Edate Advertising (Area Of Freedom, Security And Justice): ECJ 29 Mar 2011

ECJ (Opinion) Area of Freedom, Security And Justice – Jurisdiction in Civil and Commercial Matters – Regulation (EC) No 44/2001 – Jurisdiction ‘in tort or quasi-delict’ – Violation of personal rights that may have been committed by means of publishing information on Internet – Article 5, Section 3 – Definition of ‘place where the harmful event occurred or may occur’ – Applicability Shevill jurisprudence of the Court of Justice – Directive 2000/31/EC – Article 3, paragraphs 1 and 2 – Determination of the existence of a conflict rule on rights of personality.

Citations:

C-509/09, [2011] EUECJ C-509/09

Links:

Bailii

Statutes:

Regulation (EC) No 44/2001, Directive 2000/31/EC 3

Jurisdiction:

European

Information, Jurisdiction

Updated: 23 May 2022; Ref: scu.431349

F Berghoefer GmbH and Co KG v ASA SA: ECJ 11 Jul 1985

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

Citations:

C-221/84, R-221/84, [1985] EUECJ R-221/84, [1985] ECR 2699

Links:

Bailii

Cited by:

CitedBols Distilleries VB (T/A As Bols Royal Distilleries) and Another v Superior Yacht Services Ltd PC 11-Oct-2006
(Gilbraltar) The parties disputed the management contract for a racing yacht, and also the juridiction of the Supreme Court of Gibraltar to hear the case. Bols said that under regulation 2(1) Gibraltar had no jurisdiction.
Held: The English . .
Lists of cited by and citing cases may be incomplete.

European, Jurisdiction

Updated: 22 May 2022; Ref: scu.133963

Partenreederei Ms Tilly Russ and Ernest Russ v NV Haven- and Vervoerbedrijf Nova and NV Goeminne Hout: ECJ 19 Jun 1984

Europa Convention on jurisdiction and the enforcement of judgments – jurisdiction agreement – jurisdiction clause in a bill of lading – validity – conditions (convention of 27 September 1968, art. 17)
a jurisdiction clause contained in the printed conditions on a bill of lading satisfies the conditions laid down by article 17 of the convention : if the agreement of both parties to the conditions containing that clause has been expressed in writing; or if the jurisdiction clause has been the subject-matter of a prior oral agreement between the parties expressly relating to that clause, in which case the bill of lading, signed by the carrier, must be regarded as confirmation in writing of the oral agreement; or if the bill of lading comes within the framework of a continuing business relationship between the parties, in so far as it is thereby established that the relationship is governed by general conditions containing the jurisdiction clause. As regards the relationship between the carrier and a third party holding the bill of lading, the conditions laid down by article 17 of the convention are satisfied if the jurisdiction clause has been adjudged valid as between the carrier and the shipper and if, by virtue of the relevant national law, the third party, upon acquiring the bill of lading, succeeded to the shipper ‘ s rights and obligations.

Citations:

C-71/83, R-71/83, [1984] EUECJ R-71/83, [1984] ECR 2417

Links:

Bailii

Cited by:

CitedBols Distilleries VB (T/A As Bols Royal Distilleries) and Another v Superior Yacht Services Ltd PC 11-Oct-2006
(Gilbraltar) The parties disputed the management contract for a racing yacht, and also the juridiction of the Supreme Court of Gibraltar to hear the case. Bols said that under regulation 2(1) Gibraltar had no jurisdiction.
Held: The English . .
Lists of cited by and citing cases may be incomplete.

European, Transport, Jurisdiction

Updated: 22 May 2022; Ref: scu.133626

Siegfried Zelger v Sebastiano Salinitri: ECJ 17 Jan 1980

The provisions of article 5(1) of the Convention, to the effect that in matters relating to a contract a defendant domiciled in a contracting state may be sued in the courts for the place of performance of the obligation in question, introduce a criterion for jurisdiction, the selection of which is at the option of the plaintiff and which is justified by the existence of a direct link between the dispute and the court called upon to take cognizance of it. By contrast, article 17 of the convention, which provides for the exclusive jurisdiction of the court designated by the parties in accordance with the prescribed form, puts aside both the rule of general jurisdiction – provided for in article 2 – and the rules of special jurisdiction – provided for in article 5 – and dispenses with any objective connexion between the legal relationship in dispute and the court designated. It thus appears that the jurisdiction of the court for the place of performance and that of the selected court are two distinct concepts and only agreements selecting a court are subject to the requirements of form prescribed by article 17 of the convention.
if the place of performance of a contractual obligation has been specified by the parties in a clause which is valid according to the national law applicable to the contract, the court for that place has jurisdiction to take cognizance of disputes relating to that obligation under article 5(1) of the convention , irrespective of whether the formal conditions provided for under article 17 have been observed.

Citations:

C-56/79, R-56/79, [1980] EUECJ R-56/79

Links:

Bailii

Statutes:

Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968

Jurisdiction:

European

Cited by:

See AlsoSiegfried Zelger v Sebastiano Salinitri ECJ 7-Jun-1984
Article 21 of the Convention of 28 September 1968 must be interpreted as meaning that the court ‘first seised’ is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be . .
Lists of cited by and citing cases may be incomplete.

European, Jurisdiction

Updated: 21 May 2022; Ref: scu.132852

Carver (Nee Mascarenhas) v Saudi Arabian Airlines: CA 17 Mar 1999

The applicant was recruited in Saudi Arabia in 1986 as a flight attendant under a contract expressed to be subject to Saudi Arabian law. After being trained in Jeddah, and then employed in India for four years, she was transferred to be based in London, from which all her tours of duty as a flight attendant thereafter commenced, and at which they ended. She complained of unfair dismissal and of sex discrimination.
Held: By reference to the relevant test at the time for the jurisdiction of UK tribunals in relation to unfair dismissal, she did not ordinarily work in Great Britain. So far as concerned the sex discrimination claim, the applicant’s appeal was allowed to the extent that the issue was remitted to a differently constituted tribunal to determine where the applicant wholly or mainly did her work at the relevant time. When a tribunal has to decide where an employee ‘ordinarily works’, the tribunal must look to the entire period of the contract, and not to some smaller, artificial, part. A contract begun and substantially worked in Jeddah was not subject to UK law. As to the term ‘ordinarily’: ‘Here the position was quite different. The Tribunal had to consider where at the time of the alleged discrimination the appellant was ‘wholly or mainly’ working [our underlining]. See Haughton v Olau Line (UK) Ltd [1986] ICR 357 in the Court of Appeal. However, the tribunal decided jurisdiction on where the applicant was ordinarily working. That was impermissible. Insofar as the tribunal purported to make a finding of fact as to where the applicant was wholly or mainly working, it seems to me that it did so without any evidential basis. The tribunal appears to have taken the monthly, minimum, flying time, namely 72 hours, required of the applicant and set it against a notional working week of 40 hours. By such a comparison it would seem that the applicant worked most of her time within Great Britain. But neither the 72 hours minimum flying time nor the notional 40-hour week had any relevance to the question which had to be determined. Consequently I would hold the finding to be without any foundation and as such to amount to an error of law. I would be minded therefore, to remit the question of jurisdiction under the Sex Discrimination Act 1975 to the tribunal, differently constituted, with a direction to determine the question of jurisdiction on the basis of where the applicant wholly or mainly did her work at the relevant time.’

Judges:

Mantell LJ, Beldam LJ and Ward LJ

Citations:

Times 24-Mar-1999, Gazette 27-Jun-1999, [1999] EWCA Civ 1002, [1999] ICR 991

Links:

Bailii

Statutes:

Employment Rights Act 1996 196

Jurisdiction:

England and Wales

Citing:

DistinguishedTodd v British Midland Airways CA 2-Jan-1978
The court discussed the test to be applied to an employment to see whether a British court had jurisdiction over it: ‘But in other cases there is more difficulty. I refer particularly to the type of case we have here of the airline pilot. He is . .

Cited by:

CitedSerco Ltd v Lawson and Foreign and Commonwealth Office CA 23-Jan-2004
The applicant had been employed to provide services to RAF in the Ascension Islands. He alleged constructive dismissal. There was an issue as to whether somebody working in the Ascension Islands was protected by the 1996 Act. The restriction on . .
CitedSaggar v Ministry of Defence EAT 25-May-2004
Three Defence employees sought to bring claims of variously race and sex discrimination against the Ministry. In each case their services were provided almost entirely abroad, and the defendant argued that there was no jurisdiction to hear the case, . .
CitedSaggar v Ministry of Defence CA 27-Apr-2005
The claimant sought to bring an action for race discrimination. The defendant argued that the alleged acts of discrimination took place whilst he was on a posting abroad in Cyprus after serving 16 years in England, and that therefore the tribunal . .
CitedCrofts and others v Cathay Pacific Airways Ltd and others CA 19-May-2005
The claimants were airline pilots employed by the respondent company with headquarters in Hong Kong. The court was asked whether an English Tribunal had jurisdiction to hear their complaints of unfair dismissal.
Held: The pilots were employed . .
CitedSerco 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 . .
Lists of cited by and citing cases may be incomplete.

Employment, Jurisdiction, Discrimination

Updated: 20 May 2022; Ref: scu.118485

Von Horn v Cinnamond: ECJ 26 Nov 1997

Where action started in one country before the Convention, and second in another after the Convention came into effect, the second action must be stayed.

Citations:

Times 26-Nov-1997, C-163/95, [1997] EUECJ C-163/95

Links:

Bailii

Statutes:

Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968

Jurisdiction:

European

Jurisdiction

Updated: 20 May 2022; Ref: scu.90192

Stocznia Gdanska SA v Latreefers Inc; In re Latrefeers Inc; Stocznia Gdanska SA v Latvian Shipping Co and others (No 2): CA 15 Mar 2000

Possible claims against a foreign company for misfeasance, or wrongful or fraudulent trading might be sufficient to justify proceedings here to wind up a foreign registered company. A second requirement is that some person within this jurisdiction would be likely to achieve a substantial benefit from such an action, and third was that some person responsible for distribution of the company’s assets was somebody over whom a UK court could exercise a jurisdiction.

Citations:

Times 15-Mar-2000, [2000] EWCA Civ 36, [2001] 2 BCLC 116

Links:

Bailii

Statutes:

Insolvency Act 1986 221

Jurisdiction:

England and Wales

Citing:

See AlsoStocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
See AlsoStocznia Gdanska SA v Latvian Shipping Company and Others ComC 25-May-2001
When a claimant commenced litigating several issues, but succeeded only on some of the them, the rule allowing an award of costs to the generally successful party was not dependent upon questions of whether the party was reasonable to have raised . .

Cited by:

See AlsoStocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
See AlsoStocznia Gdanska SA v Latvian Shipping Company and Others ComC 25-May-2001
When a claimant commenced litigating several issues, but succeeded only on some of the them, the rule allowing an award of costs to the generally successful party was not dependent upon questions of whether the party was reasonable to have raised . .
CitedMcGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
See AlsoLatvian Shipping Company and Others v Stocznia Gdanska Sa CA 21-Jun-2002
A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by . .
See AlsoStocznia Gdanska Sa v Latvian Shipping Company and others CA 23-Jul-2002
Application for leave to appeal to the House of Lords refused. . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Jurisdiction

Updated: 20 May 2022; Ref: scu.89567

Haqen v Zeehaqhe: ECJ 1990

ECJ ‘Article 6(2) makes provision for a special jurisdiction, which the Plaintiff may choose because of the existence, in clearly defined situations, of a particularly close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings (judgment of 22 November 1978 in Case 33/78 Somafer SA v Saar-Ferngas AG [1978] ECR 2183). The Convention thus enables the entire dispute to be heard by a single court. Consequently, the related nature of the main action and the action on a warranty or guarantee suffices to found jurisdiction on the part of the court in which the action on a warranty or guarantee has been brought, irrespective of the basis on which it has jurisdiction in the original proceedings; in this respect, the jurisdiction provided for in Article 2 and that provided for in Article 5 are equivalent.’

Citations:

[1990] ECR 1-1845

Jurisdiction:

European

Cited by:

CitedKinnear and Others v Falconfilms Nv and Others QBD 27-Jan-1994
The deceased had died in an accident whilst filming in Spain for the defendants. The plaintiff personal representatives sought damages here, while the defendants denied that the court had jurisdiction under the 1968 Convention, and said that the . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 20 May 2022; Ref: scu.512159

Raffelsen Zentralbank Osterreich Ag v Five Star General Trading Llc and Others: CA 1 Mar 2001

An assigned marine insurance policy was subject to a claim. The issue was the ability of an assignee to claim as a claim in contract where the proper law was that under which the contract was made, or a claim of an intangible right to claim against insurers, a proprietary right resolved by the lex situs of the attached debt, namely France. A three stage process was identified, involving the characterisation of the issue in question, the selection of the rule of conflict of laws which lays down a connecting factor for that issue and the identification of the system of law which is tied by that connecting factor to that issue, the overall aim being to identify the most appropriate law to govern the particular issue. This process of characterisation ‘falls to be undertaken in a broad internationalist spirit in accordance with the principles of conflicts of laws of the forum, here England.’ This claim fitted more readily a contractual model.
Mance LJ spoke of the principles governing the identification of the appropriate law, saying: ‘The overall aim is to identify the most appropriate law to govern a particular issue. The classes or categories of issue which the law recognises [when characterising the relevant issue] are man-made, not natural. They have no inherent value, beyond their purpose in assisting to select the most appropriate law. A mechanistic application, without regard to the consequences, would conflict with the purpose for which they were conceived.’
. . And: ‘There is a rule of practice that the assignor should be joined, but that rule will not be insisted upon where there is no need, in particular if there is no risk of a separate claim by the assignor.’

Judges:

Aldous LJ, Mance LJ, Charles J

Citations:

Times 21-Feb-2001, Gazette 01-Mar-2001, [2001] EWCA Civ 68, [2001] CLC 84, [2001] 3 All ER 257, [2001] Lloyds Rep IR 460, [2001] 1 LLR 597, [2001] 1 Lloyd’s Rep 597, [2001] 1 All ER (Comm) 961, [2001] 2 WLR 1344, [2001] 1 QB 825

Links:

Bailii

Statutes:

Convention on the Law Applicable to Contractual Obligations (1980) 12, Contracts (Applicable Law) Act 1990

Jurisdiction:

England and Wales

Citing:

Appeal fromRaiffeisen Zentralbank Osterreich Ag v Five Star General Trading Llc and Others QBD 21-Jun-2000
A marine insurance policy governed by English law but made with French insurers was assigned, but notice of the assignment was not made according to French law through a bailiff. Nevertheless recovery under the policy was ordered. Under the Rome . .
CitedMacmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) CA 2-Nov-1995
The question of ownership of a company is to be decided according to law of country where the company is incorporated. Conflict of laws rules are to be used to look to the issue in the case not the cause of action.
Staughton LJ said: ‘In any . .

Cited by:

CitedKnight v Axa Assurances QBD 24-Jul-2009
The claimant was injured in a car accident in France. The defendant insurer said that the quantification of damages was to be according to French law and the calculation of interest also. The claimant said that English law applied.
Held: The . .
CitedBuhr v Barclays Bank plc CA 26-Jan-2001
The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank . .
CitedIran v Berend QBD 1-Feb-2007
The Republic of Iran sought the return of a fragment of ancient Achaemenid relief in the possession of the defendant, saying that it was part of an ancient monument. The defendant said that she had bought it properly at an auction in Paris. The . .
CitedGorjat v Gorjat ChD 29-Jun-2010
The claimant, daughters of the deceased by his first marriage challenged a transfer of a significant sum by their father before his death, saying that he lacked mental capacity. . .
CitedCox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Lists of cited by and citing cases may be incomplete.

Insurance, Jurisdiction

Updated: 19 May 2022; Ref: scu.85641

Kinnear and Others v Falconfilms Nv and Others: QBD 27 Jan 1994

The actor Roy Kinnear died on being thrown from a horse while making a film in Spain. His widow sought damages from the fim company who in turn sought to issue a third party notice against those involved in Spain.
Held: A third party claim with a sufficient nexus may bring a main claim with Brussels Convention.

Judges:

Phillips J

Citations:

Times 01-Mar-1994, [1994] EWHC QB 1, [1996] 1 WLR 920, [1994] 3 All ER 42, [1994] ILPr 731

Links:

Bailii

International, Personal Injury, Health and Safety, Jurisdiction

Updated: 19 May 2022; Ref: scu.82801

Handelsveem Bv and Others v Coreck Maritime GmbH: ECJ 1 Dec 2000

When a court looked at a choice of the jurisdiction clause, it was not necessary that the clause should withoutmore establish the jurisdiction. A clause could be effective where the forum will be ascertainable at the time by reference to a the circumstances. In this case of the clause required a dispute under a bill of lading to be decided in the country where the carrier had his principal place of business. The requirement under the convention, that the parties should have should of ‘agreed’ the jurisdiction was satisfied where they had agreed a method of establishing it. The Brussels convention applied only if, first, at least one of the parties to the original contract was domiciled in the contracting state and, second, the parties agreed to submit any dispute before the Court of a contracting state.
‘The Court has held that, by making the validity of a jurisdiction clause subject to the existence of an ‘agreement’ between the parties, article 17 of the Convention imposes on the court before which the matter is brought the duty of examining first whether the clause conferring jurisdiction upon it was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated, and that the purpose of the requirements as to form imposed by article 17 is to ensure that consensus between the parties is in fact established . . ‘

Citations:

Times 01-Dec-2000, C-387/98, [2000] ECR I-9337, [2000] EUECJ C-387/98

Links:

Bailii

Cited by:

CitedBols Distilleries VB (T/A As Bols Royal Distilleries) and Another v Superior Yacht Services Ltd PC 11-Oct-2006
(Gilbraltar) The parties disputed the management contract for a racing yacht, and also the juridiction of the Supreme Court of Gibraltar to hear the case. Bols said that under regulation 2(1) Gibraltar had no jurisdiction.
Held: The English . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Transport, European

Updated: 19 May 2022; Ref: scu.81216

Group Josi Reinsurance Company Sa v Universal General Insurance Company: ECJ 9 Aug 2000

The Brussels Convention rules allowing jurisdiction apply whenever the proposed defendant is domiciled in a convention country. The plaintiff need not be. The special rules on jurisdiction which apply to insurance cases do not apply to reinsurance contracts.

Citations:

Times 09-Aug-2000, C-412/98, [2000] EUECJ C-412/98

Links:

Bailii

Statutes:

Brussels Convention on Enforcement of Judgments in Civil and Commercial Matters 1968

Cited by:

CitedOwusu v Jackson, Mammee Bay Resorts Limited etc CA 19-Jun-2002
Defendants appealed against an order refusing an order to restrain service of the proceedings on certain defendants outwith the jurisdiction. The claimant was seriously injured holidaying at a resort managed by the several defendants in Jamaica in . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Insurance, European

Updated: 19 May 2022; Ref: scu.81058

Michael Gayle v the Queen (Jamaica): PC 2 Jul 1996

The judicial Committee of the Privy-Council is not to be used as second court of appeal on matters of fact.

Citations:

Times 02-Jul-1996, Appeal No 40 of 1995, Appeal No 40 of 1995, [1996] UKPC 3, [1996] UKPC 18, [2012] ECHR 1636, [2012] ECHR 1635, [2012] ECHR 1637, [1990] ECHR 34, [2009] ECHR 619, [1980] ECHR 9, [1997] ECHR 205, [2014] ECHR 293, [1978] ECHR 8, [2010] ECHR 2263, [1994] ECHR 59, [2011] ECHR 2422, [1985] ECHR 14, [2016] ECHR 699, [2016] ECHR 704, [2016] ECHR 986, [2017] ECHR 32

Links:

PC, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii

Jurisdiction, Criminal Practice, Commonwealth

Updated: 19 May 2022; Ref: scu.80774

Domicrest Ltd v Swiss Bank Corporation: QBD 7 Jul 1998

An English claimant sued a Swiss bank for a negligent mis-statement made in a telephone call between England and Switzerland. The Swiss banker represented that the transmission of a copy payment order by the bank to the claimant was a guarantee that payment would be made for the amount referred. The claimant relied on the representations to release goods in Switzerland and Italy on receipt of the copy payment order from the bank rather than waiting until it had been paid. The bank refused to pay on three copy payments orders in respect of goods which had been released from store in Switzerland and Italy.
Held: The place of the damage was in Switzerland and Italy, where the goods were released without payment, rather than England, where the Swiss purchaser would have paid the price. The reasons for that finding were (a) that it was by reference to the loss of the goods that the damages were pleaded; and (b) that the essence of the complaint was that the goods were released prior to payment. Where negligent misstatement is alleged, the law governing the action is that of the country where the statement was made. The tortious act occurs when the statement is made not when and where the statement is relied upon.

Citations:

Times 16-Jul-1998, [1999] QB 548, [1998] EWHC 2001 (QB)

Links:

Bailii

Statutes:

Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988

Cited by:

CitedMazur 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 . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Negligence

Updated: 19 May 2022; Ref: scu.80090

D v P (Forum Conveniens): FD 7 Oct 1998

Where parties had divorced here, but had previously entered into a separation agreement abroad, it was proper to stay the ancillary relief proceedings here, and prefer the jurisdiction where the agreement had been made.

Citations:

Gazette 07-Oct-1998, [1998] 2 FLR 25

Cited by:

CitedMoore v Moore CA 20-Apr-2007
The family were wealthy, and had lived for some time in Spain. On the breakdown of the marriage, the wife returned to the UK, and sought ancillary relief here, though the divorce had been in Spain. The husband argued that this should be dealt with . .
Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction

Updated: 19 May 2022; Ref: scu.79765

Canada Trust Co and Others v Stolzenberg and Others (No 4): CA 14 May 1998

When appealing against fully argued refusal of jurisdiction, parties may not bring in additional evidence at that appeal save in exceptional circumstances.

Judges:

Nourse, Pill, Waller LJJ

Citations:

Times 14-May-1998, [1998] EWCA Civ 774

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoCanada Trust Company and others v Stolzenberg and others CA 28-Apr-1997
(Oral judgment, Millett LJ) The question was whether it is a proper exercise of discretion to refuse to make an order for the production of documents at an interlocutory hearing on the sole ground that they are wanted in order to establish the . .
See AlsoCanada Trust Company and others v Stolzenberg and others (2) CA 29-Oct-1997
The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must . .
See AlsoThe Canada Trust Co and Others v Stolzenberg and Others ChD 10-Nov-1997
A foreign resident defendant failing to comply with an order for discovery should be barred from defending after having been given notice. . .

Cited by:

See alsoCanada Trust Co and Others v Stolzenberg and Others (No 2) HL 12-Oct-2000
The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 19 May 2022; Ref: scu.78867

C Inc Plc v L and Another: QBD 4 May 2001

The plaintiff had obtained judgment against L, only then to find that she claimed that all only apparent assets were held by her on trust for or as agent for her husband who was overseas. The plaintiff therefore now set out to add him, and to claim an asset freezing injunction against him.
Held: The court had power to order the assets of that third party to be frozen, even though they were not a party to the action, and no judgment existed against them. The court also has power to order him to be joined as a party, rather than for proceedings to be issued against him. Even though judgment had been obtained, the parties remained in dispute as to the means of payment, and that dispute remained part of the original proceedings. The word ‘proceedings’ in rule 19(2) should be interpreted widely and extend to circumstances where judgment had been obtained but not yet satisfied. The rule did not require that the disputed issue should be as between the existing parties. The court had the power to join the third party. The purpose of an asset freezing order ‘remains the protection of assets so as to provide a fund to meet a judgment obtained by the claimant in the English Courts’.
The court considered the effect of the decision in Cardile: ‘It seems to me that the High Court of Australia has stated that, in Australia, the assets of a third party can be frozen in aid of enforcing a pending or actual judgment, even where those assets are not beneficially owned by the actual or potential judgment debtor. The necessary precondition for power to make a freezing order over the third party’s assets is that the actual or potential judgment creditor should have some legal right to get at the third party’s funds. However, on my reading of the judgments, particularly pars. 57 and 121, the High Court of Australia is stating that there must be some casual link between the fact that the claimant has obtained a judgment against the principal defendant and thus has a legal right, as a consequence of the liability giving rise to the judgment, to go against the assets of the third party. I will delay deciding whether English law permits the exercise of the freezing order jurisdiction where there is such a casual link until I have considered the remaining two factors I have identified. ‘
and ‘If there is a claim for substantive relief by A against B (whether or not in the English Court), or A has obtained a judgment against B (in the English Court), then the English Court can grant a freezing order against the assets of C. But, generally, it must be arguable that those assets, even if in C’s name, are, in fact, beneficially owned by B.
The crucial question is whether the Court can go one stage further. Does it have the power to grant a freezing order against the assets of C when: (i) A has a substantive right against B (e.g. in the form of a judgment); (ii) the assets of C are not, even arguably, beneficially owned by B. The answer, to my mind, depends on how one interprets the phrases ‘ancillary’ and ‘incidental to and dependent upon’ used by Lords Browne-Wilkinson and Mustill in the Channel Tunnel case. In the Cardile case the High Court of Australia has, effectively, given those phrases a broad interpretation. But, critically, the High Court of Australia held that the right of A to a freezing order against C is dependent upon A having a right against B and that right itself giving rise to a right that B can exercise against C and its assets. Therefore the freezing order sought by A against C is ‘incidental to’ A’s substantive right against B and it is also ‘dependent upon’ that right.’

Judges:

Aikens J

Citations:

Times 04-May-2001, [2001] 2 Lloyds Law Reports 459, [2001] 2 All ER (Comm) 446

Statutes:

Civil Procedure Rules 19.4(2)(a), 6.30(2), 6.20(3)

Citing:

CitedCardile v LED Builders PTY Limited 1999
(High Court of Australia) The respondent (‘LED’) twice sought relief from Eagle Homes PTY Limited (‘Eagle’) for copyright infringement. Anticipating the proceedings the only shareholders and controllers of Eagle, the claimants arranged the . .

Cited by:

CitedSiskina (owners of Cargo lately on Board) v Distos Compania Naviera SA HL 1979
An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed . .
CitedHM Revenue and Customs v Egleton and others ChD 19-Sep-2006
The claimants had applied for the winding up of a company for very substantial sums of VAT due to it. Anticipating that hearing, it now sought restraining orders against the director defendants, alleging that there had been a carousel or missing . .
CitedTrade Credit Finance No Ltd and Another v Bilgin and others ComC 3-Nov-2004
. .
CitedMesser Griesheim Gmbh v Goyal Mg Gases Pvt Ltd ComC 7-Feb-2006
The claimant sought to have set aside its own judgment obtained by default so as to apply for a second judgment. The first would not be enforceable abroad against the defendant, because a default judgment was not enforceable in India. The second . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 19 May 2022; Ref: scu.78800

Carman v The Kronos Group SA: 2006

The court acted on the basis that section 213 of the 1996 Act had extra-territorial effect.

Citations:

[2006] BCC 451

Statutes:

Insolvency Act 1996 213

Jurisdiction:

England and Wales

Cited by:

CitedBilta (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, Jurisdiction

Updated: 18 May 2022; Ref: scu.565825

Rousillon v Rousillon: 1880

Fry J considered Copin v Adamson as authority for the view that the foreign court would have jurisdiction where the judgment debtor ‘has contracted to submit himself to the forum in which the judgment was obtained’.

Judges:

Fry J

Citations:

(1880) 14 Ch D 351

Jurisdiction

Updated: 18 May 2022; Ref: scu.565128

Jamieson v Northern Electricity Supply Corp (Private) Ltd: 1970

It was argued that there had been an implied submission to the Zambian courts by an employee because the contract of employment was entered into in, and to be performed in Zambia, and assumed to be governed by Zambian law, and that a Azambian judgement on the matter should be enforced.
Held: Lord Johnston (at 116) took the view that a submission was not lightly to be implied, and could not be implied from a conjunction of those factors. Registration of the Zambian judgment was set aside because the 1933 Act did not apply to Zambia.

Judges:

Lord Johnston

Citations:

1970 SLT 113

Cited by:

CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Scotland, Jurisdiction

Updated: 18 May 2022; Ref: scu.565131

SA Consortium General Textiles v Sun and Sand Agencies Ltd: CA 1978

The expression ‘agreed . . to submit to the jurisdiction’ in the 1933 Act meant ‘expressed willingness or consented to or acknowledged that he would accept the jurisdiction of the foreign court. It does not require that the judgment debtor must have bound himself contractually or in formal terms so to do’

Judges:

Goff LJ

Citations:

[1978] QB 279

Statutes:

Foreign Judgments (Reciprocal Enforcement) Act 1933 4(2)(a)(ii)

Cited by:

CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 18 May 2022; Ref: scu.565133

Copin v Adamson: CA 1875

The plaintiff sought to enforce here a judgment obtained in France against the defendant, who now pleaded that he was not a native of and had not lived in France. He had not been served with any process or had any involvement in or knowledge of the proceedings in France. The plaintiff said that he owned shares in a French company which made him subject to its statutes which in turn provided for French law and jurisdiction on related disputes, and that any member must elect a French domicile, or that election could be made for it. The company having become insolvent, he was now pursued for the subscription promised.
Held: The reply was effective even though he had hadno notice of the proceedings: ‘The Courts of this country consider the defendant bound . . where he has contracted to submit himself to the forum in which the judgment was obtained.’

Citations:

(1875) 1 Ex D 17, (1875) 45 LJQB 15, (1875) 33 LT 560, (1875) WR 85

Cited by:

CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 18 May 2022; Ref: scu.565110

Emanuel v Symon: CA 1908

Kennedy LJ confirmedtaht the Faridkote case had decided of a suggested obligation to submit to a foreign jurisdiction that it: ‘was not to be implied from the mere fact of entering into a contract in a foreign country’.

Judges:

Kennedy LJ

Citations:

[1908] 1 KB 302

Citing:

CitedSirdar Gurdyal Singh v The Rajah of Faridkote PC 28-Jul-1894
(Punjab) THe Rajah of Faridkote had obtained in the Civil Court of Faridkote (a native state) ex parte judgments against Singh (his former treasurer), which he sought to enforce in Lahore, in British India. Singh was not then resident in Faridkote . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 18 May 2022; Ref: scu.565132

Foote Cone and Belding Reklim Hizmetleri v Theron: 2006

The Defendant was the sole owner of a property in Kingston, but denied that he was domiciled in the UK.
Held: Residence was established. The house was one of his real residences at the relevant time. He apparently came to England regularly, about once a month, and was registered for council tax and utility bills. Patten J said: ‘The Kingston property is his home when he lives in England . . One can have a residence in more than one place and domicile under the statutory definition depends on residence, not on the old common law test of where one intended to permanently reside in the sense of indefinitely and exclusively’.

Judges:

Patten J

Citations:

[2006] EWHC 1585

Jurisdiction:

England and Wales

Cited by:

CitedHigh Tech International Ag and others v Deripaska QBD 20-Dec-2006
The clamants brought actions for damages for torts said to have been committed by the defendants in Russia. They said that the defendant was domiciled within the jurisdiction under the EU Regulation.
Held: Domicile for the issue of . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 18 May 2022; Ref: scu.464219

The Esso Malaysia: 1974

A Russian seaman died as the result of a collision in international waters between two foreign registered vessels. His family sought to claim here.
Held: The benefit of the Fatal Accidents Acts can, in principle, be claimed by a foreigner. The rule which imposed liability for negligently causing a fatal injury was a universal rule of the law maritime. Brandon J declined to express any view on the applicability of the 1846 Act to deaths occurring abroad or in territorial waters.

Judges:

Brandon J

Citations:

[1974] 3 WLR 341, [1975] 1 QB 198

Statutes:

Fatal Accidents Act 1976

Jurisdiction:

England and Wales

Citing:

AppliedDavidsson v Hill CA 1901
Ships collided at sea. The negligent crew were aboard the British ship. A crew member on the Norwegian ship died in the collision, and his family sued here.
Held: The family had a right of action against the defendant owners of the British . .

Cited by:

CitedRoerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
CitedCox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
CitedCox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Jurisdiction

Updated: 18 May 2022; Ref: scu.449036

National Bank of Greece SA v Westminster Bank Executor and Trustee Co (Channel Islands) Ltd: 1971

Judges:

Lord Hailsham LC

Citations:

[1971] AC 945

Cited by:

CitedNML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 18 May 2022; Ref: scu.441569

The Bank of Australasia v Harding: 1850

The members, resident in England, of a company formed for the purpose of carrying on business in a place out of England, are bound, in respect of the transactions of that company, by the law of thc country in which the business is carried on accordingly. – A statute authorising an unincorporated company to sue and to be sued the name of its chairman, constitutes the chairman, when so suing or so sued, an agent for the members of the company in the aflairs of the company. – The members of a company formed for the purpose of carrying on business in a colony, are not discharged from liability on judgments obtained in the colony against the chairman, by reason of their having been resident in England, not being served with process, and having received no notice of the proceedings. – Where a statute subjects the property of members for the time being of an unincorporated company, to execution upon a judgment obtained against their chairman, reserving in other respects the liabilities of parties, the remedies given against the property are in cumulation, and a member may be proceeded against by action. – A judgment in a colonial court is no estoppel; nor is it pleadable in bar in an action brought in England for the same cause.

Citations:

[1850] EngR 74, (1850) 9 CB 662, (1850) 137 ER 1052

Links:

Commonlii

Cited by:

CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company, Jurisdiction

Updated: 18 May 2022; Ref: scu.297421

The Bank of Australasia v Nias: 1851

By an Act of the Colonial Legislature of New South Wales, it was provided tbat a banking company should sue and be sued in the name of its chairman, arid that execution on any judgment against the oompany might be issued against the property of any member for the time being, in like manner as if such judgment had been obtairied against such member personally. In assumpsit against a member of the company on a judgment obtained in the colony against the chairman: Held, that the colonial Legislature had authority to pass the Act, and that there was nothing repugnant to the law of England, or to natural justice, in enacting that actions on contracts made by the company in the colony, instead of being brought against the shareholders individually, should be brought against the chairman whom they had appointed to represent them. That a judgment recovered in such an action, after service of process on the chairman, had the same effect beyond the territory of the colony which it would have had if the defendant had been personally served with process, and, he being a party to the record, the recovery had been personally against him. That, although in an action on a foreign or colonial judgment the judgment is examinable to a certain extent., as, for the purpose of shewing want of jurisdiction, or that defendant was not summoned, or that the judgment was fraudulently obtained, yet such judgment is not examinable upon the merits, as, for the purpose of shewing that the contract sued upon was not made, or was procured by fraud, or that the judgment was erroneous, But that a foreign or colonial judgment obtained against a co-contractor cannot be insisted on by way of merger in an action on the judgment.

Citations:

[1851] EngR 77, (1851) 16 QB 717, (1851) 117 ER 1055

Links:

Commonlii

Cited by:

CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company

Updated: 18 May 2022; Ref: scu.296393

Banque des Marchands de Moscou (Koupetschesky) v Kindersley: CA 1951

Sir Raymond Evershed MR discussed the need to keep the doctrine against approbation and reprobation within limits.

Judges:

Sir Raymond Evershed MR

Citations:

[1951] Ch D 112

Cited by:

CitedSmith v Skanska Construction Services Ltd QBD 29-Jul-2008
The court considered whether the driver of a vehicle involved in a fatal road accident in Thailand was driving within the authority of the UK employers. The driver was not an employee but had authority to use company vehicles for tasks for the . .
CitedMcLaughlin and Others v Newall QBD 31-Jul-2009
The claimant asked the court to strike out the defence that the claimant had compromised his claim by agreement. The defendant had written letters critical of the claimants who were governors of a school which had disciplined his daughter a teacher . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 18 May 2022; Ref: scu.277726

Tolofson v Jensen: 1994

Canlii (Supreme Court of Canada) Conflict of laws – Torts – Traffic accident – Injured parties not resident in province where accident occurred – Actions instituted in home provinces of injured parties – Whether lex fori or lex loci delicti should apply – If substantive law that of jurisdiction where accident occurred, whether limitation period substantive law and therefore applicable in forum or procedural law and therefore not binding on court hearing case – Automobile Insurance Act, L.Q. 1977, c. 68, ss. 3, 4 – Code civil du Bas Canada, art. 6 – Limitation of Actions Act, R.S.S. 1978, c. L-15 – Vehicles Act, R.S.S. 1978, c. V-3, s. 180(1).
These appeals deal with the ‘choice of law rule’: which law should govern in cases involving the interests of more than one jurisdiction specifically as it concerns automobile accidents involving residents of different provinces. The first case also raises the subsidiary issue of whether, assuming the applicable substantive law is that of the place where the tort arises, the limitation period established under that law is inapplicable as being procedural law and so not binding on the court hearing the case,
La Forest J said: ‘the purpose of substantive / procedural classification is to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties.’

Judges:

La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ

Citations:

(1994) 120 DLR (4th) 289, [1994] 3 SCR 1022, [1995] 1 WWR 609, 100 BCLR (2d) 1, 26 CCLI (2d) 1, 175 NR 161, 22 CCLT (2d) 173, 51 BCAC 241, [1994] CarswellBC 1, JE 95-61, [1994] SCJ No 110 (QL), 175 NSR (2d) 161, [1994] ACS no 110, 32 CPC (3d) 141, 52 ACWS (3d) 40, 77 OAC 81, 7 MVR (3d) 202

Links:

Canlii

Jurisdiction:

Canada

Cited by:

CitedHarding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 17 May 2022; Ref: scu.242988

Bumper Development Corporation Ltd v Commissioner of Police of the Metropolis: CA 1991

An Indian temple having a legal persona recognised in India may assert rights and make claims under English Law. Even though it would not be recognised as a litigant if based in England and Wales, it was nonetheless entitled, in accordance with the principle of comity of nations, to sue in England.
Purchas LJ said: ‘The particular difficulty arises out of English law’s restriction of legal personality to corporations or the like, that is to say the personified groups or series of individuals. This insistence on an essentially animate content in a legal person leads to a formidable conceptual difficulty in recognising as a party entitled to sue in our courts something which on one view is little more than a pile of stones.’
Issues of foreign law are issues of fact. However, they are a special kind of fact. The Court is entitled to apply its own legal knowledge to determining the issue. However, it is confined to materials on foreign law which are exhibited to an expert report. The court considered the approach to be taken where there was conflicting evidence as to foreign law. The court must resolve differences in the same way as in the case of other conflicting evidence as to facts. It is not permissible to reject uncontradicted expert evidence unless it is patently absurd.

Judges:

Purchas LJ

Citations:

[1991] 1 WLR 1362, [1991] 4 All ER 638

Jurisdiction:

Commonwealth

Cited by:

CitedLloyd v Svenby QBD 27-Feb-2006
The two claimants sought title to a car registration plate and to a chassis number. They were to be applied to historic racing cars.
Held: The power to assign registration marks lay with the Secretary of State. Any legal rights rested not with . .
CitedRegina v D(R) Misc 16-Sep-2013
Crown Court at Blackfriars – the court was asked to what extent a witness wanting, from religious conviction, to hide her face with the niqaab form of Islamic dress should be allowed to do so, whilst giving evidence.
Held: The court considered . .
CitedXP v Compensa Towarzystwo Sa and Another QBD 13-Jul-2016
The claimant had been injured in two separate car accidents suffering physical and psychiatric injuries. Liability was admitted but the insurers coud not agree apportionment of losses. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 17 May 2022; Ref: scu.238747

The Eleftheria: 1970

In general, and all other things being equal, it is more satisfactory (from the point of view of ensuring that justice is done) for the law of a foreign country to be decided by the courts of that country.
Brandon J said: ‘I further regard, of substantial importance the circumstance that Greek law governs, and is, in respects which may well be material, different from English law. ‘
‘I recognise that an English court can, and often does, decide questions of foreign law on the basis of expert evidence from foreign lawyers. Nor do I regard such legal concepts as contractual good faith and morality as being so strange as to be beyond the capacity of an English court to grasp and apply. It seems to be clear, however, that in general, and other things being equal, it is more satisfactory for the law of a foreign country to be decided by the courts of that country. That would be my view, as a matter of common sense, apart from authority. But if authority be needed, it is to be found in The Cap Blanco [1913] P. 130 per Sir Samuel Evans P. at p. 136 and in Settlement Corporation v. Hochschild [1966] Ch. 10, per Ungoed-Thomas J., at p. 18…’
Brandon J identified the advantage on an appeal:
‘Apart from the general advantage which a foreign court has in determining and applying its own law, there is a significant difference in the position with regard to appeal. A question of foreign law decided by a court of the foreign country concerned is appealable as such to the appropriate appellate court of that country. But a question of foreign law decided by an English court on expert evidence is treated as a question of fact for the purposes of appeal, with the limitations in the scope of an appeal inherent in that categorisation. This consideration seems to me to afford an added reason for saying that, in general and other things being equal, it is more satisfactory for the law of a foreign country to be decided by the courts of that country. Moreover, by more satisfactory I mean more satisfactory from the point of view of ensuring that justice is done.’

Judges:

Brandon J

Citations:

[1970] P 94

Jurisdiction:

England and Wales

Cited by:

ApprovedDonohue v Armco Inc and others HL 13-Dec-2001
The appellant had sought injunctions against the respondent US companies to restrain their commencing proceedings in the US against him. The parties had negotiated for the purchase of the run-off liabilities of a defunct insurance company. . .
CitedOT 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. . .
CitedThe El Amria 1981
The court set out the principles to be applied where a party seeks to enforce or act in breach of a choice of jurisdiction contract. If a party seek to sue here in breach of such a clause, the court has a discretion to stay, but a stay should be . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 17 May 2022; Ref: scu.228193

Bank Voor Handel En Scheepvaart NV v Slatford: 1951

A Dutch bank deposited a quantity of gold in London before the start of the 1939-1945 war. In May 1940 the Netherlands were invaded and they became an enemy territory for the purposes of the 1939 Act. The Royal Netherlands Government, with the approval of the UK Government, exercised their powers from London and in May 1940 they issued a decree which purported to have the effect of transferring property, including the gold, to the Netherlands Government (the A.1 decree). In July 1940, the Board of Trade made a vesting order transferring the gold to the Custodian of Enemy Property. He sold it for andpound;2 million. In May 1950 the Netherlands Government made an order returning the property in the gold to the Bank. The Bank then claimed against the Custodian in conversion for the present value of the gold. Devlin J held that the A.1 decree was ineffective to transfer moveable property in this country.
Held:
Devlin J said: ‘I think it is convenient to begin by considering what is the general principle of our law with regard to foreign legislation affecting property within our territory. There is little doubt that it is the lex situs which as a general rule governs the transfer of movables when effected contractually. The maxim mobilia sequuntur personam is the exception rather than the rule, and is probably to be confined to certain special classes of general assignments such as marriage settlements and devolutions on death and bankruptcy. Upon this basis the A.1 decree, not being a part of English law, would not transfer the property in this case. But decrees of this character have received in the authorities rather different treatment. Although there is not, as far as I am aware, any authority which distinguishes general legislation, such as part of a civil code, from ad hoc decrees, the effectiveness of such decrees does not appear on the authorities to be determined exclusively by the application of the lex situs. Apart from two recent cases on which the plaintiffs greatly rely, there has been no case in which such a decree has been enforced in this country, but the grounds for refusing effect to them have been variously put. Sometimes it is said that the decree is confiscatory. In the textbooks it is said sometimes that as a matter of public international law no State ought to seek to exercise sovereignty over property outside its own territory, and therefore the principle of comity is against enforcement; and sometimes it is said that the principle of effectiveness is against enforcement, since no State can expect to make its laws effective in the territory of another State. Dicey, Conflict of Laws, 6th ed., p. 13, states: ‘A State’s authority, in the eyes of other States and the courts that represent them, is, speaking very generally, coincident with, and limited by, its power. It is territorial. It may legislate for, and give judgments affecting, things and persons within its territory. It has no authority to legislate for, or adjudicate upon, things or persons not within its territory.’
Denning LJ said: ‘In this connection I would observe that the test of being a servant does not rest nowadays on submission to orders. It depends on whether the person is part and parcel of the organisation.’

Judges:

Devlin J, Denning LJ

Citations:

[1953] 1 QB 248, [1951] 2 TLR 755, [1951] 2 All ER 779

Statutes:

Trading With The Enemy Act 1939

Cited by:

CitedPeer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
CitedReady Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Employment

Updated: 16 May 2022; Ref: scu.186123

Beck v Value Capital Ltd (No 2): 1974

The plaintiffs had obtained leave to serve proceedings out of the jurisdiction. They then sought to add a claim and argued that once an additional cause of action was shown to be generically within the scope of Order 11, that was an end of the matter. The court must exercise discretion as if the case were a domestic one, and may not enquire whether leave would have been granted in the circumstances of the particular case.
Held: The court disagreed. Goulding said: ‘No authority directly on the point has been cited. In principle I find the plaintiff’s proposition unacceptable. It seems to me manifestly unfair to a foreign defendant, and it would often enable a plaintiff to circumvent the court’s discretion under RSC Ord. 11 by the familiar device of throwing a sprat to catch a mackerel . . It is enough to say that the discretion to allow an amendment . . will not be exercised an injustice to the opposite party will result, and that it is in general unjust to amend a writ served under RSC Ord. 11 by adding something which the court would probably have refused to sanction under RSC Ord. 11.’
If proceedings are served out of the jurisdiction, and the plaintiff later seeks to bring in by amendment another cause of action which could also be the subject of leave to serve out, then it seems that the amendment is permissible, so long as no injustice to the opposite party will result.

Judges:

Goulding J

Citations:

[1975] 1 WLR 6, [1974] 3 All ER 442

Cited by:

Appeal fromBeck v Value Capital Ltd (No 2) CA 1976
. .
CitedNML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 15 May 2022; Ref: scu.441567

Holland v Leslie: CA 1894

Leave to serve out of the jurisdiction had been granted in relation to a bill of exchange which had been erroneously described in the statement of claim indorsed on the writ.
Held: The Court upheld the order giving leave to amend the writ.
Lord Esher MR said: ‘Leave was given for the issue of the writ so indorsed, and service of notice of it out of the jurisdiction; such notice was duly served upon the defendant abroad; and the defendant has in due course appeared in this country. It is argued that, under these circumstances, the writ cannot be amended. Why not? The rules with regard to amendments appear in terms to apply to such a case. It is contended, nevertheless that there cannot be an amendment, because the writ was for service, and has been served, out of the jurisdiction. But the defendant has now appeared in this country; and I can see no reason why an amendment such as this should not be made, just as in the case of a writ served within the jurisdiction. We were pressed with the possibility that, if such a writ could be amended, it might be amended so as to introduce a cause of action in respect of which leave could not have been originally given for service out of the jurisdiction. That is not the present case. When that case arises, there may be good reason for refusing to allow the amendment.’

Judges:

Lord Esher MR, A L Smith LJ

Citations:

[1894] 2 QB 450

Cited by:

CitedNML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Jurisdiction

Updated: 15 May 2022; Ref: scu.441565

In re Aktiebolaget Robertsfors and La Societe Anonymes des Papeteries de l’AA: CA 1910

The court was asked to construe O.XI r.8A made in 1909 to extend the power to serve out of the jurisdiction to summonses, orders or notices.
Held: The power was only exercisable in situations where service out of a writ was permissible under O.XI r.8 and so did not cover a summons to set aside an arbitration award.

Citations:

[1910] 2 KB 727

Jurisdiction:

England and Wales

Cited by:

DistinguishedIn re Liddell’s Settlement Trusts CA 1936
The Court upheld an injunction issued against Mrs Liddell who was not a party to the proceedings and who had taken her children to the United States. When granting an injunction, the court should operate on the basis that it will be obeyed, and not . .
CitedMasri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Jurisdiction

Updated: 15 May 2022; Ref: scu.372595

Union Bank of Finland Ltd v Lelakis: 1997

Proceedings had been served within the jurisdiction under submission to jurisdiction clauses contained in the guarantees upon which suit was brought against the defendant. However service abroad was objected to.
Held: Order 11, rule 9(4) was held to authorise service out of the jurisdiction with leave. It was sufficient to engage Order11 r.9(4) if the proceedings against the defendant were proceedings which could have been served out of the jurisdiction. They did not actually have to be so served.

Citations:

[1997] 1 WLR 590

Jurisdiction:

England and Wales

Cited by:

CitedMasri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 15 May 2022; Ref: scu.372593

Munden v The Duke of Brunswick: 1847

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

Citations:

[1847] EngR 5, (1847) 10 QB 656, (1847) 116 ER 248

Links:

Commonlii

Jurisdiction

Updated: 15 May 2022; Ref: scu.300621

British Airways Board v Laker Airways Limited: 1984

Laker began an action in the US seeking damages under the US Sherman and Clayton Acts against other airlines, including British Airways and British Caledonian Airways. They said that the other airlines had combined in a conspiracy to undermine Lakers business by undercutting it. The plaintiffs now began a counter action seeking to restrain the US action, saying that the UK was a more convenient jurisdiction.
Held: Laker would have no such action available in England, and therefore could not be restrained from the US action.

Judges:

Parker J

Citations:

[1984] QB 142

Cited by:

Appeal fromBritish Airways Board v Laker Airways Limited CA 2-Jan-1984
The plaintiffs sought an injunction to restrain the defendant from pursuing an action in the US. That action alleged conspiracy by the plaintiffs to work together to put the defendant out of business on the North Atlantic route by anticompetitive . .
At First instanceBritish 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 . .
CitedNorris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Torts – Other

Updated: 15 May 2022; Ref: scu.270740

Standing v Eastwood and Co: 1912

A court’s jurisdiction cannot be created by the contract or consent of the parties.

Judges:

Fletcher Moulton LJ

Citations:

[1912] 5 BWCC 268

Cited by:

CitedLeicester University Students Union v Mahomed EAT 6-Dec-1994
The Union appealed a finding of unfair dismissal and discrimination. It denied that she had sufficient continuous service, saying that the peirod suggested involved working for two employers. It also said that since the objection went as to . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 15 May 2022; Ref: scu.270356

Society of Lloyd’s v White and others: QBD 14 Apr 2000

A court in England could issue an injunction preventing parties continuing an action in Australia even though the court there had accepted jurisdiction. The contract contained an exclusive jurisdiction clause for dispute to be settled here, and the Australian court did not appear to have considered relevant English court decisions. Such an action must be speedy, and made with respect for the foreign court.

Citations:

Times 14-Apr-2000

Jurisdiction:

England and Wales

Jurisdiction, International

Updated: 15 May 2022; Ref: scu.89382

Channel Tunnel Group Ltd and Another v Balfour Beatty Construction Ltd and Others: CA 1 Apr 1992

The arbitration agreement specified that disputes were to be arbitrated in Brussels, therefore there was no jurisdiction in an English court.

Citations:

Gazette 01-Apr-1992

Statutes:

Arbitration Act 1950 12 (6) (h)

Cited by:

Appeal fromChannel Tunnel Group Ltd v Balfour Beatty Construction Ltd and Others HL 17-Feb-1993
The court has the power to stay an action which pursued a remedy which was outside the terms of the arbitration agreement determining the dispute. The contract between the parties provided for disputes to be settled by arbitration in Belgium. The . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Jurisdiction

Updated: 15 May 2022; Ref: scu.78975

Molnlycke AB v Proctor and Gamble Ltd: 1992

The court considered the patentability of a baby’s disposable diaper.

Citations:

[1992] 1 WLR 1112, [1992] FSR 549

Statutes:

Lugano Convention 6

Cited by:

CitedCanada Trust Co and Others v Stolzenberg and Others (No 2) HL 12-Oct-2000
The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined . .
CitedGenerics (UK) Ltd and others v H Lundbeck A/S HL 25-Feb-2009
Patent properly granted
The House considered the patentability of a chemical product, citalopram made up of two enantiomers, as opposed to the process of its creation, questioning whether it could be new or was insufficient within the 1977 Act.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Intellectual Property

Updated: 15 May 2022; Ref: scu.264076

Krenge v Krenge: 1999

The power in an English court to stay family proceedings here in favour of a foreign jurisdiction exists independently of any statute.

Citations:

[1999] 1 FLR 969

Cited by:

CitedMoore v Moore CA 20-Apr-2007
The family were wealthy, and had lived for some time in Spain. On the breakdown of the marriage, the wife returned to the UK, and sought ancillary relief here, though the divorce had been in Spain. The husband argued that this should be dealt with . .
Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction

Updated: 14 May 2022; Ref: scu.251425

Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH: HL 1982

Brinkibon, based in London wanted to buy steel from the defendants who were in Austria. They accepted Stahag’s offer by Telex to Vienna. Brinkibon wanted to sue Stahag and in order to have leave to serve out of the jurisdiction, had to establish that the contract had been formed in England.
Held: The contract had been formed in Austria. In the case of instantaneous communication, which included telex, the contract is normally formed in the jurisdiction where the acceptance is received.
Lord Wilberforce said: ‘Since 1955 the use of Telex communication has been greatly expanded, and there are many variants on it. The senders and recipients may not be the principals to the contemplated contract. They may be servants or agents with limited authority. The message may not reach, or be intended to reach, the designated recipient immediately: messages may be sent out of office hours, or at night, with the intention, or on the assumption that they will be read at a later time. There may be some error or default at the recipient’s end which prevents receipt at the time contemplated and believed in by the sender. The message may have been sent and/or received through machines operated by third persons. And many other variants may occur. No universal rule can cover all such cases; they must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgement where the risks should lie.’

Judges:

Lord Wilberforce

Citations:

[1983] 2 AC 34

Jurisdiction:

England and Wales

Cited by:

CitedChartbrook Ltd v Persimmon Homes Ltd and Another ChD 2-Mar-2007
The claimants had entered into an agreement with the defendant house-builder for the development of a site which the claimants had recently acquired. The structure of the agreement was that the developer would obtain planning permission and, under . .
Lists of cited by and citing cases may be incomplete.

Contract, Jurisdiction

Updated: 14 May 2022; Ref: scu.251172

Watson v Daily Record Ltd: CA 1907

The court considered what was necessary to justify the court taking jursdiction against a non-resident defendant in a defamation action.
Cozens-Hardy LJ said: ‘Now it seems plain that the Court has a discretion, and that a plaintiff cannot acquire a right to serve a defendant out of the jurisdiction by the mere fact that his writ claims an injunction. The Court must at least be satisfied that the claim for an injunction is made in good faith. This was decided by the Divisional Court in De Bernales v. New York Herald, where Lopes LJ. said: ‘I do not believe the claim for an injunction is made bona fide, but merely to bring the case within Order XI. There is no evidence of any apprehended repetition of the libel, and indeed, having regard to the circumstances, it is most improbable that it will be repeated . . The giving leave to serve notice of writs out of the jurisdiction is a matter of judicial discretion.’ It must not be inferred from the language used by Lopes LJ in that case that want of good faith is a complete or exhaustive statement of the grounds for refusing to order service out of the jurisdiction. If the Court is satisfied that, even assuming the plaintiff to have a good cause of action, there is no reasonable probability that he will obtain an injunction, the Court ought not to consider the insertion of a claim for an injunction as sufficient to justify service on a person resident out of the jurisdiction. The Court is bound to consider all the circumstances disclosed by the affidavits, and to take care that a Scotchman, or it may be a foreigner, is not improperly made amenable to the orders of an English tribunal.’

Judges:

Cozens-Hardy LJ

Citations:

[1907] 1 KB 853

Cited by:

CitedAshton Investments Ltd. and Another v OJSC Russian Aluminium (Rusal) and others ComC 18-Oct-2006
The claimants sought damages for breach of confidence saying that the defendants had hacked into their computer systems via the internet to seek privileged information in the course of litigation. The defendants denied this and said the courts had . .
Lists of cited by and citing cases may be incomplete.

Defamation, Jurisdiction

Updated: 14 May 2022; Ref: scu.245759

Hesperides Hotels Ltd and Another v Aegean Turkish Holidays Ltd and Another: CA 1978

An action was brought by the displaced owner of a hotel in Northern Cyprus taken over by the Turkish administration.
Held: The court declined to exercise an original jurisdiction in the northern part of Cyprus.
Lord Denning MR said that he would, if necessary, unhesitatingly hold that the courts of this country can recognise the laws or acts of a body which is in effective control of a territory even though it has not been recognised by the United Kingdom government de jure or de facto, ‘at any rate, in regard to the laws which regulate the day to day affairs of the people, such as their marriages, their divorces, their leases, their occupations, and so forth’.
However: ‘Underlying this case is a divergence of view between two autonomous administrations in Cyprus. The northern administration sets itself up as an administration entitled to pass laws requisitioning this property. The southern administration denies the claim and says that the requisitioning was unlawful. It is not the province of these courts to resolve such a dispute. It is a dispute which should be settled by negotiation between the two administrations, aided, we hope, by intermediaries of goodwill. It is indeed, we hope, being settled at this very moment by negotiations in Vienna. If a settlement is reached it should deal with all questions relating to the taking of property, compensation and so forth. But, whether it is settled or not, it is not for these courts to decide between these conflicting views. The dispute, in my view, is not justiciable here. The action should be struck out as not sustainable. I would allow the appeal accordingly.’
Roskill LJ stated: ‘The position in Cyprus, both on the Greek and on the Turkish side, is at the present juncture evolutionary and continues to evolve and develop. Delicate international negotiations have taken place and are about to continue. In those circumstances, for an English court to arrogate to itself the right at this juncture to determine questions of the right to possession of land in Cyprus by entertaining an action for conspiracy to trespass is something which in my view it ought not to do. Even if I am wrong in the view that the Mocambique [British South Africa Co v Companhia de Mocambique [1893] AC 602] principle applies, and even if I thought that our courts had jurisdiction and therefore a discretion whether or not to grant the injunction sought, in accordance with the principles recently laid down by the House of Lords in American Cyanamid v Ethicon Ltd. [1975] AC 396, I would not hesitate in the existing circumstances to exercise my discretion against granting the injunction sought.’

Judges:

Lord Denning MR

Citations:

[1978] 1 QB 205

Jurisdiction:

England and Wales

Cited by:

Appeal fromHesperides Hotels Ltd v Aegean Turkish Holidays Ltd, Muftizahde HL 1978
No English action lay for trespass to a hotel on the island of Cyprus, but an action did lie for the conversion of the chattels present in that same hotel. Questions of comity might well be involved, and it had to be for Parliament to change the . .
CitedNorth 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 . .
CitedLucasfilm 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 . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 13 May 2022; Ref: scu.230014

Warren v Warren: 1972

(Australia) The plaintiff was injured in a car accident while on a visit to New South Wales, where she had no right of action in tort against her husband. She began her action in Queensland, where she was ordinarily resident and domiciled where such a right of action did exist.
Held: The defendant’s application to set aside the writ was dismissed. There was a degree of flexibility in the rule which admitted of exception where clear and satisfactory grounds were shown why it should be departed from and that, on the facts of that case, it was right to apply the law of the forum even if the acts were not actionable by the law of the locus delicti.

Judges:

Matthews J

Citations:

[1972] Qd R 386

Jurisdiction:

Australia

Cited by:

CitedRed Sea Insurance Co Ltd v Bouygues SA and Others PC 21-Jul-1994
Lex loci delicti (the law of the jurisdiction in which the act complained of took place) can exceptionally be used when the lex fori (the jurisdiction formally assigned) gives no remedy. In the case of a claim under a foreign tort, the double . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Torts – Other

Updated: 13 May 2022; Ref: scu.222522

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

Conflict of laws – English exclusive jurisdiction clause in Towcon contract – Proceedings in South Africa in breach of clause – whether anti-suit injunction previously granted by Clarke J (see [1996] 2 LI Rep 140) should be discharged

Judges:

Timothy Walker J

Citations:

[1997] 2 Lloyd’s Rep 533, [1997] CLC 1497

Jurisdiction:

England and Wales

Cited by:

Appeal fromBouygues Offshore SA v Caspian Shipping Company, and others CA 24-Jun-1998
A court need not first decide liability before applying grant of limitation of liability decree under the Act. That different Conventions were applied by UK and South Africa did not stop the establishment of a limitation fund for payment of damages . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 13 May 2022; Ref: scu.220776

Somchai Liangsiriprasert v Government of the United States of America: PC 1991

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

Judges:

Lord Griffiths

Citations:

[1991] 1 AC 225, (1991) 92 Cr App R 77, [1990] UKPC 31

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedTreacy v Director of Public Prosecutions HL 1970
Blackmail was alleged under section 21 of the 1968 Act, the letter making the unwarranted demand with menaces having been posted from England to an intended victim in Germany.
Held: The appeal was dismissed. To allow an English court to have . .

Cited by:

AppliedRegina v Smith (Wallace Duncan) (No 1) CACD 13-Nov-1995
In the offence of fraudulent trading, ‘creditors’ are those to whom money was owed, including future creditors, not just those who can presently sue. Deceptions practised in UK, but having their effect abroad are prosecutable here. The only feature . .
CitedRegina v Manning CACD 24-Jun-1998
The defendant appealed his conviction for obtaining property by deception where part of the offence had taken place abroad.
Held: Smith should be overturned. The last act or terminatory theory remains the binding common law of England and . .
AppliedRegina v Sansom 1991
Conspiracy over international borders – comity rule applied to provide jurisdiction. . .
CitedHer Majesty’s Advocate v Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah HCJ 8-Dec-1999
The court considered whether the criminal complaint that the defendants had been part of a conspiracy to set a bomb aboard an airliner which exploded over Scotland, was justiciable in Scotland. Lord Sutherland: ‘Where however, a crime of the utmost . .
CitedOffice of the King’s Prosecutor, Brussels v Cando Armas and others HL 17-Nov-2005
The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation . .
AppliedRegina v Sansom CACD 2-Jan-1991
The appellants had been charged with conspiracy contrary to section 1 of the Criminal Law Act 1977. The court rejected the argument that the principle laid down in Somchai referred only to the common law and that it could not be applied to . .
CitedRegina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
CitedRegina v Latif; Regina v Shahzad HL 23-Jan-1996
The defendant had been lured into the UK by the unlawful acts of customs officers. He claimed abuse of process.
Held: The category of cases in which the abuse of process principles can be applied is not closed. A customs officer committing an . .
ApprovedRegina v Manning CACD 23-Jul-1998
The accused dishonestly falsified a number of insurance cover notes which were said to be documents required for an accounting purpose, namely, those of the persons who had sought cover and to whom the cover notes were forwarded. The accused ran his . .
CitedPurdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
CitedSheppard and Another, Regina v CACD 29-Jan-2010
The defendants appealed against their convictions for publishing racially inflammatory material. They skipped bail during the trial, were convicted in their absence, and returned after being refused asylum in the US. The convictions related to . .
Lists of cited by and citing cases may be incomplete.

Crime, Jurisdiction, Extradition

Updated: 13 May 2022; Ref: scu.196558

International Factors v Rodriguez: CA 1978

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

Judges:

Sir David Cairns and Bridge LJ, Buckley LJ

Citations:

[1979] 1 QB 351, [1978] 3 WLR 877

Jurisdiction:

England and Wales

Cited by:

Per incuriamMCC Proceeds Inc (Incorporated Under the Laws of the State of Delaware, USA As Trustee of the Maxwell Macmillan Realization Liquidating Trust) v Lehman Brothers International (Europe) CA 19-Dec-1997
The owner only of an equitable interest in goods may not assert his interest against a bona fide purchaser of the legal title to the goods. International Factors v. Rodriguez was decided per incuriam to the extent that it held that equitable rights . .
CitedMazur 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 . .
CitedIran 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 . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Torts – Other

Updated: 13 May 2022; Ref: scu.199745

Norris v Chambres: 1862

A company director had advanced part of a loan for the purchase of a mine in Prussia. He died, and because of lack of funds, his estate risked losing everything. His estate sought its recovery.
Held: ‘With respect to this advance, I think that, upon the authority of Penn v. Lord Baltimore, which has often been acted upon, the Plaintiff would have been entitled to succeed if he could have proved that the claim for a declaration of the proposed charge or lien on the Maria Anna mine was founded on any contract or privity between him or the deceased [director] and the Defendants, the purchasers of the mine, and if there had not been a suit in the Prussian Courts, in which the same question was raised and had been decided in the Plaintiff’s favour. But I agree in thinking with the Master of the Rolls that the Plaintiff has failed to shew any such contract or privity. Upon the evidence adduced the purchasers of the mine, whom he sues, are to be considered as mere strangers, and any notice which they may have had of the transactions between [the deceased director] and [the old company] (which has now ceased to exist) cannot give this Court jurisdiction to declare the proposed lien or charge on lands in a foreign country. An English Court ought not to pronounce a decree, even in personam, which can have no specific operation without the intervention of a foreign Court, and which in the country where the lands to be charged by it lie would probably be treated as a brutum fulmen. I do not think that the Court of Chancery would give effect to a charge on land in the county of Middlesex so created by a Prussian Court sitting as Dusseldorf or Cologne. But another objection is lis alibi pendens, a suit pending before the proper tribunal in Prussia, and that by this tribunal, a decree has actually been pronounced in favour of the Plaintiff, giving him what he seeks . . We must suppose that the Court at Dusseldorf has ample means to enforce the whole of its decree, and that the Plaintiff will have the full benefit of that decree, which may be considered as creating a debt for which the opposite parties are personally liable and a charge upon the property sold.’

Judges:

Lord Campbell LC

Citations:

(1862) 3 De G.F. and J. 583

Jurisdiction:

England and Wales

Citing:

Appeal fromNorris v Chambres 1861
A company director had committed suicide; the claim was brought by his estate. The company had been established in England to work a Prussian coal mine, and the director had personally advanced a large sum towards its purchase. The company agreed to . .
CitedPenn v Lord Baltimore 1750
The court compelled Lord Baltimore to comply with the obligations he had assumed to the Penn family, by setting the Mason-Dixon line, demarcating boundaries between the privately-owned territories of Maryland, Pennsylvania and Delaware, and . .

Cited by:

CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
CitedDeschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .
ExplainedMacmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) ChD 1-Jul-1993
Bona fide chargees for value of shares situated in New York and held on trust for Macmillan were able, by application of New York law, to take the shares free of Macmillan’s prior equitable interest of which the chargees had had no notice. Where . .
Lists of cited by and citing cases may be incomplete.

Equity, Jurisdiction

Updated: 13 May 2022; Ref: scu.199520

In re Duke of Wellington: ChD 1947

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

Judges:

Wynn-Parry J

Citations:

[1947] Ch 506

Jurisdiction:

England and Wales

Cited by:

CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
CitedIran v Berend QBD 1-Feb-2007
The Republic of Iran sought the return of a fragment of ancient Achaemenid relief in the possession of the defendant, saying that it was part of an ancient monument. The defendant said that she had bought it properly at an auction in Paris. The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 13 May 2022; Ref: scu.199519

Loucks v Standard Oil Co of New York: 1918

An English court will exclude a foreign decree only when it ‘would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal’

Judges:

Judge Cardozo

Citations:

[1918] 120 NE 198,

Jurisdiction:

England and Wales

Cited by:

CitedPeer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 12 May 2022; Ref: scu.186119

Definitely Maybe (Touring) Ltd v Marek Lieberberg Konzertagentur GmbH: ComC 2001

The claimant supplied the services of the pop group Oasis to the defendant concert organisers for a concert in Germany. They sued for payment here, but the respondent said that proceedings should have been commenced in Germany.
Held: The contract was made in Germany for services to be provided in Germany. The proper forum to hear the case was Germany.

Judges:

Morison J

Citations:

[2001] All ER 283, [2001] 1 WLR 1745

Statutes:

Rome Convention on the law applicable to contractual obligations 1980 4(5)

Jurisdiction:

England and Wales

Cited by:

CitedCaledonia Subsea Limited v Micoperi SRL SCS 9-Mar-2001
The parties disputed which court should have jurisdiction to hear their contract dispute.
Held: There has been an ongoing difference in the interpretation of the Rome Convention as to the relative weight to be given to the place of business of . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Updated: 12 May 2022; Ref: scu.179883

Re Seagull Manufacturing Co Ltd: ChD 3 May 1993

A company director who was resident overseas may be subject to disqualification proceedings.

Citations:

Ind Summary 03-May-1993

Statutes:

Company Directors Disqualification Act 1986 6

Jurisdiction:

England and Wales

Citing:

See AlsoIn Re Seagull Manufacturing Co Ltd (In Liquidation); Tucker CA 22-Feb-1993
The court has jurisdiction to order the public examination of a company director in in a compulsory liquidation about the affairs of the company, even though he might not be within the jurisdiction. The court found no reasons of comity which would . .

Cited by:

See AlsoRe Seagull Manufacturing Co Ltd (In Liquidation) (No 2) ChD 12-Jan-1994
A director resident abroad is still subject to UK jurisdiction. . .
Lists of cited by and citing cases may be incomplete.

Company, Jurisdiction

Updated: 11 May 2022; Ref: scu.85878

Pearce v Ove Arup Partnership Ltd and Others: ChD 17 Mar 1997

A UK court may not decline jurisdiction in enforcing Dutch copyright law if it is asked to do so.

Citations:

Times 17-Mar-1997, Gazette 16-Apr-1997

Statutes:

Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) (Cmnd 7395)

Jurisdiction:

England and Wales

Cited by:

Appeal fromPearce v Ove Arup Partnership Ltd and others CA 21-Jan-1999
An English court does not have to refuse an application which sought to apply a foreign copyright law in a claim based on acts committed abroad on the basis that not actionable here. Such restrictions applicable to land actions only: ‘It is, we . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Jurisdiction

Updated: 11 May 2022; Ref: scu.84630

National Justice Compania Naviera Sa v Prudential Assurance Co Ltd (No 2): CA 15 Oct 1999

An English court does have power to order a non-resident non-party to contribute to the costs of a case, where that party was domiciled in a convention country. Here the third party was alleged to be the alter ego of the actual party. There was no requirement to have sued that third party first under any convention entered into by the UK.

Citations:

Gazette 27-Oct-1999, Times 15-Oct-1999, Gazette 03-Nov-1999, [2000] 1 WLR 603, [2000] 1 All ER 37, [1999] 2 All ER (Comm) 673, [2000] 1 Lloyd’s Rep 129, [2000] CP Rep 13, [2000] CLC 22, [2000] 1 Costs LR 37, [2000] IL Pr 490, [2000] Lloyd’s Rep IR 230, (1999) 149 NLJ 1561, Independent 20-Oct-1999, Independent 22-Nov-1999

Statutes:

Supreme Court Act 1981 51, Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) (Cmnd 7395)

Jurisdiction:

England and Wales

Citing:

Appeal fromNational Justice Compania Naviera S A v Prudential Assurance Company Ltd ComC 30-Jul-1999
An application to make a non party liable for costs under section 51(1) Supreme Court Act 1981 is not a claim within Title II of the Brussels Convention, for it is an incidental part of the substantive proceedings already before the Court. It makes . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Costs

Updated: 11 May 2022; Ref: scu.84185

First American Corporation and Another v Al-Nahyan and Others; Clark Clifford and Others v First American Corporation: CA 17 Aug 1998

A court had a discretion to order oral examination of a witness to support actions abroad but should not normally do so if the purpose appeared to be merely to obtain information rather than evidence.

Citations:

Times 17-Aug-1998

Statutes:

Evidence (Proceedings in Other Jurisdictions) Act 1975 2

Jurisdiction:

England and Wales

Jurisdiction

Updated: 10 May 2022; Ref: scu.80553

Foxen v Scotsman Publications Ltd and Another: QBD 17 Feb 1994

A transfer for forum conveniens reasons is not possible between jurisdictions within the UK, and an action in England would not be stayed to allow an intended action in Scotland to proceed on that basis.

Citations:

Ind Summary 28-Mar-1994, Times 17-Feb-1994

Defamation, Litigation Practice, Jurisdiction

Updated: 10 May 2022; Ref: scu.80652

Metall and Rostoff v Donaldson Inc: CA 1990

The court looked at how to establish where a tort was committed in order then to test its jurisdiction: ‘As the rule now stands it is plain that jurisdiction may be assumed only where (a) the claim is founded on a tort and either (b) the damage was sustained within the jurisdiction or (c) the damage resulted from an act committed within the jurisdiction. Condition (a) poses a question which we consider below: what law is to be applied in resolving whether the claim is ‘founded on a tort?’ Condition (b) raises the question: what damage is referred to? It was argued for A.C.L.I. that since the draftsman had used the definite article and not simply referred to ‘damage,’ it is necessary that all the damage should have been sustained within the jurisdiction. No authority was cited to support the suggestion that this is the correct construction of the Convention to which the rule gives effect and it could lead to an absurd result if there were no one place in which all the plaintiff’s damage had been suffered. The judge rejected this argument and so do we. It is enough if some significant damage has been sustained in England. Condition (c) prompts the inquiry: what if damage has resulted from acts committed partly within and partly without the jurisdiction? This will often be the case where a series of acts, regarded by English law as tortious, are committed in an international context. It would not, we think, make sense to require all the acts to have been committed within the jurisdiction, because again there might be no single jurisdiction where that would be so. But it would certainly contravene the spirit, and also we think the letter, of the rule if jurisdiction were assumed on the strength of some relatively minor or insignificant act having been committed here, perhaps fortuitously. In our view condition (c) requires the court to look at the tort alleged in a common sense way and ask whether damage has resulted from substantial and efficacious acts committed within the jurisdiction (whether or not other substantial and efficacious acts have been committed elsewhere): if the answer is yes, leave may (but of course need not) be given. But the defendants are, we think, right to insist that the acts to be considered must be those of the putative defendant, because the question at issue is whether the links between him and the English forum are such as to justify his being brought here to answer the plaintiffs’ claim.’

Citations:

[1990] 1 QB 391

Cited by:

CitedAshton Investments Ltd. and Another v OJSC Russian Aluminium (Rusal) and others ComC 18-Oct-2006
The claimants sought damages for breach of confidence saying that the defendants had hacked into their computer systems via the internet to seek privileged information in the course of litigation. The defendants denied this and said the courts had . .
CitedCooley 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 . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Torts – Other

Updated: 10 May 2022; Ref: scu.245758

Metall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc: CA 1990

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

Judges:

Slade LJ

Citations:

[1990] 1 QB 391

Citing:

Appeal fromMetall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc and another QBD 29-Mar-1988
The plaintiff had suffered damage when given negligent advice. It obtained a judgment but the company became insolvent, and it now sought to sue the US parent company in conspiracy. The defendant said that to establish conspiracy it was necessary . .
CitedParker v Schuller CA 1901
The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the . .

Cited by:

CitedLewis and others v King CA 19-Oct-2004
The claimant sought damages for defamation for an article published on the Internet. The claimant Don King sued in London even though he lived in the US as did the defendants.
Held: A publication via the internet occurred when the material was . .
CitedTotal Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
CitedLand Securities Plc and Others v Fladgate Fielder (A Firm) CA 18-Dec-2009
The claimants wanted planning permission to redevelop land. The defendant firm of solicitors, their tenants, had challenged the planning permission. The claimants alleged that that opposition was a tortious abuse because its true purpose was to . .
CitedNML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
CitedStobart Group Ltd and Others v Elliott QBD 11-Apr-2013
The defendant applied to the court for various officers of the cliamant companies to be subject to contempt proceedings. The claimants asked the court to strike of the defendant’s counterclaim and to make a civil restraint order against him. There . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Torts – Other

Updated: 09 May 2022; Ref: scu.220029

The Case of the SS “Lotus”: PCIJ 1927

Jurisdiction is primarily territorial in both international and domestic law: ‘the first and foremost restriction imposed by international law upon a state is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another state. In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a state from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to states to extend the application of their laws and the jurisdiction of their courts to persons, property and acts ‘outside their territory’, and if, as an exception to this general prohibition, it allowed states to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that states may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every state remains free to adopt the principles which it regards as best and most suitable.’

Citations:

(1927) PCIJ Series A – No 10

Jurisdiction:

England and Wales

Cited by:

CitedThe United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Lists of cited by and citing cases may be incomplete.

International, Jurisdiction

Updated: 09 May 2022; Ref: scu.591914

Novello and Co Ltd v Hinrichsen Editions Ltd: 1951

The court refused to give credit to a foreign law as it applied to goods here because the law was confiscatory.

Citations:

[1951] 1 Ch 595

Cited by:

CitedPeer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 09 May 2022; Ref: scu.186122

The El Condado: SCS 1939

Lord Aitchison said: ‘The penal laws of foreign countries are strictly local, and affect nothing more than they can reach and can be seized by virtue of their authority; a fugitive who passes hither, comes with all his transitory rights; he may recover money held for his use, stock, obligations and the like; and cannot be affected in this country, by proceedings against him in that which he has left, beyond the limits of which such proceedings do not extend.
Does that rule apply equally to legislation which is not confiscatory or penal in the full sense, but the effect of which is to subject the owner of moveable property in his use and control of that property, to the overriding control of the State where, as in this case, the property is requisitioned by the State for public purposes? There is no direct authority upon the point. The nearest case is perhaps the Jupiter (No. 3), [1927] P. 122. It was there held that the nationalisation decrees of the Union of Socialist Soviet Republics did not operate on moveable property outside the territory of the Republic, whether such property belonged to a Russian citizen or not. It was a fact in that case that the Jupiter was not at the date when the decrees were promulgated within Russian territory. In this case it is expressly conceded that at the date of the requisition the El Condado was not within Spanish territorial waters and she was in the port of Greenock when the de facto possession was taken. In the Jupiter, Hill, J., pointed out that no distinction could be drawn between ships and other chattels and that the same principles were applicable to both, and he reached the conclusion that the decree of nationalisation was ineffectual to transfer the property in the ship, which was not within the jurisdiction at the date of the decree. His judgment both as regards fact and law was affirmed by the Court of Appeal.
The case is not on all fours, but in my opinion the principle of Hill J.’s, judgment applies to the present case. The test to be applied is this: Supposing the Spanish Consul, instead of taking possession of the El Condado brevi manu, had sued the owners in the Courts for the delivery of the ship, could the action have succeeded? I am satisfied it could not. It could no more have succeeded than an action for recovery of moneys belonging to the Spanish owners in a bank in this country and requisitioned for the temporary use of the Spanish Government to finance the war. The conclusive answer would be that it was moveable property that was outwith the territory and jurisdiction of the foreign Sovereign State, and having been so at the date of the decree, it was not capable of being affected by the requisition. That is the ground of the Lord Ordinary’s judgment, and in my opinion he was right in dismissing the action, because if no wrong was committed by the owners of the ship in respect that the Spanish Government had no lawful possession of her, notwithstanding that they could not be impleaded, no liability can attach to the defenders under their bond of caution.’

Lord Mackay: ‘The question of extra-territoriality arises doubly. It is for us a question to be decided on Scots law (in the absence of any averment of a differing Spanish law) whether we are to hold that a decree of a de jure Government (issued in Barcelona or Madrid) can have extra-territorial effect upon (a) a ship situated in our harbours and (b) registered and belonging to a company domiciled under General Franco’s de facto Government’s jurisdiction.
I am of opinion that such extraterritorial validity is not recognised by Scots law. The sealed document exhibited in the former case and lying before us bears in its terms to have ‘requisitioned’ all ships of certain registration. That means, in my opinion, by Scots law, that a requisition of full property was intended in the full sense of the word ‘requisition’ as so well known to our Courts during the years 1914 to 1918.
I am prepared to hold, therefore, that the pretended title of the pursuers was, in fact and in law bad; and that the original owner’s right of ownership was never lost or adversely affected. Hence, no judicial wrong was ever done to the pursuers. I agree on these fuller grounds with the results of the Lord Ordinary, and I agree we should adhere to his judgment.’
Lord Pitman:
‘Requisition is not a legal method in this country of transferring property or rights of user of property, except at the instance of the Crown. It is the prerogative of the Crown in times of imminent national danger to take any steps necessary to secure the defence of the realm, and in 1914 by virtue of that power regulations were made by His Majesty in Council providing (inter alia) for the requisitioning of ships by the competent naval authority. It would be strange, indeed, if a foreign State were allowed to exercise similar powers and by its officials take forcible possession of property requisitioned.’

Lord Wark:‘This means further that they must show that the decree of law enacted on June 28, 1937, was valid and effectual according to the law of the forum to which they applied, namely, Scotland, to entitle them to the possession and control of a ship lying in a Scottish port, and which admittedly at the date of the decree and continuously thereafter had been outwith Spanish territory and territorial waters. I say ‘according to the law of the forum,’ because they make no averments of Spanish law on that matter.
I agree with the Lord Ordinary and with your Lordships that the decree is of no effect outwith Spanish territory and territorial waters, and gave the pursuers no right to requisition the El Condado or to take forcible possession of her as they did. On such a matter as this there is no difference between the law of England and the law of Scotland, and the decisions of the English Courts to which the Lord Ordinary refers, especially the case of the Jupiter (No. 3), [1927] P. 122 and 250, appear to me to be sufficient authority to support his decision. I refer to the judgment of Hill, J., at pp. 138 and 144, and of Atkin, L.J., and Lawrence, L.J., in the Court of Appeal at p. 255. It is true that that case dealt with the question of transfer of property, but the ratio upon which it proceeds is that the decree of a foreign Government has no effect whatever upon moveable property, including ships, outwith the territory. This doctrine rests upon the principle that jurisdiction is limited by effectiveness. It is recognised in several recent cases, notably in Sedgwick, Collins and Co. v. Rossia Insurance Company of Petrograd [1926] 1 K.B. 1, by Sargant, L.J., at p. 15, and by the Lord Chancellor in that case in the House of Lords, [1927] A.C. 95, at p. 102, and in Russian Commercial and Industrial Commercial and Industrial Bank v. Comptoir d’Escompte de Mulhouse, andc. [1925] A.C. 112, by Lord Chancellor Cave at p. 125, and Viscount Finlay at p. 137. ‘A State’s authority,’ says Professor Dicey in his Introduction to his treatise on the Conflict of Laws, 5th ed., at p. 20, in the eyes of other States and the Courts that represent them is speaking very generally, coincident with, and limited by, its power. It is territorial. It may legislate for, and give judgments affecting, things and persons within its territory. It has no authority to legislate for, or adjudicate upon, things or persons (unless they are its subjects) not within its territory.’

Judges:

Lord Aitchison, Lord Mackay

Citations:

[1939] 63 L1L Rep 330

Cited by:

CitedPeer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
Lists of cited by and citing cases may be incomplete.

Scotland, Jurisdiction

Updated: 09 May 2022; Ref: scu.186120

Lord Advocate v R W Forsyth Ltd: 1986

The taxpayer appealed his corporation tax assessments and had applied to a special commissioner for postponement of payment. The applications was to be heard in Glasgow, but for convenience it was heard in London, where it failed. The taxpayer then asked the High Court for judicial review of the postponment decisions. At the same time, the Crown had issued summonses in the Court of Session seeking payment of the tax due.
Held: The court granted a decree in favour of the Crown in both proceedings. The High Court had no jurisdiction in the matter. The decision of the special commissioner on a Scottish tax case, although sitting for administrative convenience in London, remained subject to the supervisory jurisdiction of the Scottish court. Confusion could result if more than one court had jurisdiction.

Judges:

Lord Wylie

Citations:

(1986) 61 TC 1

Jurisdiction:

Scotland

Cited by:

CitedTehrani v Secretary of State for the Home Department HL 18-Oct-2006
The House was asked whether an asylum applicant whose original application was determined in Scotland, but his application for leave to appeal rejected in London, should apply to challenge those decisions in London or in Scotland.
Held: Such . .
Lists of cited by and citing cases may be incomplete.

Corporation Tax, Scotland, Jurisdiction

Updated: 09 May 2022; Ref: scu.245384

Richardson v Richardson: KBD 1927

A bank owed debts to a judgment debtor customer on accounts held both in London and in Africa. It was accepted that the former were subject to a garnishee order. The dispute concerned the latter.
Held: The bank is no doubt indebted to the judgment debtor and the bank is within the jurisdiction. The Order deals with the case where ‘any other person is indebted to the judgment debtor and is within the jurisdiction’. But both in principle and upon authority, that means ‘is indebted within the jurisdiction and is within the jurisdiction’. The debt must be properly recoverable within the jurisdiction. In principle, attachment of debts is a form of execution, and the general power of execution extends only to property within the jurisdiction of the Court which orders it. A debt is not [properly] within the jurisdiction if it cannot be recovered here. The court was accordingly of opinion that moneys held by the bank to the credit of the judgment debtor at the African branches cannot be made the subject of a garnishee order, for they are not a debt recoverable within the jurisdiction.’ The court went on to hold that, if he was wrong in that conclusion, he would exercise his discretion against the making of an order.

Judges:

Hill J

Citations:

[1927] P 228,

Cited by:

DistinguishedSCF Finance Co Ltd v Masri (No 3) 1987
The court accepted that in a case where the garnishee was not indebted within the jurisdiction that might be relevant to the exercise of the court’s discretion. Since, in this case, the debt in question was an English debt, the court’s jurisdiction . .
No Longer good lawInterpool Ltd v Galani CA 1988
The debtor appealed against an order to answer questions and disclose documents relating to any debts owed to him or other property or means belonging to him outside the jurisdiction. The court looked at the examination of a judgment debtor under . .
CitedSociete Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Jurisdiction

Updated: 08 May 2022; Ref: scu.183542

Black v Sumitomo Corporation: CA 3 Dec 2001

The claimants proposed pre-action discovery which was resisted.
Held: A purpose of pre-action disclosure is to assist those who need disclosure as a vital step in deciding whether to litigate at all or to provide a vital ingredient in the pleading of their case. The rules required first that disclosure would be desirable in the interest of justice, and second that such an order would be fair to the parties if litigation was commenced, or would assist the parties to avoid litigation, or to save costs in any event. It was necessary not to confuse the jurisdictional and the discretionary aspects. There were two stages which may be hard to differentiate fully, but that may not be entirely necessary if they were satisfied. Rix LJ said: ‘In appropriate circumstances, where the jurisdictional thresholds have been crossed, the court might be entitled to take the view that transparency would be what the interests of justice and proportionality most required’.

Judges:

Lord Justice Ward, Lord Justice May, And, Lord Justice Rix

Citations:

[2003] 3 All ER 643, [2002] 1 Lloyd’s Rep 693, [2002] CPLR 148, [2002] 1 LLR 693, Times 25-Jan-2002, [2001] EWCA Civ 1819, [2002] 1 WLR 1562

Statutes:

Civil Procedure Rules 31.16(3)(d)

Jurisdiction:

England and Wales

Citing:

See AlsoBlack and Another v Sumitomo Corporation and others CA 28-Sep-2001
The defendants had been given extended time to comply with an order for pre-action discovery. Leave to appeal had been granted, with a stay, but there was confusion as to whether expedition was also ordered. The current date had been fixed, but . .

Cited by:

CitedUSP Strategies Plc and Another v London General Holdings Ltd and others ChD 1-Mar-2004
In the course of litigation, in the course of which summaries of advice given to the defendants by their lawyers was produced in evidence. They sought that it be struck out as protecetd by legal privilege.
Held: Though summarised, the . .
CitedMitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .
CitedHughes v Carratu International Plc QBD 19-Jul-2006
The claimant wished to bring an action against the defendant enquiry agent, saying that it had obtained unlawful access to details of his bank accounts, and now sought disclosure of documents. The defendant denied wrongdoing, and said it had . .
CitedBSW Ltd v Balltec Ltd ChD 11-Apr-2006
Pre-action disclosure. The test of a properly arguable case with a real prospect of success is the same test as is set out in CPR 13.3(1) and 24.2 in relation to setting aside judgments in default and resisting summary judgment respectively. The . .
CitedKneale v Barclays Bank Plc (T/A Barclaycard) ComC 23-Jul-2010
The bank appealed against an order for pre-action dicslosure and payment of the costs to date of its customers request for copies of the agreement under which it sought payment, and otherwise.
Held: After Carey it was not to be argued . .
ConsideredPineway Ltd v London Mining Plc ComC 20-May-2010
Application was made for an order for pre-action disclosure. Having considered Black v Sumitomo Steele J said: But although the likelihood of proceedings as such is not material, it does not follow in my judgment that the existence of a prima . .
CitedA and Another v Somerset County Council QBD 11-Oct-2012
Appeal against refusal of order for pre-action disclosure. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Civil Procedure Rules

Updated: 08 May 2022; Ref: scu.166950

Casio Computer Co Ltd v Sayo and Others: CA 8 Feb 2001

In a case alleging knowing assistance in the fraudulent transfer of funds through the banking system, acts forming part of the events had occurred within the jurisdiction. It was proper to join a defendant to the action here, even though he was resident in Spain. Under the Convention the defendants could be sued either in the jurisdiction of their residence or where any of the events giving rise to the tort occurred.

Citations:

Times 06-Feb-2001, Gazette 08-Feb-2001

Statutes:

Brussels Convention on Enforcement of Judgments in Civil and Commercial Matters 1968

Jurisdiction:

England and Wales

Cited by:

See AlsoCasio Computer Co Ltd v Sayo and others CA 11-Apr-2001
The court was asked whether a constructive trust claim based on dishonest assistance is a matter ‘relating to tort, delict or quasi delict’ for the purpose of Article 5(3) of the Brussels Convention?
Held: A constructive trust claim based upon . .
See AlsoCasio Computer Company Ltd v Sayo and others CA 13-Dec-2001
Applications for leave to appeal. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Equity, Banking

Updated: 08 May 2022; Ref: scu.78936

Feyerick v Hubbard: 1902

A contract between a British subJect and resident and a foreigner provided for the contact to be governed by the courts of Belgium.
Held: The clause was enough to give the Belgian courts jurisdiction and for the finding to be effective though he had not participated in the proceedings.

Judges:

Walton J

Citations:

(1902) 71 LJKB 509, (1902) 86 LT 829, (1902) 50 WR 557, (1902) 18 TLR 381, (1902) 46 Sol Jo 318

Jurisdiction:

England and Wales

Cited by:

CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 08 May 2022; Ref: scu.565111

Vogel v RA Kohnstamm Ltd: 1973

Enforcement at common law wa sought of an Israeli default judgment in favour of an Israeli buyer of leather against an English company. The plaintiffs argued that the defendants were resident in Israel or had by implication agreed to submit themselves to the jurisdiction of the Tel Aviv court, relying on these alleged facts for the implied submission: (a) the contract was made within the jurisdiction of the foreign tribunal; (b) by or through an agent residing there; (c) such agent was a person carrying on business and resident within that jurisdiction; and (d) the contract was to be performed within the jurisdiction.
Held: The defendants were not resident in Israel and that they had not agreed to submit to the jurisdiction of the Tel Aviv court. An agreement to submit to the jurisdiction of a foreign court must be express: it cannot be implied.

Judges:

Ashworth J

Citations:

[1973] QB 133

Jurisdiction:

England and Wales

Citing:

DisapprovedBlohn v Desser 1962
The plaintiff had obtained a default judgment in Austria against an Austrian partnership, and sought to enforce it in England against an English resident who was a sleeping partner in the firm. Her name was registered as a partner in the commercial . .

Cited by:

CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 08 May 2022; Ref: scu.565114

Sfeir and Co v National Insurance Co of New Zealand: 1964

The court was asked as to the enforceability of a Ghanaian judgment on a marine insurance contract under the 1920 Act.
Held: Mocatta J accepted that ‘an implied submission or agreement to submit can satisfy the words of [section 9(2)(b)]’. But it was not enough that it should be reasonable to find the implied submission or agreement: it must be a necessary one. It could not be implied from a choice of the governing law nor from the fact that claims were payable in Ghana.

Judges:

Mocatta J

Citations:

[1964] 1 Lloyds Rep 330

Statutes:

Administration of Justice Act 1920 9(2)(b)

Jurisdiction:

England and Wales

Cited by:

CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 08 May 2022; Ref: scu.565113

Hyman v Hyman: HL 1929

The husband had left the wife for another woman. The parties had entered into a deed of separation under which the husband had paid two lump sums and agreed to make weekly payments of 20 pounds for the life of the wife. The deed included a covenant by the wife that she would not institute any proceedings to make him pay more than this.
Held: The parties cannot lawfully covenant or make an agreement either not to invoke the jurisdiction or to control the powers of the court where jurisdiction in invoked. In partiicular, a wife cannot contract out of her matrimonial maintenance entitlements in a deed of separation.
Lord Atkin gave a short history of such contracts and commented on their effect: ‘We have to deal with a separation deed, a class of document which has had a chequered career at law. Not recognized by the Ecclesiastical Courts, such contracts were enforced by the common law. Equity at first frowned. Lord Eldon doubted but enforced them: cf. St. John v. St. John (1803) Ves. 525, 529 and Bateman v. Countess of Ross (1813) 1 Dow 235; and see the arguments of Sir Fitzroy Kelly and Mr Turner and of Mr Bethell in Wilson v. Wilson (1848) 1 H. L. C. 538, 550-553, 564, 565. Finally they were fully recognized in equity by Lord Westbury’s leading judgment in Hunt v. Hunt (1861) 4 D. F. and J. 221, in which he followed Lord Cottenham’s decision in Wilson v. Wilson (1846-1848) 1 HLCas 538, 550-553, 564, 565, where his argument for the respondent had prevailed. Full effect has therefore to be given in all courts to these contracts as to all other contracts. It seems not out of place to make this obvious reflection, for a perusal of some of the cases in the matrimonial courts seems to suggest that at times they are still looked at askance and enforced grudgingly. But there is no caste in contracts. Agreements for separation are formed, construed and dissolved and to be enforced on precisely the same principles as any respectable commercial agreement, of whose nature indeed they sometimes partake. As in other contracts stipulations will not be enforced which are illegal either as being opposed to positive law or public policy. But this is a common attribute of all contracts, though we may recognize that the subject-matter of separation agreements may bring them more than others into relation with questions of public policy.’ and ‘the court’s statutory powers to order a divorced husband to maintain his former wife were granted ‘partly in the public interest to provide a substitute for this husband’s duty of maintenance and to prevent the wife from being thrown upon the public for support”
Lord Hailsham LC said: ‘However, this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own convenant preclude herself from invoking the jurisdiction of the court or preclude the court from the exercise of that jurisdiction.’ The existence of the covenant did not preclude the wife from making an application to the court: ‘this by no means implies that, when this application is made, the existence of the Deed or its terms are not the most relevant factors for consideration by the court in reaching a decision.’

Judges:

Lord Hailsham LC, Lord Atkin

Citations:

[1929] AC 601, [1929] All ER 245, [1929] P 1

Jurisdiction:

England and Wales

Cited by:

CitedAI v MT FD 30-Jan-2013
The parties had asked the court to apply rabbinical law in resolving their matrimonial proceedings, applying by consent the result of a rabbinical arbitration.
Held: The court could not accept an ouster of its jurisdiction over children of the . .
CitedS v S FD 14-Jan-2014
The court was asked to approve a settlement reached under the IFLA arbitration scheme.
Held: The order was approved, but the court took the opportunity to give guidance. . .
CitedIlott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
CitedSharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Family

Updated: 08 May 2022; Ref: scu.509303

Mousavi-Khalkali v Abrishamchi and Another: CA 12 Nov 2020

Whether, in the light of travel advice issued by the Foreign and Commonwealth Office (‘the FCO’) on 17 May 2019, the Judge erred as a matter of fact in finding that there was no real risk that the appellant, a British/Iranian dual national, would not obtain substantial justice in Iran (the natural and appropriate forum), the alleged risk being that he would decide not to travel there to litigate for well-founded reasons.

Judges:

Lord Justice Phillips

Citations:

[2020] EWCA Civ 1493

Links:

Bailii

Jurisdiction:

England and Wales

Jurisdiction

Updated: 07 May 2022; Ref: scu.655662

Regina v Sansom: CACD 2 Jan 1991

The appellants had been charged with conspiracy contrary to section 1 of the Criminal Law Act 1977. The court rejected the argument that the principle laid down in Somchai referred only to the common law and that it could not be applied to conspiracies charged under the Act of 1977. It should now be regarded as the law of England on this point.

Judges:

Taylor LJ

Citations:

[1991] 2 QB 130, (1991) 92 Cr App R 115

Statutes:

Criminal Law Act 1977 1

Jurisdiction:

England and Wales

Citing:

AppliedSomchai Liangsiriprasert v Government of the United States of America PC 1991
(Hong Kong) Application was made for the defendant’s extradition from Hong Kong to the USA. The question was whether a conspiracy entered into outside Hong Kong with the intention of committing the criminal offence of trafficking in drugs in Hong . .

Cited by:

CitedRegina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
CitedSheppard and Another, Regina v CACD 29-Jan-2010
The defendants appealed against their convictions for publishing racially inflammatory material. They skipped bail during the trial, were convicted in their absence, and returned after being refused asylum in the US. The convictions related to . .
Lists of cited by and citing cases may be incomplete.

Crime, Jurisdiction

Updated: 07 May 2022; Ref: scu.235353

Frans Maas Logistics (UK) Ltd v CDR Trucking BV: ComC 23 Mar 1999

CMR Convention: Articles 31(2) and 36 – relating on jurisdiction. Brussels Convention: Article 57. Applicability in cases covered by the CMR convention.
Article 31.2 of CMR to be limited to proceedings brought by same claimant against the same defendant, and that, on that basis, the lis pendens provisions of articles 21 and 22 of the Brussels Convention should be applied to preclude a mirror image claim in England raising the same issues, but with the parties’ positions as claimant and defendant reversed, to those raised in prior Dutch proceedings.
A claim for a negative declaration could not give rise to a ‘pending’ action within the meaning of article 31(2), and that in any event an action for a negative declaration and an action for substantive monetary relief were not ‘on the same grounds’.

Judges:

Colman J

Citations:

[1999] 1 All ER (Comm), [1999] 2 Lloyd’s Rep 179

Statutes:

Convention on the Contract for the International Carriage of Goods by Road 31.1

Jurisdiction:

England and Wales

Cited by:

OverruledAndrea Merzario Ltd v Internationale Spedition Leitner Gesellschaft Gmbh CA 23-Jan-2001
. .
CitedBritish American Tobacco Denmark A/S v Kazemier Bv SC 28-Oct-2015
One container loaded with cigarettes was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 07 May 2022; Ref: scu.225403

In re Republic of Bolivia Exploration Syndicate Ltd: 1914

‘Even if it were conceivable that a diplomatic agent can waive his privilege, which is really the privilege of his sovereign, he can only do so intentionally, with full knowledge of his rights, and with the sanction of his sovereign or legation.’

Judges:

Astbury J

Citations:

[1914] 1 Ch 139

Statutes:

Diplomatic Privileges Act 1708

Jurisdiction:

England and Wales

Cited by:

CitedAziz 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, Jurisdiction

Updated: 07 May 2022; Ref: scu.227917

Cope v Doherty: CA 2 Jan 1858

Turner LJ: ‘An attempt was made on the part of the appellants to bring this case within Don v Lippman and cases of that class, but I think those cases have no bearing upon the point. This is a question of liability, and not of procedure.’

Judges:

Turner LJ

Citations:

(1858) 2 De G and J 614

Jurisdiction:

England and Wales

Citing:

Appeal fromCope v Doherty 1858
Owners of an American ship which had collided with and sunk another American ship applied to limit their liability pursuant to section 504 of the Merchant Shipping Act 1854.
Held: The section did not apply to collisions between foreigners. . .

Cited by:

CitedStevens v Head 18-Mar-1993
(High Court of Australia) The court considered a claim for damages arising out of a motor accident in New South Wales, where the claim had been brought in the courts of Queensland. The questions arose as to whether or not a provision in the Motor . .
CitedHarding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
CitedHarding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 06 May 2022; Ref: scu.222526

In re Compania Merabello San Nicholas SA: ChD 1973

A petition to wind up a one-ship Panamanian company was brought by a claimant cargo-owner who had ‘an unliquidated claim against the company for breach of [a] contract of carriage in respect of the shortages and for damages based on [the vessel] being unseaworthy’ The court was asked whether jurisdiction existed to wind up a foreign (Panamanian) company if it had no place of business within England or Wales and had never transacted business here.
Held: Jurisdiction did exist if there were one or more assets within the jurisdiction and if there were one or more persons, concerned in the proper distribution of the assets, over whom the jurisdiction was exercisable. The relevant asset was the insolvent shipowner’s chose in action in the form of an available claim under the relevant insurance policy made with an English insurance company. Once a winding-up order was made the 1930 Act would apply automatically and ‘the company’s claim against [its insurers] will vest in [the claimant cargo-owners] and could be pursued by [the claimant cargo-owners] against [the insurers], though as to the costs only after they have been quantified by taxation.’ The claimants’ petition was opposed by the insurers who were themselves creditors of the company and did not wish the insurance proceeds to go directly to the owners of the cargo. ‘It will be seen that there is an automatic transfer of the rights of the insured company to the third party upon the making of a winding up order in respect of the insured company. [The plaintiff] accepted that for the purposes of his argument before me the insurance . . . fell within the Act . . .’

Judges:

Megarry J

Citations:

[1973] Ch 75

Statutes:

Third Parties (Rights Against Insurers) Act 1930

Jurisdiction:

England and Wales

Cited by:

CitedFirst National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
Lists of cited by and citing cases may be incomplete.

Insurance, Jurisdiction

Updated: 06 May 2022; Ref: scu.198397

British Aerospace v Dee Howard: 1993

Where a contract contained an exclusive jurisdiction clause providing for a case to be tried in the UK, it was relevant that the circumstances which might now suggest a trial elsewhere were perfectly foreseeable at the time of the contract. The new circumstances had to point to some factor which could not have been foreseen on which they can rely for displacing the bargain which they made, ie that they would not object to the jurisdiction of the English court. In those circumstances, inconvenience for witnesses, location of documents, the timing of a trial, and all similar matters were aspects which they were precluded from raising.
The proper approach was to consider the proceedings as equivalent to proceedings commenced as of right, and therefore it was right to consider only the matters which would not have been foreseeable when the bargain was struck.

Judges:

Waller J

Citations:

[1993] 1 Lloyds Rep 368

Jurisdiction:

England and Wales

Cited by:

CitedBAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
Cited889457 Alberta Inc v Katanga Mining Ltd and others ComC 5-Nov-2008
The parties had set out on a joint venture with deeds providing for control of the shareholdings in each other. The claimant asserted a breach of the deed and sought a remedy. The first defendant company, incorporated in Bermuda argued that the . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Updated: 06 May 2022; Ref: scu.186476

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

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

Judges:

Diplock J

Citations:

[1957] RPC 252

Jurisdiction, Estoppel, Defamation, Damages

Updated: 06 May 2022; Ref: scu.509128

Cathcart v Cathcart: 1902

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

Judges:

Lord Low

Citations:

(1902) 12 SLT 182

Scotland, Jurisdiction, Land

Updated: 06 May 2022; Ref: scu.463719

Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others: HL 14 Jun 2006

The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception to state immunity.
Held: The Kingdom’s appeal succeeded. The protection of state immunity was essentially a procedural one. It was not a matter where the court had a choice, and the Court of Appeal had been wrong to take to itself any discretion. Torture cannot be justified by any rule of domestic or international law, but the question at issue was whether such a norm conflicts with a rule which accords state immunity: ‘The jus cogens is the prohibition on torture. But the United Kingdom, in according state immunity to the Kingdom, is not proposing to torture anyone. Nor is the Kingdom, in claiming immunity, justifying the use of torture. It is objecting in limine to the jurisdiction of the English court to decide whether it used torture or not.’
Part I of the 1978 Act was not disproportionate as inconsistent with a peremptory norm or ius cogens of international law and its application did not infringe the claimants’ rights under article 6 of the ECHR.
Lord Bingham said: ‘. . the claimants must show that the restriction is not directed to a legitimate objective and is disproportionate. They seek to do so by submitting that the grant of immunity to the Kingdom on behalf of itself or its servants would be inconsistent with a peremptory norm of international law, a jus cogens applicable erga omnes and superior in effect to other rules of international law, which requires that the practice of torture should be suppressed and the victims of torture compensated . . there is no evidence that states have recognised or given effect to an international law obligation to exercise universal jurisdiction over claims arising from alleged breaches of peremptory norms of international law, nor is there any consensus of judicial and learned opinion that they should. This is significant, since these are sources of international law. But this lack of evidence is not neutral: since the rule on immunity is well-understood and established, and no relevant exception is generally accepted, the rule prevails.’
Lord Hoffmann said: ‘But the same approach cannot be adopted in international law, which is based upon the common consent of nations. It is not for a national court to ‘develop’ international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states.’

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Carswell

Citations:

[2006] UKHL 26, [2007] 1 AC 270, [2007] 1 All ER 113, [2006] 2 WLR 1424

Links:

Bailii

Statutes:

State Immunity Act 1978, European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

CitedTwycross v Dreyfus CA 1877
State immunity is not to be got around by suing the employees of the state. Here, the only possible case was against the state itself.
Sir George Jessel MR said: ‘the municipal law of this country does not enable the tribunals of this country . .
CitedCompania Naviera Vascongado v Steamship ‘Cristina’ HL 1938
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to . .
CitedZoernsch v Waldock CA 1964
A claim was lodged against a former president as well as the current secretary of the European Commission of Human Rights. The former president, Sir Humphrey Waldock, was under the 1960 Order entitled to ‘the like immunity from legal process as is . .
CitedAIG Capital Partners Inc and Another v Kazakhstan ComC 20-Oct-2005
Aitkens J said as to the United Nations Convention on Jurisdictional Immunities of States and Their Property that it though not in force, and not ratified by the United Kingdom: ‘its existence and adoption by the UN after the long and careful work . .
Appeal fromJones 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 . .
CitedThe Owners of The Ship Philippine Admiral (Philippine Flag) v Wellem Shipping (Hong Kong) Limited and Another PC 5-Nov-1975
(Hong Kong) Sovereign immunity was denied to state trading ships, restricting the extent of state immunity. . .
CitedTrendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
CitedBouzari v Islamic Republic of Iran 2004
(Court of Appeal of Ontario) The court had to consider ‘between the condemnation of torture as an international crime against humanity and the principle that states must treat each other as equals not to be subjected to each other’s jurisdiction.’ . .
CitedPropend Finance Property Ltd and Others v Sing and Another CA 17-Apr-1997
Diplomatic immunity had not been waived by an Australian policeman acting in breach of a court undertaking re documents. The effect of s14(1) was to give state officials protection ‘under the same cloak’ as the state itself: ‘The protection afforded . .
CitedPlaya Larga (Owners of Cargo Lately Laden on Board) v I Congreso del Partido (Owners) QBD 1978
The trading or commercial activities of states are not protected by state immunity. The basic principle of international law is that all states are equal, the rule is ‘par in parem non habet imperium’. . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedArrest 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 . .
CitedMcElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
CitedPlaya Larga (Owners of Cargo Lately Laden on Board) v I Congresso del Partido (Owners) HL 1983
The concept of absolute immunity for a Sovereign adopts a theory of restrictive immunity in so far as it concerns the activities of a State engaging in trade: (Lord Wilberforce) ‘It was argued by the [appellants] that even if the Republic of Cuba . .
CitedHolland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
CitedRegina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
CitedProsecutor v Blaskic 1997
(Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia) The acts of state officials acting in that capacity are not attributable to them personally but only to the state: ‘Such officials are mere instruments of a state and . .
CitedAlcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .
CitedKalegoropoulou v Greece and Germany ECHR 12-Dec-2002
Greek nationals had sued the German government for damages for war crimes committed in 1944. Judgment was obtained, but the judgment could be enforced against German state property in Greece only with the consent of the Minister of Justice, which . .
CitedRegina 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 . .
CitedProsecutor v Furundzija 1-Apr-1999
(International Criminal Tribunal for the Former Yugoslavia) The court described the main features of the law against torture: ‘There exists today universal revulsion against torture: as a USA Court put it in Filartiga v. Pena-Irala, ‘the torturer . .
CitedRegina v Bartle and The Commissioner Of Police For The Metropolis and Others Ex Parte Pinochet Ugarte, Regina v Evans and Another and The Commissioner of Police For The Metropolis and Others (No 1) HL 22-Nov-1998
The government of Spain had issued an arrest warrant and application for extradition in respect of Pinochet Ugarte for his alleged crimes whilst president of Chile. He was arrested in England. He pleaded that he had immunity from prosecution.
CitedAl-Adsani v Government of Kuwait and Others (No 2) CA 29-Mar-1996
The claimant alleged that he had suffered torture in a security prison in Kuwait, and he obtained leave to serve out of the jurisdiction on the Government of Kuwait, and on three individuals, one of whom at least was served, on the ground that he . .
CitedHolland v Lampen-Wolfe CA 30-Jul-1998
A US citizen acting in course of employment as educational officer on US military base in the UK enjoyed state immunity from liability for defamation. This applied though he was a civilian and the State Immunity Act 1978 did not apply. . .

Cited by:

CitedAziz 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 . .
CitedMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
CitedSmith, 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.
CitedEquality and Human Rights Commission v Prime Minister and Others Admn 3-Oct-2011
The defendant had published a set of guidelines for intelligence officers called upon to detain and interrogate suspects. The defendant said that the guidelines could only be tested against individual real life cases, and that the court should not . .
CitedReyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
CitedA and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
CitedReyes 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: . .
CitedTaylor, Regina v SC 13-Nov-2019
(Redacted) The court was asked to consider the meaning of ‘torture’ from events in a rebellion in Liberia in 1990. The CACD certified the following point of law of general public importance: ‘What is the correct interpretation of the term ‘person . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Human Rights

Updated: 06 May 2022; Ref: scu.242521

Williams v Jones: 22 Jan 1845

An action of debt lies upon a judgment of a county court. And the declaration need not state that the defendant resided within the jurisdiction of the county court, or was liable to be summoned to that court for the debt ; it is enough to state that the plaintiff levied his plaint in the county court for a Cause of action arising within its jurisdiction.
Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained.

Judges:

Parke B

Citations:

[1845] EngR 394, (1845) 13 M and W 628, (1845) 153 ER 262

Links:

Commonlii

Cited by:

CitedRubin 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 . .
CitedAdams v Cape Industries plc CA 2-Jan-1990
Proper Use of Corporate Entity to Protect Owner
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 05 May 2022; Ref: scu.303536

In Re Mansergh: 11 Jun 1861

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

Citations:

[1861] EngR 711, (1861) 1 B and S 400, (1861) 121 ER 764

Links:

Commonlii

Armed Forces, Jurisdiction

Updated: 05 May 2022; Ref: scu.284472

Phillips and Another v Robin James Symes and Robin Symes Ltd: ChD 9 Jul 2001

English proceedings were issued to claim against a partnership. Simultaneously proceedings were issued in Greece, but the Greek proceedings were served on the London parties first. The plaintiffs in Greece asked the English court to issue a stay of the English proceedings, they having issued first in Greece. The stay was granted. There had been effective service on the claimants’ London offices. Part of the claim related to questions regarding a partnership. An ‘association of legal persons’ under the convention included an informal partnership under English law, and under 16(2) exclusive jurisdiction was granted to the UK courts for that single issue out of the others.

Judges:

The Hon Mr Justice Hart

Citations:

Gazette 06-Sep-2001, Times 02-Oct-2001, [2001] EWHC Ch 395

Links:

Bailii

Statutes:

Partnership Act 1890, Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters Art 16(2), 21, Civil Jurisdiction and Judgments Act 1982

Jurisdiction:

England and Wales

Cited by:

See AlsoPhillips, Harland (Administrators of the Estate of Michailidis), Papadimitriou; Symes (A Bankrupt), Robin Symes Limited (In Administrative Receivership), Domercq etc ChD 30-Jul-2004
Under the Ciivil Procedure Rules, experts have acquired greater responsibilities to the court. Those responsibilities transcend their perceived obligations to the parties whom they give evidence. . .
See AlsoPhillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq ChD 20-Oct-2004
Dr Z had given expert evidence in the principal proceedings. It was now said that that evidence had not been given in the proper way, and a remedy was now sought in costs.
Peter Smith J had held that: ‘It seems to me that in the administration . .
See AlsoPhillips v Symes CA 2003
Courts should be reluctant to exclude altogether evidence merely because it is written. If the purpose of the order sought was to trace assets it would be wrong to permit cross-examination which was designed to show that there had been a contempt of . .
See AlsoPhillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq etc ChD 20-Oct-2004
. .
See AlsoSymes v Phillips and others CA 6-May-2005
. .
See AlsoSymes v Phillips and others CA 19-May-2005
The applicant was in contempt of court. He successfully appealed a sentence of two years imprisonment, with the sentence being reduced to one year. Legally aided, he sought his costs from the claimant. The claimant replied that their part was only . .
See AlsoPhillips, Harland (Suing As Administrators of the Estate of Christo Michailidis) v Symes (A Bankrupt), Nussberger, Galerie Nefer Ag, Geoff Rowley ChD 19-Aug-2005
The court allowed the appellant’s application to dispense with service of a claim form under the rule. The High Court became seised of the matter as at 19 January 2005. Further directions were given. . .
See AlsoPhillips and others v Symes and others ChD 12-Jul-2006
. .
See AlsoPhillips and Another v Symes and Others (No 6) CA 19-May-2006
Proceedings were issued in England for service on the defendant in Switzerland, but because of an error by the Swiss Court were not properly served. Proceedings were then issued in Sitzerland, and seisin was claimed for the Swiss Court. The claimant . .
See AlsoPhillips and others v Symes and others ChD 16-Oct-2006
. .
See AlsoPhillips and Another v Symes and others HL 23-Jan-2008
Various parties had sought relief in the English courts and in Switzerland after an alleged fraud. There had been a mistake in service of the proceedings in England. The high court had dispensed with service an backdated the effect of the order to . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company

Updated: 05 May 2022; Ref: scu.159964

Twycross v Dreyfus: CA 1877

State immunity is not to be got around by suing the employees of the state. Here, the only possible case was against the state itself.
Sir George Jessel MR said: ‘the municipal law of this country does not enable the tribunals of this country to exercise any jurisdiction over foreign governments as such. Nor, so far as I am aware, is there any international tribunal which exercises any such jurisdiction. The result, therefore, is that these so-called bonds amount to nothing more than engagements of honour, binding, so far as engagements of honour can bind, the government which issues them, but are not contracts enforceable before the ordinary tribunals of any foreign government . . without the consent of the government of that country.’

Judges:

Sir George Jessel MR

Citations:

(1877) LR 5 Ch D 605

Jurisdiction:

England and Wales

Cited by:

CitedJones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
CitedNML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

International, Jurisdiction

Updated: 04 May 2022; Ref: scu.242889

Bata v Bata: CA 1948

The defendant wrote a circular letter in Zurich libelling the plaintiff, who was chairman of a company in England, but who personally lived in Ontario, Canada. That circular letter was addressed to the deputy manager and managing director of the company in England.
Held: A tort occurrs in the place where the last ingredient necessary to complete the tort happened. The publication of a defamation therefore occurs at the place where the statement is seen or received by another person: ‘It was the publication of the contents of a defamatory document to a third party which constituted the tort of libel and which alone justified the libelled party in issuing his Writ.’ The English court therefore had jurisdiction to hear the case as the libels were published to persons living in England.

Judges:

Scott, LJ

Citations:

[1948] WN 366, (1948) 92 Sol Jo 574

Citing:

CitedHebditch v MacIlwaine CA 1894
On the defence of common interest such as to establish qualified privilege: ‘The defendant cannot create a privilege for himself because of honest belief on his part that the person to whom he made a slanderous communication had an interest or duty . .

Cited by:

CitedShevill and Others v Presse Alliance SA HL 26-Jul-1996
A libel case against a French paper was rightly brought in UK despite the small (250 copies nationally and 5 in the plaintiff’s local area (Yorkshire)) circulation here. The Brussels Convention allows a claim for defamation in UK though the main . .
CitedKordowski v Hudson QBD 21-Oct-2011
The claimant alleged that the defendant, the chief executive of the Law Society had slandered him in a conversation with another senior lawyer. The claimant now sought summary judgment against the claimant, saying that the defence had no realistic . .
Lists of cited by and citing cases may be incomplete.

Defamation, Jurisdiction

Updated: 04 May 2022; Ref: scu.537073

Re MN (Recognition and Enforcement of Foreign Protective Measures): FD 2010

An elderly woman, MN, habitually resident in California, had been removed from there to Canada and thence to this country in circumstances which, it was said, involved a breach of the terms of Part 3 of an advance directive signed by her.
Held: Hedley J said: ‘It follows that, in my judgment, the question of authority to remove is the key in this case to the question of habitual residence. Habitual residence is an undefined term and in English authorities it is regarded as a question of fact to be determined in the individual circumstances of the case. It is well recognised in English law that the removal of a child from one jurisdiction to another by one parent without the consent of the other is wrongful and is not effective to change habitual residence . . It seems to me that the wrongful removal (in this case without authority under the directive whether because Part 3 is not engaged or the decision was not made in good faith) of an incapacitated adult should have the same consequence and should leave the courts of the country from which she was taken free to take protective measures. Thus in this case were the removal ‘wrongful’, I would hold that MN was habitually resident in California
If, however, the removal were a proper and lawful exercise of authority under the directive, different considerations arise. The position in April 2010 was that MN had been living with her niece in England and Wales on the basis that the niece was providing her with a permanent home. There is no evidence other than that MN is content and well cared for there and indeed may lose or even have lost any clear recollection of living on her own in California. In those circumstances it seems to me most probable that MN will have become habitually resident in England and Wales and this court will be required to accept and exercise a full welfare jurisdiction under the Act pursuant to para 7(1)(a) of Sch 3. Hence my view that authority to remove is the key consideration.’

Judges:

Hedley J

Citations:

[2010] EWHC 1926 (Fam), [2010] COPLR Con Vol 893

Cited by:

CitedJO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction) CoP 13-Dec-2013
Jurisdiction of the Court of Protection
PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Family

Updated: 04 May 2022; Ref: scu.525974

Parker v Schuller: CA 1901

The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the allegation was that the contract was broken by reason of a failure to deliver in Liverpool the goods that were the subject of the contract. Leave was given ex parte and upheld inter partes. The plaintiffs now conceded that the way that their claim had been advanced had been misconceived in that a CIF contract involves an obligation to deliver documents, not the goods to which the documents relate. The plaintiffs tried to persuade the Court to uphold the leave given to serve out on the basis of substituting for the original claim a claim for failure to deliver the relevant documents in Liverpool.
Held: Permission was refused. A L Smith MR said: ‘It was not until the case came into this Court that the plaintiff set up another cause of action. That could not be allowed.’
Collins LJ said: ‘an application for leave to issue a writ for service out of the jurisdiction ought to be made with great care and looked at strictly. If a material representation upon which the leave was obtained in the first instance turned out to be unfounded, the plaintiff ought not to be allowed . . to set up another and a distinct cause of action which was not before the Judge upon the original application. It was clear from the affidavit that the only case made on the original application was that the defendants were bound to deliver the goods in this country, and that there was a breach of that contract here, and upon that representation alone leave was originally granted to issue the writ and serve notice thereof abroad.’
Romer LJ said: ‘an application for leave to issue a writ for service out of the jurisdiction ought to be made with great care and looked at strictly. If a material representation upon which the leave was obtained in the first instance turned out to be unfounded, the plaintiff ought not to be allowed, when an application was made by the defendant to discharge the order for the issue of the writ and the service, to set up another and a distinct cause of action which was not before the judge upon the original application.’

Judges:

A L Smith MR, Collins, Romer LJJ

Citations:

(1901) 17 TLR 299

Cited by:

To be confined to its factsNML 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 . .
AppliedRe Jogia (A Bankrupt) 1988
Application was made for leave to serve proceedings out of the jurisdiction in a claim for money had and received in connection with payments made to the defendant after a receiving order.
Held: A plaintiff who has been given permission to . .
CitedMetall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 1990
There was a complicated commercial dispute involving allegations of conspiracy. A claim by the plaintiffs for inducing or procuring a breach of contract would have been statute-barred in New York.
Held: Slade LJ said: ‘The judge’s approach to . .
CitedAB v CD QBD 3-Jan-2014
The parties were contracted to each other in respect of an internet based marketing system for metals and other resources. The claimant had contracted in effect to promote the system. The claimant sought an injunction to prevent termination of . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 04 May 2022; Ref: scu.441563

Waterhouse v Reid: 1938

The court has no power to make orders against persons outside its territorial jurisdiction unless authorised by statute and that there is no inherent extra-territorial jurisdiction.

Judges:

Greer LJ

Citations:

[1938] 1 KB 743, [1938] 1 All ER 235

Cited by:

CitedNML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 04 May 2022; Ref: scu.441566

Beck v Value Capital Ltd (No 2): CA 1976

Citations:

[1976] 2 All ER 102, [1976] 1 WLR 572

Citing:

Appeal fromBeck v Value Capital Ltd (No 2) 1974
The plaintiffs had obtained leave to serve proceedings out of the jurisdiction. They then sought to add a claim and argued that once an additional cause of action was shown to be generically within the scope of Order 11, that was an end of the . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 04 May 2022; Ref: scu.441568

Kuwait Oil Tanker Company SAK and another v Bader and others: 17 Dec 1998

Judges:

Moore-Bick J

Citations:

Unreported, 17 December 1998

Jurisdiction:

England and Wales

Citing:

ApprovedMidland International Trade Services v Al Sudairy ChD 11-Apr-1990
The court had power to order the payment of interest on a judgment of a court in Saudi Arabia even though a Saudi court would have applied Sharia law. That law follows the teaching in the Koran forbidding the payment or receipt of interest. . .

Cited by:

CitedKnight v Axa Assurances QBD 24-Jul-2009
The claimant was injured in a car accident in France. The defendant insurer said that the quantification of damages was to be according to French law and the calculation of interest also. The claimant said that English law applied.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 02 May 2022; Ref: scu.375207

In re Seagull Manufacturing Co Ltd: ChD 1992

The court considered the power of an English court over a foreign resident under section 133.
Held: In contrast with the private examination provisions, on its true construction section 133 applies to those who are within the class of persons specified in subsection (1), namely those who have voluntarily participated in the affairs of the company, whether or not they are British subjects and whether or not they are within the jurisdiction at the relevant time, even though they cannot be served with the necessary summons within the jurisdiction of the English court.

Judges:

Mummery J

Citations:

[1992] Ch 128

Statutes:

Insolvency Act 1986 133(1)

Jurisdiction:

England and Wales

Cited by:

Appeal fromIn Re Seagull Manufacturing Co Ltd (In Liquidation); Tucker CA 22-Feb-1993
The court has jurisdiction to order the public examination of a company director in in a compulsory liquidation about the affairs of the company, even though he might not be within the jurisdiction. The court found no reasons of comity which would . .
CitedBilta (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, Jurisdiction

Updated: 02 May 2022; Ref: scu.372592

Holmes v Bangladesh Biman Corporation: HL 1989

Mr Holmes was killed when the defendant’s aircraft in which he was a passenger crashed on a domestic flight in Bangladesh. As a domestic flight, it was not international carriage. The proper law of the contract was undoubtedly Bangladeshi law. Under Bangladeshi law the plaintiff’s damages would have been limited to andpound;913. But Mr Holmes’s widow sued in the United Kingdom, relying on the 1967 Order and its application to ‘all carriage of persons . . performed by aircraft for reward.’ She argued these words included foreign domestic flights.
Held: The airline’s appeal succeeded. Lord Bridge asked what modes of transport were regulated by the Hague Rules and said: ‘In authorising the application of such rules, based on or adapted from the Hague Rules, to non-Convention carriage by air, what categories of such carriage may Parliament have reasonably had in contemplation as the proper subject matter of United Kingdom legislation?’
Lord Griffiths said: ‘I can see no reason why our Parliament should wish to legislate to provide for domestic air law in Bangladesh any more than it would wish to legislate on road traffic or railway safety in Bangladesh and I do not believe that it intended it to do so.’

Judges:

Lord Bridge, Lord Griffiths

Citations:

[1989] AC 1112, [1989] 1 All ER 852, [1989] 2 WLR 481

Jurisdiction:

England and Wales

Cited by:

CitedDisley v Levine (T/a Airtrak Levine Paragliding) CA 11-Jul-2001
The claimant sought damages from her instructor, after being injured as a passenger trainee pilot of a paraglider. He responded that she was out of time, since the regulations applied. His appeal was refused. The system of regulation did not mention . .
CitedLaroche v Spirit of Adventure (UK) Ltd CA 21-Jan-2009
Hot Air balloon was an aircraft: damages limited
The claimant was injured flying in the defendant’s hot air balloon. The defendant said that the journey was covered by the 1967 Regulations and the damages limited accordingly. The claimant appealed against a decision that the balloon was an . .
CitedMasri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.

Transport, Damages, Jurisdiction

Updated: 02 May 2022; Ref: scu.280079