was an accomplice in the transactions underlying the charge.
Held: The claim for sovereign immunity failed. ‘Immunity from criminal proceedings is dealt with in section 20(1) of the 1978 Act, which applies immunity for criminal proceedings to ‘a sovereign or other head of State’ the Nigerian courts themselves had denied the status of the state of Bayelsa as a sovereign state. It would only rarely be appropriate to regard a sub-state is entitled to immunity.

Citations:

[2005] EWHC 2704 (Admin), Times 16-Jan-2006

Links:

Bailii

Statutes:

Criminal Justice Act 1988 93C(1)(A), State Immunity Act 1978 21

Citing:

Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Cited – Regina 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. . .
Cited – Mellenger v New Brunswick Development Corporation CA 1971
An entity which is constituted in such a way that its purpose is to assist, promote and advance the industrial development, prosperity and economic welfare of the area in which it operates, can be seen as effectively carrying out government policy . .
Cited – Bank of Credit and Commerce International (Overseas) Ltd (In Liqidation) and Others v Price Waterhouse and Others, Abu Dhabi Etc ChD 25-Jun-1997
A banker disclosing information about a customer’s business affairs save under lawful requirement, would commit a criminal offence. The head of a member of a Federation, the Ruler of Abu Dhabi, was not entitled to immunity while the President of the . .
Cited – Sayce v Ameer Ruler Sadig Mohommed Abbasi Bahawalpur State CA 1952
The court upheld a decision that the defendant was the ruler of Bahawalpur State which had been an independent state prior to the passing of the Indian Independence Act 1947 and the accession of that State to the Dominion of Pakistan. It was . .
Cited – Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (2000-2002) ICJ 14-Feb-2002
‘In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effect of the performance of their functions on behalf of their respective States. In order to . .
Cited – Statham and Statham v Gaekwar of Baroda 1892
The certificate of the Secretary of State confirmed the state immunity of the defendant. . .
Cited – Government of the Republic of Spain v SS ‘Arantzazu Mendi’ HL 1939
The House considered the weight to be given to a certificate as to a statement by HM government as to the recognition of the defendant as a sovereign state: ‘Our State cannot speak with two voices on such a matter, the judiciary saying one thing, . .
Cited – Duff Development Company Limited v Government of Kelantan HL 1924
In a case of any uncertainty as to the diplomatic status of a defendant, a Secretary of State should be asked for the necessary information. The House considered a certificate of recognition provided for the defendant: ‘It is the duty of the Court . .
Cited – Mighell v Sultan of Johore CA 1-Dec-1893
In 1885 the Sultan of Johore came to England, and according to the plaintiff, Miss Mighell, took the name Albert Baker and promised to marry her.
Held: The Sultan was entitled to immunity even though up to the time of suit ‘he has perfectly . .
Lists of cited by and citing cases may be incomplete.

Crime, International

Updated: 31 January 2022; Ref: scu.235340

Airbus Industrie Gie v Patel and Others: CA 12 Aug 1996

The policy allowing restraint of foreign proceedings was not limited to protecting proceedings here. An injunction to restrain proceedings given here after a dismissal of a similar case in the US was proper.

Citations:

Times 12-Aug-1996, Gazette 02-Oct-1996

Jurisdiction:

England and Wales

Citing:

Appeal from – Airbus Industrie Gie v Patel and Others QBD 21-May-1996
A court may grant an anti-suit injunction restricting proceedings but only very rarely. . .

Cited by:

Appeal from – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, International

Updated: 31 January 2022; Ref: scu.77690

Airbus Industrie Gie v Patel and Others: QBD 21 May 1996

A court may grant an anti-suit injunction restricting proceedings but only very rarely.

Citations:

Times 21-May-1996

Jurisdiction:

England and Wales

Cited by:

Appeal from – Airbus Industrie Gie v Patel and Others CA 12-Aug-1996
The policy allowing restraint of foreign proceedings was not limited to protecting proceedings here. An injunction to restrain proceedings given here after a dismissal of a similar case in the US was proper. . .
At first instance – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 31 January 2022; Ref: scu.77689

Turner v Grovit and others: HL 13 Dec 2001

The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English Tribunal system. The defendants had begun procedures in Spain for conciliation. The claimant had obtained an injunction requiring them to discontinue the Spanish proceedings, saying they were merely intended to frustrate the claimant’s rights in English law. The defendants appealed to the House requesting a reference to the European Court of the question of whether an English Court had power to issue such an order.
Held: English courts had had such a power historically. The order is directed to the party not the foreign court. It was not a matter of jurisdiction. The Brussels Convention was intended to simplify such questions and avoid conflicts. The conflict here was only to be answered elsewhere. The question was referred on to the European Court of Justice.

Judges:

Lord Nicholls of Birkenhead Lord Hoffmann Lord Hobhouse of Wood-borough Lord Millett Lord Scott of Foscote

Citations:

[2002] ICR 94, Gazette 14-Feb-2002, [2001] UKHL 65, [2002] 1 WLR 107, [2002] 1 All ER 960 (Note), [2002] 1 All ER (Comm) 320 (Note), [2002] IRLR 358, [2002] ILPr 28, [2002] CLC 463

Links:

House of Lords, Bailii

Statutes:

Civil Jurisdiction and Judgments Act 1982

Jurisdiction:

England and Wales

Citing:

Appeal from – Turner v Grovit and others CA 28-May-1999
A court has an inherent power to injunct a party not to institute or continue proceedings abroad, where they appear intended purely to harass another party in proceedings here. The two actions here were based upon the ‘same contractual relationship’ . .
Cited – Gubisch Maschinenfabrik KG v Giulio Palumbo ECJ 8-Dec-1987
The claimant in Germany sought to enforce a contract by claiming the price of a delivered machine; the claimant in Italy asked for a declaration that no contract had been entered into or, if it had, that it had been discharged by repudiatory conduct . .
Cited – Overseas Union Insurance Ltd and others v New Hampshire Insurance Company ECJ 27-Jun-1991
ECJ Article 21 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that the rules applicable to lis alibi pendens . .
Cited – Lord Portarlington v Soulby 10-Dec-1833
The court of appeal recognised its ability to restrain the commencement of proceedings in other courts and jurisdictions as to the same matter. The power was grounded not upon ‘any pretension to the exercise of judicial rights abroad’ but upon the . .
Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
Cited – British Airways Board v Laker Airways Limited HL 1985
The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful . .
Cited – Fort Dodge Animal Health Ltd v Akzo Nobel Nv CA 27-Oct-1997
(Patents) ‘The United Kingdom courts have jurisdiction to prevent vexation and oppression by persons subject to their jurisdiction. In particular, the courts are entitled to prevent persons domiciled in this country from being submitted to vexatious . .
Cited – Castanho 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 – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – Kongress Agentur Hagen GmbH v Zeehaghe BV ECJ 15-May-1990
Europa Where a defendant domiciled in a Contracting State is sued in a court of another Contracting State pursuant to Article 5(1) of the Brussels Convention of 27 September 1968 on jurisdiction and the . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Referred to – Turner v Grovit ECJ 27-Apr-2004
The claimant had been employed as a solicitor by the respondent at locations across Europe, and came to claim in England that they had wrongly implicated him in unlawful activity. The company sought to issue proceedings in Spain.
Held: The . .

Cited by:

Cited – Exter Shipping Ltd Stanley Shipping Ltd Wyndham Shipping Ltd Crest Shipping Ltd v Glencore International Ag CA 18-Apr-2002
There had been complex multi-party litigation in England. The appellants sought discharge from an anti-suit injunction restraining them from taking some issues to their home court, Georgia in the USA. They contended that the reasons which surrounded . .
Cited – Sabah Shipyard (Pakistan) Ltd v The Islamic Republic of Pakistan and Another CA 14-Nov-2002
An order was sought to restrain proceedings in Pakistan.
Held: The agreement provided that it should be subject to the exclusive jurisdiction of England. The national state was also party to the agreement, and had waived sovereign immunity. It . .
Cited – Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank Ba CA 23-Jan-2004
The claimant sought an order to restrain proceedings in New York. The parties were based in Canada and the Netherlands, with places of business in New York and London also. The swap agreement underlying the claim provide for it to be governed . .
Reference from – Turner v Grovit ECJ 27-Apr-2004
The claimant had been employed as a solicitor by the respondent at locations across Europe, and came to claim in England that they had wrongly implicated him in unlawful activity. The company sought to issue proceedings in Spain.
Held: The . .
Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Cited – Starlight Shipping Company v Allianz Marine and Aviation Versicherungs Ag and Others (Alexandros T) ComC 19-Dec-2011
Starlight had sued its insurers for payment under policies with regard to the Alexandros T. After allegations of serious misconduct were made against some of the insurance underwiters, the matter was settled with full liabiity under the terms of a . .
Lists of cited by and citing cases may be incomplete.

International, Defamation

Updated: 31 January 2022; Ref: scu.167018

Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals: HL 22 Jun 2000

South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of funding and legal representation in South Africa, they would be denied a fair trial on terms of equality with the defendant.
Held: Public Interest issues arising from the prosecution of the case should not prevent the court deciding whether a stay against action should be granted. The claimants’ right to an action in South Africa would be ineffective, and the case would be allowed to proceed in England. Public interest issues not relating to any private law interests of the parties should not affect that question.

Judges:

Lord Hope of Craighead, Lord Bingham of Cornhill

Citations:

Gazette 31-Aug-2000, [2000] UKHL 41, [2000] 4 All ER 268, [2000] 1 WLR 1545

Links:

Bailii

Statutes:

European onvention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Appeal from – Lubbe and others v Cape Plc CA 24-Aug-1999
Although the court had previously decided to hear a multi-party case here, rather than in South Africa, the failure to disclose an impending group action was sufficient to transform the case leaving South Africa as clearly the most appropriate forum . .
Cited – Sim v Robinow 1892
The task of the court in deciding jurisdiction is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice: . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .

Cited by:

Appealed to – Lubbe and others v Cape Plc CA 24-Aug-1999
Although the court had previously decided to hear a multi-party case here, rather than in South Africa, the failure to disclose an impending group action was sufficient to transform the case leaving South Africa as clearly the most appropriate forum . .
Cited – Mukta Gokaldas Hindocha (widow of C S Gheewala) and Others v Mahesh Shamjibhal Juthabhai Gheewala and Others PC 20-Nov-2003
PC (Jersey) The defendant sought a stay of the action, arguing it should be heard in another jurisdiction. He wanted the estate to be administered in Kenya, a jurisdiction which would apply Hindu laws of . .
Cited – Al-Bassam v Al-Bassam CA 1-Jul-2004
The claimant sought administration of her husband’s estate according to his domicile in England. The defendant claimed the estate under Islamic law, and that there had been no marriage, and that he had been domiciled in Saudi Arabia.
Held: The . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Vedanta Resources Plc and Another v Lungowe and Others SC 10-Apr-2019
The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. In the Court of Appeal the defendants’ appeals were dismissed. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, International, Human Rights

Updated: 30 January 2022; Ref: scu.135099

AAA and Others v Unilever Plc and Another: CA 4 Jul 2018

Sales LJ said: ‘There is no special doctrine in the law of tort of legal responsibility on the part of a parent company in relation to the activities of its subsidiary, vis-a-vis persons affected by those activities. Parent and subsidiary are separate legal persons, each with responsibility for their own separate activities. A parent company will only be found to be subject to a duty of care in relation to an activity of its subsidiary if ordinary, general principles of the law of tort regarding the imposition of a duty of care on the part of the parent in favour of a claimant are satisfied in the particular case. The legal principles are the same as would apply in relation to the question whether any third party (such as a consultant giving advice to the subsidiary) was subject to a duty of care in tort owed to a claimant dealing with the subsidiary. Helpful guidance as to relevant considerations was given in Chandler v Cape plc; but that case did not lay down a separate test, distinct from general principle, for the imposition of a duty of care in relation to a parent company.’ and ‘Although the legal principles are the same, it may be that on the facts of a particular case a parent company, having greater scope to intervene in the affairs of its subsidiary than another third party might have, has taken action of a kind which is capable of meeting the relevant test for imposition of a duty of care in respect of the parent.’

Judges:

Lady Justice Gloster
Lord Justice Sales
And
Lord Justice Newey

Citations:

[2018] EWCA Civ 1532

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Vedanta Resources Plc and Another v Lungowe and Others SC 10-Apr-2019
The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. In the Court of Appeal the defendants’ appeals were dismissed. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, International

Updated: 30 January 2022; Ref: scu.618967

Thomas and Another v Frogmore Real Estate Partners Gp1 Ltd and Others: ChD 17 Jan 2017

The court heard applications as to the base of trading of companies registered in Jersey from a point of view of appointing administrators.

Judges:

Philip Marshall QC

Citations:

[2017] EWHC 25 (Ch), [2017] WLR(D) 31

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Insolvency, International

Updated: 29 January 2022; Ref: scu.573847

De 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 this country on a cause of action arising here, And, therefore, where a suit had been brought in the lord mayor’s court against the Queen of Spain upon bonds of the Spanish Government bearing interest payable in London, and moneys, belonging to her as the Sovereign of that country, had been attached in the hands of garnishees in London to compel her appearance, the Court of Queen’s Bench granted a prohibition.
Although the action was not, in form, brought against the Queen as Sovereign it appearing sufficiently by the proceedings that she was charged with liability in that character. The same law prevails, a fortiori, where the action is avowedly grounded on acts done by the defendant in the character of Sovereign. The garnishee, in such a case, is a proper party to move for the prohibition. And it is no objection, that he has put in a plea (nil habet) to the attachment, Nor is the motion premature, if made after the pleading of such plea and before trial of the issue, though no other excess of jurisdiction is imputed to the lord mayor’s court than its having entertained the suit. The motion may also be made by the sovereign prince who is defendant in the mayor’s court, though such defendant has not appeared, and the gar11isheo has not pleaded. The prohibition may go at the instance of a mere stranger.

Lord Campbell
(1851) 17 QB 171, [1851] EngR 22
England and Wales
Citing:
Cited – The 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 . .

Cited by:
Cited – Baccus 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 . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

International

Updated: 27 January 2022; Ref: scu.227918

GPF Gp Sarl v The Republic of Poland: ComC 2 Mar 2018

Brian J
[2018] EWHC 409 (Comm), [2018] WLR(D) 137
Bailii, WLRD
England and Wales
Cited by:
Princial judgment – GPF GP SARl v The Republic of Poland (601) ComC 2-Mar-2018
Request for leave to appeal from successful arbitral jurisdiction challenge . .

Lists of cited by and citing cases may be incomplete.

International, Arbitration

Updated: 27 January 2022; Ref: scu.606423

Ipatau v Council: ECFI 23 Nov 2016

ECJ (Judgment) Common Foreign and Security Policy – Restrictive measures against Belarus – Freezing of funds and economic resources – Entrance Restrictions and transit through the territory of the Union – the applicant’s name on Hold the list of persons concerned – Rights of the defense – Obligation to state reasons – Error of assessment – Proportionality

ECLI:EU:T:2016:672, [2016] EUECJ T-694/13
Bailii
European

International

Updated: 26 January 2022; Ref: scu.571876

Numbi v Council (External Relations – Judgment): ECFI 12 Feb 2020

Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Extension of the registration of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defense – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Right to property – Proportionality – Presumption of innocence – Exception of illegality

T-168/18, [2020] EUECJ T-168/18
Bailii
European

International

Updated: 26 January 2022; Ref: scu.654807

National Iranian Tanker Company v Council: ECFI 14 Sep 2016

Judgment – Common foreign and security policy – Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Res judicata – Right to an effective remedy – Error of assessment – Rights of the defence – Right to property – Proportionality

T-207/15, [2016] EUECJ T-207/15
Bailii
European

Banking, International

Updated: 23 January 2022; Ref: scu.569372

Iranian Offshore Engineering and Construction v Council: ECJ 8 Sep 2016

ECJ Judgment – Appeal – Restrictive measures against the Islamic Republic of Iran – List of persons and entities to which the freezing of funds and economic resources – logistics support to the Iranian government – inclusion of the name of the applicant’

C-459/15, [2016] EUECJ C-459/15, ECLI:EU:C:2016:646
Bailii
European

International

Updated: 22 January 2022; Ref: scu.569046

Baccus 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 costs. These steps were taken on the instructions of the head of the organisation, Mr Cavero, who was a senior civil servant, without his Minister of Agriculture knowing of them. Eighteen months after the writ was served, steps were taken to stay proceedings on the ground that the organisation was a department of the Spanish Ministry of Agriculture.
Held: (majority) The defendants were a department of the State of Spain and entitled to claim immunity. There could be no submission to the jurisdiction unless it were made by a person with knowledge of the right to be waived and with the authority of the foreign sovereign. Jenkins LJ: ‘Applying those authorities to the present case it seems to me that the evidence here, and in particular the evidence of the ambassador, makes it reasonably plain that Mr Cavero knew nothing about sovereign immunity, or at all events, had no idea that by entering an appearance the defendants would be giving up any advantage or; in particular, any right to claim immunity which they might otherwise have. Furthermore, Mr Cavero’s superiors knew nothing about the matter at all until after the acts relied on as submissions to the jurisdiction had taken place. It seems to me, therefore, that what was done here was done by Mr Cavero without the knowledge of any of his superiors, in ignorance of his rights and without actual authority inasmuch as I think the evidence shows that the authority of the Minister of Agriculture would in fact have been necessary to enable Mr Cavero to submit to the jurisdiction.’
Parker LJ: ‘Like Jenkins LJ, I confess that at first impression it seemed to me remarkable if the true view was that the State of Spain had not submitted to the jurisdiction. Not only was there an unconditional appearance entered on the instructions of the head of this body, Senor Cavero, himself a senior civil servant, but again on his instructions security for costs was asked for and obtained; and it was not until the writ had been served for some 18 months that any steps were taken to stay the proceedings. I am satisfied, however, as the result of Mr Kerr’s argument and the cases to which he has referred, that there can be no submission in such a case as this unless it is made by a person with knowledge of the right to be waived, with knowledge of the effect of our law of procedure, and with the authority of the foreign sovereign. As Mr Kerr pointed out, proceedings against a foreign sovereign are wholly void.’ and ‘In those circumstances it does seem to me that it requires some solemn act of the foreign sovereign to bring to life something which is otherwise completely dead; and, without referring to the cases, I think that The Jassy and the case before Astbury J., In re Republic of Bolivia Exploration Syndicate Ltd., support that view. So far as this case is concerned, it is true that we have not had the benefit of an affidavit from Senor Cavero, but for my part I cannot impute to him knowledge of the effect of entering an unconditional appearance. Quite apart from that, it seems to me that the evidence is clear that although he is the person, the intermediary, to pass on instructions to English solicitors to deal with a case in England, he is bound to consult the appropriate minister as to whether sovereign immunity should be waived or not. It is true this does open up the rather alarming prospect that a foreign sovereign may allow proceedings to continue for years in this country before taking the point; but for my part I think that that is a theoretical difficulty. I do not think any person, even though he be a foreign sovereign, would be likely to be believed if in such an extreme case he were to come forward and assert that he had had no knowledge whatever of the proceedings. So far, however, as this case is concerned, I am satisfied that the point has been properly taken and that there has been no waiver.’
Singleton LJ dissented. The state had created the organisation as a legal entity to trade with citizens and corporate bodies in other countries and that Mr Carvero was acting in the ordinary course of business left to him. That being so, he had, on behalf of the state, waived the state’s right to claim immunity.

Jenkins LJ, Parker LJ, Singleton LJ (dissenting)
[1958] 1 QB 438, [1956] 3 All ER 715, [1956] 3 WLR 948
England and Wales
Citing:
Cited – The 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 . .
Cited – The 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 . .
Cited – De 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 . .

Cited by:
Cited – 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 . .
Cited – Regina v Central Criminal Court Ex Parte Propend Finance Pty Ltd and Others QBD 17-Mar-1994
A Home Secretary requesting warrants must be specific on the type he required. It was his duty, and not that of the police to state the method of seizure of documents for use in a foreign jurisdiction. A judge making an order should give reasons for . .
Cited – Reyes v Al-Malki and Another SC 18-Oct-2017
The claimant alleged that she had been discrimated against in her work for the appellant, a member of the diplomatic staff at the Saudi Embassy in London. She now appealed against a decision that the respondent had diplomatic immunity.
Held: . .

Lists of cited by and citing cases may be incomplete.

International, Contract

Updated: 22 January 2022; Ref: scu.227915

Owens Bank Ltd v Bracco and Another (No2): HL 17 Jun 1992

The bank had obtained judgment in St Vincent to recover a loan. It now sought to register the judgment here for enforcement. The defendant wanted to argue that the judgment had been obtained by fraud, and to resist registration of the judgment. The bank said that to raise the objection, the defendant had first to bring new evidence.
Held: Section 9(2)(d) ws intended to reflect the common law position. There was no requirement that the evidence be fresh. ‘Fraud unravels everything’; A judgment obtained by fraud was set aside despite the existence of evidence pre-existing the fraud to support the claim.

Lord Bridge of Harwich
Gazette 17-Jun-1992, [1992] 2 WLR 621, [1992] 2 AC 443
Administration of Justice Act 1920 9(2)(d)
England and Wales
Cited by:
Cited – Rubin and Another v Eurofinance Sa and Others SC 24-Oct-2012
The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
Cited – Takhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, International

Updated: 21 January 2022; Ref: scu.84499

Re Paramount Airways Ltd (In Administration): CA 8 Apr 1992

It was said that there had been a transction at an undervalue within section 238. It was given effect by a transfer to a bank in Jersey, from which recovery was no sought. The bank claimed that the section did not have extra-territorial effect.
Held: The argument failed; the section did not purport to have any territorial limitation. There is no strict limitation on recovery proceedings against foreign residents. The provisions of the Insolvency Act 1986 for setting aside transactions at an undervalue had, as a matter of construction, world-wide application but the court had a discretion to refuse to make an order in a case not sufficiently connected with England: ‘In my view the solution to the question of statutory interpretation raised by this appeal does not lie in retreating to a rigid and indefensible line. Trade takes place increasingly on an international basis. So does fraud. Money is transferred quickly and easily. To meet these changing conditions English courts are more prepared than formerly to grant injunctions in suitable cases against non-residents or foreign nationals in respect of overseas activities. As I see it, the considerations set out above and taken as a whole lead irresistibly to the conclusion that, when considering the expression ‘any person’ in the sections, it is impossible to identify any particular limitation which can be said, with any degree of confidence, to represent the presumed intention of Parliament. What can be seen is that Parliament cannot have intended an implied limitation along the lines of Ex parte Blain, 12 Ch.D. 522. The expression therefore must be left to bear its literal, and natural, meaning: any person.’

Sir Donald Nicholls V-C
Gazette 08-Apr-1992, [1993] Ch 223
Insolvency Act 1986 238(2)
England and Wales
Cited by:
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
See Also – In Re Paramount Airways Ltd (In Administration) ChD 14-Sep-1993
Administrators may adopt employment contracts without attracting personal liability. . .
Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Cited – Bilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Insolvency, International

Updated: 19 January 2022; Ref: scu.85851

Ismail, Regina (on The Application of) v Secretary of State for The Home Department: SC 6 Jul 2016

The claimant ha been involved in the management of a company operating a ferry in Egypt. The claimant had been acquitted in Egypt of criminal liability, but then convicted in his absence on appeal, after submissions made on his behalf were discounted because of his absence. After sentence to imprisonment, the Egyptian court requested the SSHD to serve its notice of conviction on him in the UK, which the SSHD acceded to. The claimant sought to challenge that decision saying that the SSHD had a discretion whether or not to serve the notice, and having felt obliged to serve it, had not exercised that discretion properly. The Court was now asked as to the existence and extent of any such discretion under the 2003 Act, and if necessary were the claimant’s article 6 human rights engaged.
Held: The SS’s appeal succeeded. Generally, though not always, the service alone of a judgment would not engage article 8.
The decision of the Secretary of State to serve the judgment on Mr Ismail did not expose him to a risk of violation of his Convention rights. Service of the judgment would have placed Mr Ismail in a dilemma – whether to return to Egypt to appeal the judgment, or suffer the consequences of the judgment becoming final – but having to face that dilemma did not amount to a possible violation of his article 6 rights. Service of the Egyptian judgment did not have a direct consequence of exposing Mr Ismail to ‘proscribed ill treatment’. It reduced his options but did not carry the inevitable outcome of exposure to a violation of his rights. He could avoid that exposure by remaining in the UK.

Lady Hale, Deputy President, Lord Kerr, Lord Sumption, Lord Hughes, Lord Toulson
[2016] UKSC 37, [2016] WLR(D) 363, [2016] 1 WLR 2814, UKSC 2013/0160
Bailii, Bailii Summary, WLRD, SC, SC Summary
Crime (International Co-operation) Act 2003 1, Human Rights Act 1998, European Convention on Human Rights 6
England and Wales
Citing:
At Admn – Ismail v Secretary of State for Home Department Admn 26-Mar-2013
The court was asked as to the extent of the Secretary of State’s discretion and obligation to consider a person’s Article 6 rights when requested personally to serve a judgment of an overseas court pursuant to a request for mutual legal assistance . .
Cited – Omar Othman (Abu Qatada) v The United Kingdom ECHR 17-Jan-2012
The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Al-Skeini and Others v The United Kingdom ECHR 7-Jul-2011
(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the . .
Cited – Drozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .

Lists of cited by and citing cases may be incomplete.

International, Criminal Practice, Human Rights

Updated: 18 January 2022; Ref: scu.566484

Committeri v Club Mediterranee Sa Generali Assurances Iard Sa: QBD 30 Jun 2016

Hearing of liability only in relation to a claim against Club Mediterranee SA (‘Club Med’) and Generali Assurances Iard SA (‘Generali’) which arises out of an accident which occurred when C was climbing an ice wall on the Mer de Glace, Chamonix, France slipped and fell causing injuries to his foot and ankle. The success of this claim depends on whether French law applies under which it is common ground that Mr Committeri will obtain judgment for damages to be assessed, or English law applies under which it is common ground that C’s claim will fail.

Dingemans J
[2016] EWHC 1510 (QB)
Bailii

Personal Injury, International

Updated: 18 January 2022; Ref: scu.566257

Mutondo v Council: ECFI 12 Feb 2020

(External Relations – Judgment) Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Extension of the registration of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defense – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Right to property – Proportionality – Presumption of innocence – Exception of illegality

T-174/18, [2020] EUECJ T-174/18
Bailii
European

International

Updated: 18 January 2022; Ref: scu.654805

Kampete v Council: ECFI 12 Feb 2020

(External Relations – Judgment) Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Extension of the registration of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defense – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Proportionality – Article 76 (d) of the Rules of Procedure – Objection of illegality

T-164/18, [2020] EUECJ T-164/18
Bailii
European

International

Updated: 18 January 2022; Ref: scu.654789

Kanyama v Council: ECFI 12 Feb 2020

(External Relations – Judgment) Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Extension of the registration of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defense – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Right to property – Right to respect for private and family life – Proportionality – Presumption of innocence – Exception of ‘illegality’

T-167/18, [2020] EUECJ T-167/18
Bailii
European

International

Updated: 18 January 2022; Ref: scu.654791

Amisi Kumba v Council: ECFI 12 Feb 2020

(External Relations – Judgment) Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Extension of the registration of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defense – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Right to property – Proportionality – Presumption of innocence – Exception of illegality

T-163/18, [2020] EUECJ T-163/18
Bailii
European

International

Updated: 18 January 2022; Ref: scu.654751

re A (A Child): CA 23 Jun 2016

These two linked appeals concern A, who is a boy of nearly 4 years old. The appellant is A’s father and the respondent is his mother. The appeals are against (1) a collection order made in relation to A by Mr Justice Macdonald on 9 October 2015 at a hearing without notice to the father and (2) an order made by Mr Justice Mostyn on 16 October 2015 requiring the return of A to Sweden the following day ‘unless . . a court in Sweden makes an order that the child can remain in the . . .father’s care until the conclusion of the case’. The collection order was executed on 13 October 2015 and A was put into the care of the local authority, which is where he was at the time of Mostyn J’s order on 16 October 2015, and at the time of the appeal hearing before us. The return order was stayed pending the appeal.

Munby J P FD, Black LJ, Sir Stephen Richards
[2016] EWCA Civ 572
Bailii
England and Wales

Children, International

Updated: 18 January 2022; Ref: scu.565950

In re D (A Child): SC 22 Jun 2016

F had obtained an order in Romania for the custody of D. F obtained orders initially for the registration and enforcement of that order, but the High Court reversed that saying that neither the child nor his mother had been given adeuate opportunity to take part in the proceedings in Romania. F’s appeal to the Court of appeal having been rejected, he now sought to appeal to the Supreme Court who heard as a preliminary issue M’s argument that it did not have jurisdition to hear such an appeal.
Held: The Court did not have jurisdiction to hear te Appeal. Its general jurisdiction under section 40 of the 2005 Act was subject to any other provision. In this case Regulation 2201/2003 provided that there could be only one appeal at law, and that appeal had been to the Court of Appeal. The leave to appeal was struck out.
The position under BIIR is clear. There is a largely formal first stage when a judgment is declared enforceable; there is to be a first ‘appeal’ when the enforceability decision can be contested; and the decision on that appeal can only be contested by the notified proceedings. The UK’s notification expressly limits the ‘proceedings’ to ‘a single further appeal on a point of law’ which must be made, in England and Wales, to the Court of Appeal.

Lord Neuberger, President, Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Hughes
[2016] UKSC 34, [2016] 3 WLR 145, [2016] Fam Law 967, [2016] 3 FCR 1, [2016] 2 FLR 379, [2016] AC 1117, [2016] WLR(D) 340, [2016] 4 All ER 95, UKSC 2016/0048
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video Summary
Council Regulation (EC) No 2201/2003, Council Regulation (EC) No 2201/2003, Constitutional Reform Act 2005 30 40, Brussels II Regulation
England and Wales
Citing:
At first instance – MD v AA and Another FD 31-Jul-2014
M appealed against English orders recognising and registering a decision of the Bucharest Court of Appeal ordered that the custody of D who had lived with his mother in England since the age of eight weeks, should be transferred to his father in . .
Appeal from – D (A Child) (International Recognition) CA 27-Jan-2016
M and F disputed the return of their child D to Romania. F had obtained there an order for custody, and now appealed from refusal of the court here to recognise that order and enforce it. The judge had found that the proceedings in Romania had . .
Cited – Re S (A Child) (Foreign Contact Order) CA 16-Jun-2009
The registration of an order under BIIR is ‘essentially administrative, although it requires a judicial act’ . .

Lists of cited by and citing cases may be incomplete.

Children, International, Constitutional

Updated: 18 January 2022; Ref: scu.565829

HX v Council: ECFI 2 Jun 2016

(Judgment (Extracts)) ACTION brought on the basis of Article 263 TFEU seeking the annulment of Council Implementing Decision 2014/488/CFSP of 22 July 2014 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2014 L 217, p. 49), of Council Implementing Regulation (EU) No 793/2014 of 22 July 2014 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2014 L 217, p. 10), and of Council Decision (CFSP) 2015/837 of 28 May 2015 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2015 L 132, p. 82), in so far as the applicant’s name was included on the lists of persons and entities covered by those restrictive measure

T-723/14, [2016] EUECJ T-723/14
Bailii
European

International

Updated: 17 January 2022; Ref: scu.564967

Shadary v Council: ECFI 12 Feb 2020

(External Relations – Judgment) Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Extension of the registration of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defense – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Right to property – Proportionality – Presumption of innocence – Exception of illegality

T-173/18, [2020] EUECJ T-173/18
Bailii
European

International

Updated: 17 January 2022; Ref: scu.654813

Mende Omalanga v Council: ECFI 12 Feb 2020

(External Relations – Judgment) Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Extension of the registration of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defense – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Right to property – Right to respect for private and family life – Proportionality – Presumption of innocence – Exception of ‘illegality – Adaptation of the conclusions’

T-176/18, [2020] EUECJ T-176/18
Bailii
European

International

Updated: 17 January 2022; Ref: scu.654804

Ruhorimbere v Council: ECFI 12 Feb 2020

(External Relations – Judgment) Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Extension of the registration of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defense – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Right to property – Right to respect for private and family life – Proportionality – Presumption of innocence – Exception of ‘illegality’

T-175/18, [2020] EUECJ T-175/18
Bailii
European

International

Updated: 17 January 2022; Ref: scu.654818

Kazembe Musonda v Council: ECFI 12 Feb 2020

(External Relations – Judgment) Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Extension of the registration of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defense – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Proportionality – Article 76 (d) of the Rules of Procedure – Objection of illegality

T-177/18, [2020] EUECJ T-177/18
Bailii
European

International

Updated: 17 January 2022; Ref: scu.654792

Kibelisa Ngambasai v Council: ECFI 12 Feb 2020

(External Relations – Judgment) Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Extension of the registration of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defense – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Proportionality – Article 76 (d) of the Rules of Procedure – Objection of illegality

T-169/18, [2020] EUECJ T-169/18
Bailii
European

International

Updated: 17 January 2022; Ref: scu.654793

Kande Mupompa v Council: ECFI 12 Feb 2020

(External Relations – Judgment) Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Extension of the registration of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defense – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Right to property – Right to respect for private and family life – Proportionality – Presumption of innocence – Exception of ‘illegality – Adaptation of the conclusions’

T-170/18, [2020] EUECJ T-170/18
Bailii
European

International

Updated: 17 January 2022; Ref: scu.654790

Central Bank of Iran v Council: ECJ 7 Apr 2016

ECJ (Judgment) Appeal – Restrictive measures taken against the Islamic Republic of Iran – List of persons and entities subject to the freezing of funds and economic resources – Criterion relating to the provision of material, logistical or financial support to the Government of Iran – Financial services of a central bank

C-266/15, [2016] EUECJ C-266/15
Bailii
European

International

Updated: 13 January 2022; Ref: scu.561976

Akhras v Council: ECJ 7 Apr 2016

ECJ (Judgment) Appeal – Common foreign and security policy (CFSP) – Restrictive measures against the Syrian Arab Republic – Measures directed against persons and entities benefiting from or supporting the regime – Proof that inclusion on the lists is well founded – Set of indicia – Distortion of the sense of the evidence

C-193/15, [2016] EUECJ C-193/15
Bailii
European

International

Updated: 13 January 2022; Ref: scu.561971

National Iranian Oil Company v Council (Judgment): ECJ 1 Mar 2016

ECJ Appeal – Restrictive measures against the Islamic Republic of Iran – List of persons and entities subject to the freezing of funds and economic resources – Implementing Regulation (EU) No 945/2012 – Legal basis – Criterion relating to the material, logistical or financial support for the Government of Iran

ECLI:EU:C:2016:128, [2016] EUECJ C-440/14
Bailii
European

International, Banking

Updated: 10 January 2022; Ref: scu.560501

Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb: SC 9 Oct 2020

After a fire in a power plant in Russia, Chubb Russia, the insurers brought proceedings in Russia against Enka, a subcontractor, alleging liability for the fire. Enka began proceedings in England contending that the dispute was subject to an arbitration agreement in the contract under which it had performed the works, and seeking an order that Chubb Russia discontinue the Russian Proceedings (‘an anti-suit injunction’).
Enka’s claim was dismissed by the High Court at first instance at an expedited trial. The Court of Appeal subsequently allowed Enka’s appeal, granting an anti-suit injunction and restraining Chubb Russia from appealing the decision of the Russian court. Chubb Russia seeks to appeal.

Bailii Press Summary, Bailii, Bailii Summary
England and Wales
Citing:
At ComC – Enka Insaat Ve Sanayi As v Ooo ‘Insurance Company Chubb’ and Others ComC 20-Dec-2019
Anti-suit injunction to restrain foreign proceedings said to be in breach of agreement to refer disputes to ICC arbitration with London seat.
Held: Refused . .
Appeal from – Enka Insaat Ve Sanayi As v OOO ‘Insurance Company Chubb’ and Others CA 29-Apr-2020
Appeal against a decision at trial not to grant an anti-suit injunction against a party alleged to be in breach of a London arbitration clause by bringing proceedings in Russia. It concerns the significance to be attached to the choice of London as . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice, International

Updated: 10 January 2022; Ref: scu.654664

Enka Insaat Ve Sanayi As v OOO ‘Insurance Company Chubb’ and Others: CA 29 Apr 2020

Appeal against a decision at trial not to grant an anti-suit injunction against a party alleged to be in breach of a London arbitration clause by bringing proceedings in Russia. It concerns the significance to be attached to the choice of London as the seat of the arbitration in exercising such jurisdiction and in determining the proper law of the arbitration agreement.

Lord Justice Popplewell
[2020] EWCA Civ 574, [2020] WLR(D) 256
Bailii, WLRD
England and Wales
Citing:
Appeal from – Enka Insaat Ve Sanayi As v Ooo ‘Insurance Company Chubb’ and Others ComC 20-Dec-2019
Anti-suit injunction to restrain foreign proceedings said to be in breach of agreement to refer disputes to ICC arbitration with London seat.
Held: Refused . .

Cited by:
Appeal from – Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb SC 9-Oct-2020
After a fire in a power plant in Russia, Chubb Russia, the insurers brought proceedings in Russia against Enka, a subcontractor, alleging liability for the fire. Enka began proceedings in England contending that the dispute was subject to an . .

Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 10 January 2022; Ref: scu.650491

Enka Insaat Ve Sanayi As v Ooo ‘Insurance Company Chubb’ and Others: ComC 20 Dec 2019

Anti-suit injunction to restrain foreign proceedings said to be in breach of agreement to refer disputes to ICC arbitration with London seat.
Held: Refused

Andrew Baker J
[2019] EWHC 3568 (Comm), [2020] WLR(D) 21, [2020] Bus LR 463, [2020] 1 Lloyd’s Rep 71
Bailii, WLRD
England and Wales
Cited by:
Appeal from – Enka Insaat Ve Sanayi As v OOO ‘Insurance Company Chubb’ and Others CA 29-Apr-2020
Appeal against a decision at trial not to grant an anti-suit injunction against a party alleged to be in breach of a London arbitration clause by bringing proceedings in Russia. It concerns the significance to be attached to the choice of London as . .
At ComC – Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb SC 9-Oct-2020
After a fire in a power plant in Russia, Chubb Russia, the insurers brought proceedings in Russia against Enka, a subcontractor, alleging liability for the fire. Enka began proceedings in England contending that the dispute was subject to an . .

Lists of cited by and citing cases may be incomplete.

International, Arbitration

Updated: 10 January 2022; Ref: scu.646098

Council v Bank Mellat: ECJ 18 Feb 2016

ECJ Judgment – Appeal – Common foreign and security policy – Combating nuclear proliferation – Restrictive measures taken against the Islamic Republic of Iran – Freezing of funds of an Iranian bank – Obligation to state reasons – Procedure for the adoption of the act – Manifest error of assessment)

C-176/13, [2016] EUECJ C-176/13
Bailii
European

International, Banking

Updated: 10 January 2022; Ref: scu.560209

Ogelegbanwei and 52 Others v President of The Federal Republic of Republic of Nigeria and Others: QBD 18 Jan 2016

Application by the claimants for registration of a judgment given in their favour on the 5th December 2013 by the Asaba Judicial Division of the Federal High Court of Nigeria.

Holdroyde J
[2016] EWHC 8 (QB)
Bailii
England and Wales

International, Litigation Practice

Updated: 09 January 2022; Ref: scu.558929

Ecobank Transnational Incorporated v Tanoh: CA 17 Dec 2015

The court was asked whether Knowles J was wrong to refuse to grant Ecobank Transnational Incorporated (‘Ecobank’), an injunction restraining Mr Thierry Tanoh (‘Mr Tanoh’) from enforcing two judgments which he had obtained in Togo and Cote d’Ivoire.

Sir Terence Etherton Ch, Christopher Clarke, Patten LJJ
[2015] EWCA Civ 1309, [2015] WLR(D) 534
Bailii, WLRD
England and Wales

International, Litigation Practice

Updated: 08 January 2022; Ref: scu.557081

Sarafraz v Council: ECFI 4 Dec 2015

ECJ (Judgment) Foreign and Security Policy – Restrictive measures against certain persons and entities in view of the situation in Iran – Gels fund – Entry Restrictions and transit through the territory of the Union – Base Legal – Obligation to state reasons – Right to be heard – Error of assessment – Ne bis in idem – Freedom of expression – Freedom of the Media – Professional freedom – Free movement – Right to property

T-273/13, [2015] EUECJ T-273/13
Bailii
European

International

Updated: 08 January 2022; Ref: scu.556762

Ministry of Defence v Iraqi Civilians: CA 9 Dec 2015

‘This appeal raises a short but elusive point concerning the manner in which the English Court applies a foreign law relating to limitation when required to do so by section 1 of the Foreign Limitation Periods Act 1984’

Lord Dyson MR, Tomplinson, Vos LJJ
[2015] EWCA Civ 1241, [2015] WLR(D) 515, [2016] 1 WLR 1290, [2016] 2 All ER 300
Bailii, WLRD
Foreign Limitation Periods Act 1984
England and Wales
Citing:
Appeal from QBD – Iraqi Civilian Litigation v Ministry of Defence QBD 26-Jan-2015
The court considered limitation issues as an interim issue in this claim and particularly as it was affected by Iraqi law.
Held: The effective period of CPA 17 ended on 31 December 2008. No claim had been brought relating to any alleged act or . .

Cited by:
Appeal from CA – Ministry of Defence v Iraqi Civilians SC 12-May-2016
Iraqi citizens claimed to have suffered unlawful detention and/or physical maltreatment from British armed forces in Iraq between 2003 and 2009. The claims were brought in tort in England against the Ministry of Defence, but the torts were governed . .

Lists of cited by and citing cases may be incomplete.

International, Limitation

Updated: 08 January 2022; Ref: scu.556790

Emadi v Council: ECFI 4 Dec 2015

(Judgment) Foreign and Security Policy – Restrictive measures against certain persons and entities in view of the situation in Iran – Gels fund – Entry Restrictions and transit through the territory of the Union – Base Legal – Obligation to state reasons – Right to be heard – Error of assessment – Ne bis in idem – Freedom of expression – Freedom of the Media – Professional freedom – Free movement – Right to property

T-274/13, [2015] EUECJ T-274/13
Bailii
European

International

Updated: 08 January 2022; Ref: scu.556758

Brookfield Aviation International Ltd v The Guildford Crown Court and Others: Admn 4 Dec 2015

Renewed application for judicial review whereby the claimant seeks permission to challenge the issue and execution of a search warrant for its premises. The warrant was requested by a German prosecutor under mutual legal assistance pursuant to section 16 of the 2003 Act.

Beatson LJ, Cranston J
[2015] EWHC 3465 (Admin)
Bailii
Crime (International Co-operation) Act 2003 16
England and Wales

Criminal Practice, International

Updated: 07 January 2022; Ref: scu.556465

In re J (A Child): SC 25 Nov 2015

The court considered for the first time the scope of the jurisdiction conferred by article 11 of the 1996 Convention ‘in all cases of urgency’ upon the Contracting State where a child is present but not habitually resident. F had obtained an order under the inherent jurisdiction of the court for the return of J to Morocco.
Held: The appeal succeeded, and the court set aside the decision of the Court of Appeal to dismiss F’s application. ‘measures of protection’ in Article 3 goes far wider than the public law measures of child care and protection to which an English lawyer might otherwise think that they referred (although those are also included). The exclusions from the Convention in article 4 include ‘(a) the establishment or contesting of a parent-child relationship; (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; (c) the names and forenames of the child;’. The focus of the Convention is on the care and upbringing of the child (or the protection of his property).
Lady Hale said: ‘While I would not, therefore, go so far as to say that such a case is invariably one of ‘urgency’, I find it difficult to envisage a case in which the court should not consider it to be so, and then go on to consider whether it is appropriate to exercise the article 11 jurisdiction. It would obviously not be appropriate where the home country was already seized of the case and in a position to make effective orders to protect the child. However, as Lord Wilson pointed out in the course of argument, the courts of the country where the child is are often better placed to make orders about the child’s return. Those courts can take steps to locate the child, as proved necessary in this case, and are likely to be better placed to discover the child’s current circumstances. Those courts can exert their coercive powers directly upon the parent who is here and indeed if necessary upon the child. The machinery of going back to the home country to get orders and then enforcing them in the presence country may be cumbersome and slow. Getting information from the home country may also be difficult. The child’s interests may indeed be compromised if the country where the child is present is not able to take effective action in support of the child’s return to the country of his or her habitual residence.’

Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes, Lord Toulson
[2015] UKSC 70, [2015] 3 WLR 1827, [2016] AC 1291, [2015] WLR(D) 486, UKSC 2015/0176
Bailii, Bailii Summary, WLRD, SC, SC Summary
The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, concluded on 19 October 1996 11, Regulation No 2201/2003 20(1)
England and Wales
Citing:
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Appeal ffrom – Re J (A Child) (1996 Hague Convention) (Morocco) CA 1-Apr-2015
M appealed against an order for the return of her child to Morocco. Both parents had dual Moroccan and UK citizenship. The child was born in the UK, but later lived with them in Morocco. The parents split, with M awarded custody in Morocco, but . .
Cited – Purrucker v Valles Perez (No 1) ECJ 15-Jul-2010
ECJ (Judgment) Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation (EC) No 2201/2003 – . .
Cited – Deticek v Sgueglia ECJ 23-Dec-2009
ECJ (Area Of Freedom, Security and Justice) Judicial cooperation in civil matters Matrimonial matters and matters of parental responsibility Regulation (EC) No 2201/2003 Provisional measures concerning custody . .
Cited – B v B FD 21-May-2014
Mostyn J used the 1996 Convention for just this purpose, when ordering the return of a child to Lithuania pursuant to the 1980 Convention, so as to ensure that there was no grave risk of harm within the meaning of article 13(1)(b) of that . .

Lists of cited by and citing cases may be incomplete.

Children, International, European

Updated: 06 January 2022; Ref: scu.554899

Aksionairnoye Obschestvo A M Luther v James Sagor and Co: CA 1921

A claim was made as to property seized by a decree of Russian revolutionaries later recognised as the government.
Held: A court is required to recognise a foreign state’s dealings with private proprietary rights within its jurisdiction. An English court will recognise the compulsory acquisition law of a foreign state and will recognise the change of title to property which has come under the control of the foreign state and will recognise the consequences of that change of title.
Scrutton LJ said: ‘The courts in questions whether a particular person or institution is a sovereign must be guided only by the statement of the sovereign on whose behalf they exercise jurisdiction.’

Scrutton LJ
[1921] 3 KB 532
England and Wales
Citing:
Cited – Mighell v Sultan of Johore CA 1-Dec-1893
In 1885 the Sultan of Johore came to England, and according to the plaintiff, Miss Mighell, took the name Albert Baker and promised to marry her.
Held: The Sultan was entitled to immunity even though up to the time of suit ‘he has perfectly . .
Cited – Oetjen v Central Leather Co 1918
(US Supreme Court) Animal hides were seized and sold to satisfy a monetary assessment to support the revolution, and there was an issue of title between an assignee from the original owner and a person deriving his claim to title from the purchaser . .

Cited by:
Cited – Regina v Minister of Agriculture Fisheries and Food, ex parte S P Anastasiou (Pissouri) Ltd and Others (2) HL 17-Dec-2001
The claimants asserted that citrus fruit exported from Turkish Cyprus via Turkey, and certified in Turkey, should not be imported. Imports required phytosanitary certificates conforming to European standards. They asserted that the regulations . .
Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Cited – North Cyprus Tourism Centre Ltd and Another, Regina (on the Application Of) v Transport for London Admn 28-Jul-2005
The defendants had prevented the claimants from advertising their services in North Cyprus on their buses, and justified this saying that the Crown did not recognise the Turkish Republic of North Cyprus since it was the result of an unlawful . .
Cited – Iran v The Barakat Galleries Ltd QBD 29-Mar-2007
The claimant government sought the return to it of historical artefacts in the possession of the defendants. The defendant said the claimant could not establish title and that if it could the title under which the claim was made was punitive and not . .
Cited – Korea National Insurance Company v Allianz Global Corporate and Specialty Ag ComC 18-Nov-2008
The claimant sought to enforce a judgment for payment of a sum under a policy of insurance. The defendant sought to refuse saying that the policy had been instigated by a fraud perpetrated by the state of North Korea, and or that the judicial system . .
Cited – Lucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
Cited – Belhaj 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 . .

Lists of cited by and citing cases may be incomplete.

Commercial, International

Updated: 05 January 2022; Ref: scu.183811

Mighell v Sultan of Johore: CA 1 Dec 1893

In 1885 the Sultan of Johore came to England, and according to the plaintiff, Miss Mighell, took the name Albert Baker and promised to marry her.
Held: The Sultan was entitled to immunity even though up to the time of suit ‘he has perfectly concealed the fact that he is a sovereign, and has acted as a private individual.’ ‘When once there is the authoritative certificate of the Queen through her minister of state as to the status of another sovereign, that in the courts of this country is decisive’.
To an argument that he had waived this immunity, the court held that the only way that a sovereign could waive immunity was by submitting to jurisdiction in the face of the court as, for example, by appearance to a writ. If the sovereign ignored the issue of the writ, the court was under a duty of its own motion to recognise his immunity from suit.

Lord Esher MR, Lopes LJ, Kay LJ
[1894] 1 QB 149, [1893] UKLawRpKQB 198
Commonlii
England and Wales
Cited by:
Cited – Aksionairnoye Obschestvo A M Luther v James Sagor and Co CA 1921
A claim was made as to property seized by a decree of Russian revolutionaries later recognised as the government.
Held: A court is required to recognise a foreign state’s dealings with private proprietary rights within its jurisdiction. An . .
Cited – Alamieyeseigha, Regina (on the Application Of) v Crown Prosecution Service Admn 25-Nov-2005
The defendant argued that as Governor and Chief Excecutive of Bayelsa State in Nigeria he had sovereign immunity. The Foreign Office had issued a certificate that the defendant was not a Head of States under the 1978 Act. The A-G of Bayelsa had . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Cited – NML 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 . .

Lists of cited by and citing cases may be incomplete.

International

Updated: 05 January 2022; Ref: scu.219443

FC Dynamo-Minsk v Council: ECFI 6 Oct 2015

Judgment Common foreign and security policy – Restrictive measures adopted against Belarus – Freezing of funds – Action for annulment – Period allowed for modifying the form of order sought – Partial inadmissibility – Entity owned or controlled by a person or entity subject to the restrictive measures – Obligation to state reasons – Error of assessment

ECLI:EU:T:2015:747, [2015] EUECJ T-275/12
Bailii
England and Wales

Banking, International

Updated: 04 January 2022; Ref: scu.553096

Triquet v Bath: 1764

An English secretary to a foreign minister is privileged from arrests, though formerly a trader, and now under very suspicious circumstances. For a servant of a minister of a foreign country to claim protection against prosecution, it is not necessary for him to show every incident of such service, it is enough for him to show actual bona fide service. Where such service is established on affidavit, ‘we must not, upon bare suspicion only, suppose it to have been merely colourable and collusive.’

Lord Mansfield
(1764) 3 Burr 1478, [1746] EngR 666, (1746-1779) 1 Black W 471, (1764) 96 ER 273
Commonlii
England and Wales
Cited by:
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .

Lists of cited by and citing cases may be incomplete.

Constitutional, International

Updated: 04 January 2022; Ref: scu.239958

Re CB (A Child): CA 6 Aug 2015

P was the child of now separated women. P was born in the UK but taken by one parent to Pakistan. The other parent now appealed from refusal of her request for the court to exercise its inherent jurisdiction or wardship to support her application for contact for contact with P. The court considered whether, having left with her mother who had a settled intention of remaining in Pakistan, CB would lose he habitual residence here upon so leaving.
Held: The appeal failed. Hogg J had been entitled to hold that on leaving the UK, B had lost her English habitual residence. Although the attenuation, or even the ultimate loss, of her relationship with the appellant would be a real detriment to B, the circumstances were not so exceptionally grave as to justify exercise of the inherent jurisdiction by reference to her nationality.
Although there was no direct evidence to substantiate the appellant’s asserted inability to present her case to the courts of Pakistan, the court surveyed general material about the attitude of society there to same-sex relationships. The issue of sexual relations between women was unexplored territory in law, there was in Pakistan pervasive societal and state discrimination, social stigma, harassment and violence against both gay men and lesbian women, together with a lack of effective protection by the state against the activities of non-state actors. The Court proceeded on the unchallenged basis that courts in Pakistan would be unlikely to recognise that the appellant had any relationship with B which would entitle her to relief and that therefore she would have no realistic opportunity to advance her claim there.

Sir James Munby P, Black, Vos LJJ
[2015] EWCA Civ 888, [2016] 2 WLR 487, [2015] WLR(D) 364, [2015] Fam Law 1339
Bailii, WLRD
Adoption and Children Act 2002
England and Wales
Citing:
Appeal from – London Borough of Merton v LB FD 19-Dec-2014
The court considered applications in the case of a proposed adoption of a child LB. The mother, Latvian, and the Latvian authorities opposed the application, saying that the child’s future should be settled in Latvia. CB had been taken into care . .
See Also – LB v London Borough of Merton and Another CA 1-May-2013
. .

Cited by:
Cited – Re B (A Child) SC 3-Feb-2016
Habitual Residence of Child not lost
(Orse In re B (A Child) (Reunite International Child Abduction Centre intervening)) The Court considered the notion of habitual residence. The British girl with same sex parents had been taken to Pakistan, and her mother here sought her return. The . .
Cited – Re B (A Child) SC 3-Feb-2016
Habitual Residence of Child not lost
(Orse In re B (A Child) (Reunite International Child Abduction Centre intervening)) The Court considered the notion of habitual residence. The British girl with same sex parents had been taken to Pakistan, and her mother here sought her return. The . .
Cited – In Re N (Children) SC 13-Apr-2016
The Court considered whether the future of two little girls, aged four and two years, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and lived all their lives here. But their . .

Lists of cited by and citing cases may be incomplete.

Adoption, International

Updated: 03 January 2022; Ref: scu.551020

KK (A Child), Re Judicial Review: FDNI 10 Jun 2013

Maternal Grandparents sought a declartion requiring the return to Latvia of their grandson, who had been brought forcibly to NI by his mother, he having lived with them in Latvia for several years.

Maguire J
Bailii
Child Abduction and Custody Acy 1985, Convention on the Civil Aspects of International Child Abduction
England and Wales
Citing:
Cited – In Re B (A Minor)(Child Abduction: Consent) CA 9-May-1994
A six year old boy, had lived in Western Australia all his life. Shortly prior to his removal from Australia, the mother had left Australia to live in Wales. The maternal grandmother asked the father for permission to take the child to Wales to . .

Cited by:
See also – In re K (A Child) SC 15-Mar-2014
Rights of Custody under Convention
The Court was asked as to what were ‘rights of custody’ within the Convention. M had at first left her child with the maternal grandmother in an informal but long term arrangement in Latvia when M moved to Northern Ireland. Later M removed the child . .

Lists of cited by and citing cases may be incomplete.

Children, Northern Ireland, International

Updated: 03 January 2022; Ref: scu.550933

The Serious Fraud Office v Saleh: QBD 21 Jul 2015

Application by the Respondent to discharge a property freezing order.
Held: Where a Canadian court had ordered the restoration of shares to their owner in consequence of the abandonment of forfeiture proceedings by the Canadian prosecuting authority, the appropriate prosecuting authority here was not thereby prevented from commencing proceedings against the proceeds of sale of those same shares where they were located within the United Kingdom.

Andrews DBE J
[2015] EWHC 2119 (QB), [2015] WLR(D) 368, [2015] Lloyd’s Rep FC 62
Bailii, WLRD
Proceeds of Crime Act 2002
England and Wales

Criminal Sentencing, International

Updated: 02 January 2022; Ref: scu.550578

R v R: CA 24 Jul 2015

The court was asked: ‘Does the order of Moor J against the appellant husband to pay in russia interim maintenance to his wife unlawfully cirumvent prohibitions in Ukrainian sanctions legislation to which the husband is subject?’

Arden, Ryder, Briggs LJJ
[2015] EWCA Civ 796
Bailii
Council Regulation (EU) No 269/2014, Ukraine (European Union Financial Sanctions) (No 2) Regulations 2014
England and Wales

Family, International, Crime

Updated: 02 January 2022; Ref: scu.550590

Re K (1980 Hague Convention) (Lithuania): CA 14 Jul 2015

Appeal by a mother against the order that E, her 11 year old daughter, be returned to Lithuania forthwith pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980

[2015] EWCA Civ 720
Bailii
Hague Convention on the Civil Aspects of International Child Abduction 1980 12
England and Wales

Children, International

Updated: 02 January 2022; Ref: scu.550305

S v Mthembu: 10 Apr 2008

Saflii (South Africa: Supreme Court of Appeal) The evidence of an accomplice extracted through torture, (including real evidence derived from it), is inadmissible, even where the accomplice testifies years after the torture. The link was inextricable.

Cameron, Maya et Cachalia JJA
379/07, [2008] ZASCA 51, [2008] 3 All SA 159 (SCA), [2008] 4 All SA 517 (SCA), 2008 (2) SACR 407 (SCA)
Saflii
Commonwealth
Cited by:
Cited – Her Majesty’s Advocate v P SC 6-Oct-2011
(Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
Held: The admission of the . .

Lists of cited by and citing cases may be incomplete.

International, Criminal Practice

Updated: 02 January 2022; Ref: scu.445168

London Borough of Merton v LB: FD 19 Dec 2014

The court considered applications in the case of a proposed adoption of a child LB. The mother, Latvian, and the Latvian authorities opposed the application, saying that the child’s future should be settled in Latvia. CB had been taken into care under section 20 after findings of lack of care.

Moylan J
[2014] EWHC 4532 (Fam)
Bailii
Children Act 1989 20
England and Wales
Citing:
See Also – LB v London Borough of Merton and Another CA 1-May-2013
. .

Cited by:
Appeal from – Re CB (A Child) CA 6-Aug-2015
P was the child of now separated women. P was born in the UK but taken by one parent to Pakistan. The other parent now appealed from refusal of her request for the court to exercise its inherent jurisdiction or wardship to support her application . .

Lists of cited by and citing cases may be incomplete.

Adoption, International

Updated: 01 January 2022; Ref: scu.549759

Iranian Offshore Engineering and Construction v Council: ECFI 25 Jun 2015

ECJ Judgment (Extracts) – Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Error of assessment – Obligation to state reasons – Right to effective judicial protection – Misuse power – Right to property – Equality of treatment

T-95/14, [2015] EUECJ T-95/14, ECLI: EU: T: 2015 433
Bailii
European

International

Updated: 01 January 2022; Ref: scu.549581

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 instance – Serious 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 . .
Cited – Regina 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 . .
Cited – Government 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 . .
Cited – Societe 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 . .
Cited – Societe 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 . .
Cited – Pattni 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 from – Perry 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 from – Serious 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. . .
Cited – King 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 From – Serious 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:
Cited – Waya, 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

Forsyth, Regina v, Regina v Mabey: SC 23 Feb 2011

The defendants were to face trial on charges of making funds available to Iraq in breach of the 2000 Order. They said that the 2000 Order was ultra vires and ineffective, not having been made ‘forthwith’ after the UN resolution it was based upon, but some ten years later.
Held: The appeal failed. The comparison with the case of Ahmed was inappropriate. The mischief complained of was quite different, and it was not necessary to go behind the terms of the 1946 Act: ‘Security Council Resolutions are not simply one-off measures requiring immediate implementation by member states and then receding into history, and that situations can develop in the course of their subsequent enforcement which call for further measures to be taken, sometimes with considerable urgency, to meet emerging problems. It would be not merely inappropriate as a matter of construction but regrettable as a matter of fact were this court now to stultify the power conferred under the 1946 Act by confining its exercise within an artificially restricted time-frame.’

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Brown
UKSC 2010/0227, UKSC 2010/0226, [2011] UKSC 9, [2011] Lloyd’s Rep FC 232, [2011] 2 All ER 165, [2011] 2 WLR 277, [2011] 2 AC 69
Bailii Summary, SC Summary, SC, Bailii
Iraq (United Nations Sanctions) Order 2000 3(a) 11(4), United Nations Act 1946 1
England and Wales
Citing:
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .

Lists of cited by and citing cases may be incomplete.

Crime, International

Updated: 31 December 2021; Ref: scu.429723