Kuwait Oil Tanker Company SAK and others v UBS AG, Qabazard: HL 12 Jun 2003

Mr Qabazard conspired with others to defraud the Kuwait Oil Tanker Company SAK and Sitka Shipping Inc of large sums of money. On 16 November 1998 Moore-Bick J gave judgment against him for over US$130m. Historically sums had been placed with the defendant, and garnishee orders were sought.
Held: It is not correct to characterise the garnishee or third party debt order as a claim in personam made against the third party in England. It is enforcement of the judgment in rem against the debt, which in this case was situated in Switzerland. The garnishee order was discharged.

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough Lord Millett
[2003] UKHL 31, Times 13-Jun-2003, Gazette 17-Jul-2003, [2003] 3 All ER 501, [2004] 1 AC 300, [2003] ILPr 45, [2003] 2 All ER (Comm) 101, [2003] 1 CLC 1206, [2003] 3 WLR 14
House of Lords, Bailii
Civil Jurisdiction and Judgments Act 1982 3A
England and Wales
Citing:
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 . .
CitedDenilauler v SNC Couchet Freres (Judgment) ECJ 21-May-1980
The courts of the place or, in any event, of the Contracting State, where the assets subject to the measures sought are located, are those best able to assess the circumstances which may lead to the grant or refusal of the measures sought or to the . .
CitedAS-Autoteile Service GmbH v Pierre Malhe (Judgment) ECJ 4-Jul-1985
The particular areas which fall under Article 16, certain disputes regarding tenancies, companies, registers, industrial property and the enforcement of judgments, are matters which, because of their particular difficulty or complexity, require that . .
CitedBabanaft International Co SA v Bassatne CA 30-Jun-1988
The court considered whether the state in which enforcement of a judgment will take place should be the place where the debt is situated upon which it is sought to execute.
Held: There was nothing to preclude English courts from granting . .
CitedReichert and Kockler v Dresdner Bank ECJ 26-Mar-1992
The case concerned article 16(5) of the Brussels Convention, among other articles.
Held: It is necessary to take account of the fact that the essential purpose of the exclusive jurisdiction of the courts of the place in which the judgment has . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Banking

Updated: 05 December 2021; Ref: scu.183380

Lloyd v Google LLC: SC 10 Nov 2021

No damages for Loss of Control of Data

The respondent has issued a claim alleging that the appellant (‘Google’) has breached its duties as a data controller under the DPA to over 4m Apple iPhone users during a period of some months in 2011- 2012, when Google was able to collect and use their browser generated information. The respondent sued on his own behalf and on behalf of a class of other residents in England and Wales whose data was collected in this way. He applied for permission to serve the claim out of the jurisdiction. Google opposed the application on the grounds that (i) the pleaded facts did not disclose any basis for claiming compensation under the DPA and (ii) the court should not in any event permit the claim to continue as a representative action.
Whether the respondent should have been refused permission to serve his representative claim against the appellant out of the jurisdiction (i) because members of the class had not suffered ‘damage’ within the meaning of section 13 of the Data Protection Act 1998 (‘DPA’); and/or (ii) the respondent was not entitled to bring a representative claim because other members of the class did not have the ‘same interest’ in the claim and were not identifiable; and/or (iii) because the court should exercise its discretion to direct that the respondent should not act as a representative.

Lord Reed P, Lady Arden, Lord Sales, Lord Leggatt, Lord Burrows
UKSC 2019/0213, [2021] UKSC 50, [2021] 3 WLR 1268
Bailii, Pailii Press Summary, Bailii Issues and Facts
Data Protection Act 1998, Civil Procedure Rules 19.6
England and Wales

Information, Jurisdiction, Litigation Practice

Updated: 04 December 2021; Ref: scu.669785

OTP Bank Nyilvanosan MUKODO Reszvenytarsasag v Hochtief Solutions AG: ECJ 17 Oct 2013

ECJ Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Regulation (EC) No 44/2001 – Special jurisdiction – Article 5, paragraph 1 a) – Concept of ‘contractual matters

G. Arestis P
C-519/12, [2013] EUECJ C-519/12
Bailii

European, Jurisdiction

Updated: 03 December 2021; Ref: scu.526063

VTB Commodities Trading Dac v JSC Antipinsky Refinery and Others: ComC 4 Aug 2021

Cockerill J upheld the challenge to jurisdiction, finding that VTB could not properly be classified as a defendant in the relevant proceedings and that the Court did not have jurisdiction to permit it to bring Part 20 claims against Sberbank and Machinoimport.

Mrs Justice Cockerill DBE
[2021] EWHC 1758 (Comm)
Bailii, Judiciary
England and Wales

Jurisdiction

Updated: 29 November 2021; Ref: scu.667434

Vidal-Hall and Others v Google Inc: QBD 16 Jan 2014

The claimants alleged misuse of their private information in collecting information about their internet useage when using Google products. Google now applied for an order setting aside consent for service out of the jurisdiction.
Held: The judge dismissed the applications to set aside permission to serve the claim form out of the jurisdiction in respect of the claims for misuse of private information and under the DPA and granted declarations that the court had jurisdiction to try both claims. He concluded that the claimants had clearly established that this jurisdiction was the appropriate one in which to try both claims. He declared the court had no jurisdiction to try the claims for an injunction or the claims for breach of confidence, and the claim form and Particulars of Claim, in respect of those claims, were set aside: ‘(i) The Court was bound by the decision in Kitechnology BV v Unicor GmbH Plastmachinen [1995] FSR 765 to hold that breach of confidence was not a tort, but misuse of private information was a tort for the purposes of the rules governing service out of the jurisdiction. ‘damage’ in CPR PD 6B para 3.1(9) meant damage that was recoverable for the tort in question, and included damages for distress, recoverable in a claim for misuse of personal information. It followed that the claimants’ claims for misuse of private information fell within CPR PD 6B para 3.1(9)(a). In any event, the claim would have fallen within CPR PD 6B para 3.1(9)(b) because the damage resulted from an act committed within the jurisdiction, namely the publication of the advertisements on the claimants’ screens. Further the claimants had established that there were serious issues to be tried as to whether the relevant information was ‘private’ information:
(ii) The claimants were given permission to rely on CPR PD 6B para 3.1(9) in respect of the DPA claim. There is no appeal against that order. The judge held there were serious issues to be tried (a) that the claimants’ claims for compensation under section 13 of the DPA did not require proof of pecuniary loss; and therefore that there was a good arguable claim for compensation under that section; and (b) that the BGI constituted personal data for the purposes of the DPA claim;
(iii) the claimants had a real and substantial cause of action in their claims for misuse of private information and under the DPA, and it would not be just to set aside service on the grounds that ‘the game was not worth the candle’;
(iv) the claimants could not bring themselves within the ‘injunction’ gateway under CPR PD 6B para 3.1(2) and dismissed the claimants’ applications to rely on CPR PD 6B paras 3.1(11) and (16). In respect of the claim for an injunction, the defendant had stopped the conduct complained of by time the Particulars of Claim were served, and had destroyed the relevant data. The judge said the application to rely on CPR PD 6B para 3.1(11) and (16) raised difficult questions of law and had been made too late. The judge therefore declared the court had no jurisdiction to try the claims for an injunction or the claims for breach of confidence, and the claim form and Particulars of Claim, in respect of those claims were set aside. These decisions are not the subject of any appeal.

Tugendhat J
[2014] EWHC 13 (QB), [2014] WLR(D) 21, [2014] FSR 30, [2014] 1 WLR 4155, [2014] EMLR 14, [2014] 1 CLC 201
Bailii, WLRD
Data Protection Act 1998 4(4), Civil Procedure Rules 6.37
England and Wales
Citing:
CitedSpiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
CitedKitetechnology v Unicor GmbH Plastmaschinen 1995
It would not be correct to describe a infringement of breach of privacy as a tort. . .
CitedBacon v Automattic Inc QBD 2011
Tugendhat J set out the reasons why the existence of a jurisdiction to provide for service out of the jurisdiction, was previously considered doubtful but rightly considered that Cecil v Bayat has now settled the matter, because CPR 6.37(5)(b)(i) . .
CitedVestergaard Frandsen A/S and Others v Bestnet Europe Ltd and Others SC 22-May-2013
The claimant companies appealed against a reversal of their judgment against a former employee that she had misused their confidential trade secrets after leaving their employment. The companies manufactured and supplied bednets designed to prevent . .

Cited by:
Appeal fromGoogle Inc v Vidal-Hall and Others CA 27-Mar-2015
Damages for breach of Data Protection
The claimants sought damages alleging that Google had, without their consent, collected personal data about them, which was resold to advertisers. They used the Safari Internet browser on Apple products. The tracking and collation of the claimants’ . .
CitedNT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .

Lists of cited by and citing cases may be incomplete.

Information, Jurisdiction

Updated: 28 November 2021; Ref: scu.519957

Commerzbank (Judicial Cooperation In Civil Matters – Jurisdiction – Judgment): ECJ 30 Sep 2021

Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments – Civil and commercial matters – Lugano II Convention – Article 15(1)(c) – Jurisdiction over consumer contracts – Transfer of the consumer’s domicile to another State bound by the convention

C-296/20, [2021] EUECJ C-296/20
Bailii
European

Jurisdiction

Updated: 27 November 2021; Ref: scu.668511

Peter Pammer v Reederei Karl Schluter GmbH and Co KG etc: ECJ 7 Dec 2010

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

V. Skouris, P
[2010] EUECJ C-144/09, [2012] Bus LR 972, [2012] All ER (EC) 34, [2011] 2 All ER (Comm) 888, [2010] ECR I-12527
Bailii
Regulation (EC) No 44/2001 15(1)
Citing:
OpinionPeter Pammer v Reederei Karl Schluter GmbH and Co KG etc ECJ 18-May-2010
ECJ (Opinion) Regulation No 44/2001 – Article 15, paragraph 1 (c) and 3 – Jurisdiction over consumer contracts – Management of a business to a Member State where the consumer’s home – Accessibility of website – . .

Cited by:
Applied.Oak Leaf Conservatories Ltd v Weir and Another TCC 24-Oct-2013
The claimant conservatory installers claimed wrongful repudiation of the contract by the defendant householders. The defendants, living in Ayrshire, said that the English courts had no jurisdiction over the contract.
Held: The court gave its . .

Lists of cited by and citing cases may be incomplete.

European, Jurisdiction, Consumer

Updated: 25 November 2021; Ref: scu.517366

Re International Tin Council: ChD 1987

An order for the winding up of a foreign company operates universally, applies to all the foreign company’s assets and brings into play the full panoply of powers and duties under the Insolvency Act 1986 like any other winding up order. Millett J said: ‘The statutory trusts extend to [foreign] assets, and so does the statutory obligation to collect and realise them and to deal with their proceeds in accordance with the statutory scheme.’
The court said that it was to ask the question, ‘Could Parliament reasonably have intended that the International Tin Council should be subject to the winding-up process of the UK insolvency legislation?’
Millet J said of the nature of corporate insolvency: ‘Although a winding up in the country of incorporation will normally be given extra-territorial effect, a winding up elsewhere has only local operation. In the case of a foreign company, therefore, the fact that other countries, in accordance with their own rules of private international law, may not recognise our winding up order or the title of a liquidator appointed by our courts, necessarily imposes practical limitations on the consequences of the order. But in theory the effect of the order is world-wide. The statutory trusts which it brings into operation are imposed on all the company’s assets wherever situate, within and beyond the jurisdiction. Where the company is simultaneously being wound up in the country of its incorporation, the English court will naturally seek to avoid unnecessary conflict, and so far as possible to ensure that the English winding up is conducted as ancillary to the principal liquidation. In a proper case, it may authorise the liquidator to refrain from seeking to recover assets situate beyond the jurisdiction, thereby protecting him from any complaint that he has been derelict in his duty. But the statutory trusts extend to such assets, and so does the statutory obligation to collect and realise them and to deal with their proceeds in accordance with the statutory scheme.’

Millet J
[1987] Ch 419, [1987] 2 WLR 1229, [1987] 1 All ER 890
England and Wales
Citing:
See AlsoMaclaine Watson and Co Ltd v International Tin Council ChD 1987
Millett J said: ‘The ITC contend there is no jurisdiction to make such an order [an order for discovery of assets] in the absence of a Mareva injunction. It is, however, fallacious to reason from the fact that an order for discovery can be made as . .

Cited by:
Appeal fromRe International Tin Council CA 1989
Creditors sought to treat the International Tin Council as an ‘association’ for the purposes of a provision under the Companies Act 1985 allowing for unregistered companies to be wound up.
Held: The decision in Re a Company was binding. The . .
CitedHackney v Side By Side (Kids) Ltd QBD 14-Jul-2003
The defendant sought a stay of a warrant for possession. It had submitted to an order for possession by consent in return for a promise of alternative accomodation. They sought a stay under section 89, saying that the claimant had not complied with . .
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 . .
CitedMcGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
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.

Company, Insolvency, Jurisdiction

Updated: 19 November 2021; Ref: scu.185746

Irving and Another v Darbyshire and Others: Admn 29 Jul 2013

The parties had settled a defamation claim in the Isle of Man and sums were paid to the settle te action and costs. Before they were released, the Coroner in the Isle of Man issued Notices of Arrest to the solicitors holding the funds. The court was now asked whether the sums were held for the defendant or claimant.
Held: The clearly and distinctly more appropriate forum for the determination of this claim is the Isle of Man, and nor was it unjust to expect the climants to litigate the matter under Manx law. The request for an order of Forum non conveniens succeeded.

Turner J
[2013] EWHC 2301 (Admin)
Bailii
England and Wales

Jurisdiction

Updated: 17 November 2021; Ref: scu.513744

Cooper Tire and Rubber Company Europe Ltd and Others v Dow Deutschland Inc and Others: CA 23 Jul 2010

‘ (1) whether the English court has jurisdiction pursuant to Article 6(1) of EC Council Regulation 44/2001 to determine claims made by the victims of illegal cartel arrangements found by the European Commission to have been made by the Defendants and (2) whether, if so, the proceedings should be stayed pursuant to Article 28 of that Regulation (which we shall call ‘the Judgments Regulation’) because the proceedings are related to proceedings brought elsewhere within the EU. There is also a cross-appeal raising a distinct point about a stay.’

Longmore, Lloyd, Gross LJJ
[2010] EWCA Civ 864, [2010] Bus LR 1697, [2010] 2 CLC 104, [2011] CP Rep 1, [2010] UKCLR 1277
Bailii
England and Wales

Jurisdiction

Updated: 17 November 2021; Ref: scu.421037

Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F): PC 14 May 1987

Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a sufficient justification for the grant of injunctive relief. The mere fact that the English court refused a stay of English proceedings on the grounds of forum non conveniens did not itself justify the grant of an injunction to restrain foreign proceedings. In this case the defendant’s vexatious conduct was taken into account.
When an English court makes a restraining order, it is making an order which is addressed only to a party which is before it. The order is not directed against the foreign court. ‘An injunction will only be issued restraining a party who is amenable to the jurisdiction of the court, against whom an injunction will be an effective remedy’ The jurisdiction derives from ‘the basic principle of justice.’
Lord Goff set out the following test: ‘In the opinion of their Lordships, in a case such as the present where remedy for a particular wrong is available both in the English (or, as here, the Brunei) court and in a foreign court, the English or Brunei Court will, generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexatious or oppressive. This presupposes that, as a general rule, the English or Brunei Court must conclude that it provides the natural forum for the trial of the action; and further, since the Court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so. So the Court will not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him.’
Otherwise: SNI Aerospatiale v Lee

Keith of Kinkel, Griffiths, Mackay of Clashfern, Goff of Chieveley LL, Sir John Megaw
[1987] 1 AC 871, [1987] UKPC 12
Bailii
England and Wales
Cited by:
CitedNational Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
CitedTurner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
CitedFort Dodge Animal Health Ltd v Akzo Nobel Nv CA 27-Oct-1997
(Patents) ‘The United Kingdom courts have jurisdiction to prevent vexation and oppression by persons subject to their jurisdiction. In particular, the courts are entitled to prevent persons domiciled in this country from being submitted to vexatious . .
CitedAirbus Industrie G I E v Patel and Others HL 18-Mar-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
CitedAl-Bassam v Al-Bassam CA 1-Jul-2004
The claimant sought administration of her husband’s estate according to his domicile in England. The defendant claimed the estate under Islamic law, and that there had been no marriage, and that he had been domiciled in Saudi Arabia.
Held: The . .
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. . .
CitedHarms Offshore AHT Taurus Gmbh and Co KG v Bloom and Others CA 26-Jun-2009
The court had granted to the liquidators of a company a mandatory injunction requiring the appellant German companies to attempt to obtain the release of assets from attachment by the court in new York.
Held: The appeal was dismissed. The . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 14 November 2021; Ref: scu.443457

Rosler v Rottwinkel: ECJ 15 Jan 1985

roslet_rottwinkelECJ1985

ECJ 1. Article 16(1) of the Convention of 27 September 1968 applies to all lettings of immovable property, even for a short term, and even where they relate only to the use and occupation of a holiday home.
2. All disputes concerning the obligations of the landlord or of the tenant under a tenancy, in particular those concerning the existence of tenancies or the interpretation of the terms thereof,their duration, the giving up of possession to the landlord, the repairing of damage caused by the tenant or the recovery of rent and of incidental charges payable by the tenant, such as charges for the consumption of water , gas and electricity, fall within the exclusive jurisdiction conferred by article 16(1) of the convention on the courts of the state in which the property is situated. On the other hand, disputes which are only indirectly related to the use of the property let, such as those concerning the loss of holiday enjoyment and travel expenses, do not fall within that exclusive jurisdiction.

R-241/83, [1985] EUECJ R-241/83, [1986] QB 33
Bailii
Convention of 27 September 1968 On Jurisdiction And The Enforcement Of Judgments In Civil And Commercial Matters

European, Jurisdiction, Landlord and Tenant

Leading Case

Updated: 11 November 2021; Ref: scu.215282

Vizcaya 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 appeal was allowed. There was no basis in the evidence for the assertion that there was a contractual term that Vizcaya submitted to the New York jurisdiction. The jurisdiction agreement would be governed by New York law, and what disputes to which it is applicable would be a question of interpretation governed by the applicable law. But there was no evidence of any rules of interpretation under New York law which could lead the Gibraltar court to the conclusion that any implied submission under the clause would apply to avoidance proceedings.

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Collins
[2016] UKPC 5, [2016] Bus LR 413, [2016] WLR(D) 70
Bailii, WLRD
Foreign Judgments (Reciprocal Enforcement) Act 1933 4(2)
England and Wales
Citing:
CitedCopin 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 . .
CitedFeyerick 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 . .
CitedSchibsby v Westenholz CA 1980
The parties were both Danish, the plaintiffs resident in France and the defendants in London. The plaintiffs now sought to enforce a judgment obtained against the defendangt in France in default of their appearance. The defendants had no property in . .
CitedVallee And Others v Dumergue CExC 6-Jul-1849
A provision in the constitution of a company regulated proceedings against shareholders. The plaintiff liquidators sought enforcement in England of a French judgment against a shareholder for his contribution to the debts of the company. The . .
CitedThe 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 . .
CitedThe 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 . .
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 . .
CitedBlohn 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 . .
CitedVogel 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 . .
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 . .
CitedMattar and Saba v Public Trustee 1952
Alberta Appellate Division – The court denied enforcement of a Quebec judgment on promissory notes, and held that an agreement to submit to the jurisdiction of a foreign court is not to be implied from the fact that the defendant has entered into a . .
CitedSfeir 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 . .
CitedAdams v Cape Industries plc ChD 1990
The piercing of the veil argument was used to attempt to bring an English public company, which was the parent company of a group which included subsidiaries in the United States, within the jurisdiction of the courts of the United States. Where a . .
CitedJamieson 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 . .
CitedDunbee Ltd v Gilman and Co, (Australia) Pty Ltd 1968
New South Wales Court of Appeal -The court was asked to enforce an English default judgment. The judgment debtor had ‘agree[d] to submit to the jurisdiction’ of the English court by virtue of a contractual provision that the agreement was ‘governed . .
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 . .
CitedVita Food Products Inc v Unus Shipping Co Ltd PC 30-Jan-1939
(Nova Scotia) Goods were shipped from Newfoundland under a bill of lading which contained an exemption for loss caused by the servants of the carrier. This exemption was void by the law of Newfoundland, whose legislature had enacted the Hague Rules, . .
CitedLuxor (Eastbourne) v Cooper HL 1941
The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
CitedSA 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 . .
CitedKing v Brandywine Reinsurance Company CA 10-Mar-2005
Excess of Loss reinsurance. In the civil courts of England and Wales is that (with one obvious exception) expert evidence on the domestic law is inadmissible. . .
CitedEmmott v Michael Wilson and Partners Ltd CA 12-Mar-2008
The court considered the implication of the obligation of confidentiality in banking contracts or in arbitration agreements. It is ‘really a rule of substantive law masquerading as an implied term’. . .
CitedSociete Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
CitedMarks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
CitedAWB (Geneva) SA and Another v North America Steamships Ltd and Another CA 18-Jul-2007
A swap agreement provided that pursuant to the ISDA Master Agreement, the agreement was governed by English law and subject to the exclusive jurisdiction of the English courts. The trustee of one of the parties brought statutory avoidance . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other, Jurisdiction

Leading Case

Updated: 11 November 2021; Ref: scu.559694

The owners of the cargo lately laden on board the ship ‘Tatry’ v The owners of the ship ‘Maciej Rataj’: ECJ 6 Dec 1994

ECJ On a proper construction, Article 57 of the Brussels Convention on jurisdiction and the enforcement of judgments as amended means that, where a Contracting State is also a contracting party to another convention on a specific matter containing rules on jurisdiction, that specialized convention precludes the application of the provisions of the Brussels Convention only in cases governed by the specialized convention and not in those to which it does not apply. Where a specialized convention contains certain rules of jurisdiction but no provision as to lis pendens or related actions, Articles 21 and 22 of the Brussels Convention accordingly apply.
On a proper construction of Article 21 of the Convention, where it requires, as a condition of the obligation of the second court seised to decline jurisdiction, that the parties to the two actions be identical, that cannot depend on the procedural position of each of them in the two actions. Where some but not all of the parties to the second action are the same as the parties to the action commenced earlier in another Contracting State, that article requires the second court seised to decline jurisdiction only to the extent to which the parties to the proceedings before it are also parties to the action previously commenced; it does not prevent the proceedings from continuing between the other parties.
For the purposes of Article 21 of the Convention, the ’cause of action’ comprises the facts and the rule of law relied on as the basis of the action and the ‘object of the action’ means the end the action has in view. An action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action and the same object within the meaning of that article as earlier proceedings brought by that defendant seeking a declaration that he is not liable for that loss. A subsequent action does not cease to have the same cause of action and the same object and to be between the same parties as a previous action where the latter, brought by the owner of a ship before a court of a Contracting State, is an action in personam for a declaration that that owner is not liable for alleged damage to cargo transported by his ship, whereas the subsequent action has been brought by the owner of the cargo before a court of another Contracting State by way of an action in rem concerning an arrested ship, and has subsequently continued both in rem and in personam, or solely in personam, according to the distinctions drawn by the national law of that other Contracting State.
The concept of ‘related actions’ defined in the third paragraph of Article 22 of the Convention, which must be given an independent interpretation, must be interpreted broadly and, without its being necessary to consider the concept of irreconcilable judgments in Article 27(3) of the Convention, must cover all cases where there is a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive. It is accordingly sufficient, in order to establish the necessary relationship between, on the one hand, an action brought in a Contracting State by one group of cargo owners against a shipowner seeking damages for harm caused to part of the cargo carried in bulk under separate but identical contracts, and, on the other, an action in damages brought in another Contracting State against the same shipowner by the owners of another part of the cargo shipped under the same conditions and under contracts which are separate from but identical to those between the first group and the shipowner, that separate trial and judgment would involve the risk of conflicting decisions, without necessarily involving the risk of giving rise to mutually exclusive legal consequences.

Times 28-Dec-1994, C-406/92, [1994] EUECJ C-406/92, [1995] 1 Lloyd’s Rep 302, [1995] ILPr 81, [1999] QB 515, [1995] All ER (EC) 229, [1994] ECR I-5439, [1995] CLC 275, [1999] 2 WLR 181
Bailii
Brussels Convention 21 22
European
Cited by:
CitedSarrio Sa v Kuwait Investment Authority HL 17-Nov-1997
The parties were spanish companies. They were involved in proceedings against each other in Spain. The respondent had begun an action here for negligent misrepresentation against the appellant. The appellant argued that given the Spanish . .
CitedTelevision Autonomica Valenciana, Sa v Imagina Contenidos Audiovisuales, Sl ChD 8-Feb-2013
The defendant sought a stay of these proceedings pending the outcome of related proceedings in Spain. The claimant sought a declaration that a contract was terminated and damages for such breach. The Spanish proceedings were first in time.
CitedIn re The Alexandros T SC 6-Nov-2013
The parties had disputed insurance claims after the foundering of the Alexandros T. After allegations of misbehaviour by the underwriters, the parties had settled the claims in a Tomlin Order. Five years later, however, the shipowners began . .
CitedStarlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
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 . .
CitedWright v Granath QBD 16-Jan-2020
Defamation across borders – Jurisdiction
The claimant began an action for defamation in an online publication. The Norwegian resident defendant had begun an action there seeking a declaration negating liability. The Court was now asked by the defendant whether under Lugano, the UK action . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, European, Transport

Leading Case

Updated: 11 November 2021; Ref: scu.161021

Ceska Sporitelna As v Gerald Feichter: ECJ 20 Sep 2012

ceska_feighterECJ2012

ECJ Opinion – Jurisdiction – Matters relating to a contract – Contract concluded by a consumer – Manager of a company – Credit agreement entered into by the company – Promissory note issued in incomplete form – Aval – Place for performance of the obligation

Sharpston AG
C-419/11, [2012] EUECJ C-419/11, [2013] EUECJ C-419/11
Bailii, Bailii
Regulation No 44/2001

European, Jurisdiction, Contract, Consumer

Updated: 11 November 2021; Ref: scu.464420

Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada: HL 1986

Forum Non Conveniens Restated

The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the result, it seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge . . An appeal should be rare and the appellate court should be slow to interfere.’
Lord Goff of Chieveley said that despite the use of the Latin adjective conveniens the real question in these cases was, which was the more appropriate forum: ‘[It] is not merely that the burden of proof rests on the plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so.’ and a ‘defendant can apply to have service set aside on the ground that there is an alternative jurisdiction ‘in which the case may be tried more suitably for the interests of all the parties and for the ends of justice’
The burden is on the claimant to persuade the court that England is clearly the most appropriate forum for trial. ‘The key to the solution of this problem lies, in my judgment, in the underlying fundamental principle. We have to consider where the case may be tried ‘suitably for the interests of all the parties and for the ends of justice.’ Let me consider the application of that principle in relation to advantages which the plaintiff may derive from invoking the English jurisdiction. Typical examples are: damages awarded on a higher scale; a more complete procedure of discovery; a power to award interest; a more generous limitation period. Now, as a general rule, I do not think that the court should be deterred from granting a stay of proceedings . . simply because the plaintiff will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the available appropriate forum. Take, for example, discovery. We know that there is a spectrum of systems of discovery applicable in various jurisdictions . . No doubt each of these systems has its virtues and vices; but, generally speaking, I cannot see that, objectively, injustice can be said to have been done if a party is, in effect, compelled to accept one of these well-recognised systems applicable in the appropriate forum overseas . . Then take the scale on which damages are awarded. Suppose that two parties have been involved in a road accident in a foreign country, where both were resident, and where damages are awarded on a scale substantially lower than those awarded in this country. I do not think that an English court would, in ordinary circumstances, hesitate to stay proceedings brought by one of them against the other in this country merely because he would be deprived of a higher award of damages here. . . . But the underlying principle requires that regard must be had to the interests of all the parties and the ends of justice; and these considerations may lead to a different conclusion in other cases . . [T]ake the example of cases concerned with time bars . . Now, to take extreme examples, suppose that the plaintiff allowed the limitation period to elapse in the appropriate jurisdiction, and came here simply because he wanted to take advantage of a more generous time bar applicable in this country; or suppose that it was obvious that the plaintiff should have commenced proceedings in the appropriate jurisdiction, and yet he did not trouble to issue a protective writ there; in cases such as these, I cannot see that the court should hesitate to stay the proceedings in this country, even though the effect would be that the plaintiff’s claim would inevitably be defeated by a plea of the time bar in the appropriate jurisdiction. Indeed a strong theoretical argument can be advanced for the proposition that, if there is another clearly more appropriate forum for the trial of the action, a stay should generally be granted even though the plaintiff’s action would be time barred there. But, in my opinion, this is a case where practical justice should be done. And practical justice demands that, if the court considers that the plaintiff acted reasonably in commencing proceedings in this country, and that, although it appears that (putting on one side the time bar point) the appropriate forum for the trial of the action is elsewhere than England, the plaintiff did not act unreasonably in failing to commence proceedings . . in that jurisdiction within the limitation period applicable there, it would not, I think, be just to deprive the plaintiff of the benefit of having started proceedings within the limitation period applicable in this country . . ‘
Lord Templeman said: ‘I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Chieveley in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days. An appeal should be rare and the appellate court should be slow to interfere’.

Lord Templeman, Lord Goff of Chieveley
[1987] 1 AC 460, [1986] 3 All ER 843, [1986] 3 WLR 972, [1986] UKHL 10
Bailii
England and Wales
Citing:
CitedSim v Robinow 1892
The task of the court in deciding jurisdiction is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice: . .

Cited by:
CitedStaines v Walsh, Howard ChD 14-Mar-2003
The claimant sought an account from the defendant share broker for the proceeds of share transactions. The defendant said the matter should be tried in Hong Kong.
Held: The claimant must show a good arguable case. Here there was evidence to . .
CitedMukta Gokaldas Hindocha (widow of C S Gheewala) and Others v Mahesh Shamjibhal Juthabhai Gheewala and Others PC 20-Nov-2003
PC (Jersey) The defendant sought a stay of the action, arguing it should be heard in another jurisdiction. He wanted the estate to be administered in Kenya, a jurisdiction which would apply Hindu laws of . .
CitedTurner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
CitedTryg Baltic International (UK) Ltd v Boston Compania De Seguros Sa and others ComC 28-May-2004
Four defendants from Argentina sought to have set aside an order for them to be served, saying the appropriate jursidiction, if there was a triable issue, would be Argentina.
Held: The agreements were to be construed according to English Law. . .
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 . .
CitedDow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
CitedPt Pan Indonesia Bank Ltd Tbk v Marconi Communications International Ltd CA 27-Apr-2005
The parties disputed the jurisdiction of the English courts over a letter of credit. It foresaw payment here and in sterling, made by the English bank as against the appropriate documents. Authority had been given for service out of the . .
CitedLimit (No 3) Ltd and others v PDV Insurance Company CA 11-Apr-2005
There had been substantial oil leaks in Venezuela, which had been insured and then re-insured in London. Permission had been given to serve the defendant out of the jurisdiction, but that permission had been set aside. The claimant now appealed.
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 . .
CitedSawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
CitedIslamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
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 . .
CitedDellar v Zivy and others ChD 9-Oct-2007
Disappointed beneficiaries said they had been told that the deceased would leave certain shares to them. He did not do so, and they said the will had incorrectly interpreted his instructions. The defendants denied that the English court 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 . .
CitedBerezovsky v Forbes Inc and Michaels; Glouchkov v Same HL 16-May-2000
Plaintiffs who lived in Russia sought damages for defamation against an American magazine with a small distribution in England. Both plaintiffs had real connections with and reputations in England. A judgment in Russia would do nothing to repair the . .
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 . .
CitedPacific International Sports Clubs Ltd v Soccer Marketing International Ltd and Others ChD 24-Jul-2009
The parties disputed ownership of shares in the football club Dynamo Kiev. Claims were to be made under Ukrainian company law and in equity. The claimant (a company registered in Mauritius) sought to proceed here. The defendants (largely companies . .
CitedAgbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
CitedLubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
CitedAshby and Others v Birmingham City Council QBD 3-Mar-2011
The claimants appealed against the strike out of their claims for damages for breach of contract on imposing changes in employment contract and conditions. The County Court had accepted the Council’s arguments on the construction and application of . .
CitedBirmingham City Council v Abdulla and Others CA 29-Nov-2011
The Council appealed against an order dismissing its application for the claimants’ claims under equal pay legislation to be struck out for want of jurisdiction. The claims had been brought in the High Court rather than te hEmployment Tribunal, thus . .
CitedBirmingham City Council v Abdulla and Others SC 24-Oct-2012
Former employees wished to argue that they had been discriminated against whilst employed by the Council. Being out of time for Employment Tribunal Proceedings, they sought to bring their cases in the ordinary courts. The Council now appealed . .
CitedVTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
CitedNovus Aviation Ltd v Onur Air Tasimacilik As CA 27-Feb-2009
The defendant appealed against a refusal to set aside the grant of leave to serve outside the jurisdiction granted to the claimant. Neither party conducted and business in England, and the contract was made in Switzerland, but was expressed to be . .
CitedVidal-Hall and Others v Google Inc QBD 16-Jan-2014
The claimants alleged misuse of their private information in collecting information about their internet useage when using Google products. Google now applied for an order setting aside consent for service out of the jurisdiction.
Held: The . .
CitedAhuja v Politika Novine I Magazini Doo and Others QBD 23-Nov-2015
Action for misuse of private information and libel. Application to have set aside leave to serve out of the jurisdiction. The defendant published a newspaper in Serbian, in print in Serbia and online. Though in Serbian, the claimant said that online . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Torts – Other

Leading Case

Updated: 11 November 2021; Ref: scu.192613

Kleinwort Benson Limited v City of Glasgow District Council: HL 19 Jun 1997

Restitution when Contract Void ab initio

A claim for restitution of money paid under a contract which was void ab initio is not a claim in contract, nor tort, nor delict, it was justiciable only in the court of domicile. The Brussels Convention does not decide jurisdiction. ‘But it is clearly recognised that article 5 is in derogation from the basic principle of domicile in article 2 and that as a result the provisions of article 5 are to be construed restrictively.’ The House rejected the argument that a claim for unjust enrichment fell within Article 5(3) because, other than in exceptional circumstances, such a claim did not pre-suppose either a harmful event or a threatened wrong.

Lord Goff
Gazette 19-Nov-1997, Times 31-Oct-1997, [1997] UKHL 43, [1999] 1 AC 153, [1997] 4 All ER 641, [1997] 3 WLR 923
House of Lords, Bailii
Civil Jurisdiction and Judgments Act 1982, Brussels Convention 1968 5
England and Wales
Citing:
CitedKalfelis v Bankhaus Schroder, Munchmeyer, Hengst and Co and others ECJ 27-Sep-1988
kalfelisECJ1988
ECJ For Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to apply, a connection must exist between the various actions brought . .

Cited by:
CitedShahar v Tsitsekkos and others ChD 17-Nov-2004
The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
CitedCasio Computer Co Ltd v Sayo and others CA 11-Apr-2001
The court was asked whether a constructive trust claim based on dishonest assistance is a matter ‘relating to tort, delict or quasi delict’ for the purpose of Article 5(3) of the Brussels Convention?
Held: A constructive trust claim based upon . .
CitedGomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Leading Case

Updated: 11 November 2021; Ref: scu.135204

Rapisarda v Colladon (Irregular Divorces): FC 30 Sep 2014

The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.
Held: It had been asserted that the English court had jurisdiction to entertain the petition in accordance with the Council Regulation on the basis that the petitioner was habitually resident and had been resident in England and Wales. In all but one case there was in fact no reason to think there had been any UK residence. The English court was deceived; the English court was induced by fraud to accept that it had jurisdiction to entertain the petition. It was apparent that an Italian had been offering a service providing UK divorces to Italian nationals.
Petitions not having reached the stage of decree had now been dismissed. The decrees must be set aside as being void for fraud. In each case the underlying petition must be dismissed. This is not a matter of judicial discretion; it is the consequence which follows inexorably as a matter of law from the facts as I have found them. It made no difference if one or other or both of the parties have re-married or even had a child.
Sir James summarised the law: ‘i) perjury without more does not suffice to make a decree absolute void on the ground of fraud;
ii) perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud;
iii) a decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition;
iv) a decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.’

Sir James Munby P FD
[2014] EWFC 35, [2015] 1 FLR 597
Bailii
Domicile and Matrimonial Proceedings Act 1973 5(2), Council Regulation (EC) No 2201/2003, Matrimonial and Family Proceedings Act 1984, Family Procedure Rules 2010 7.5(1), Matrimonial Causes Act 1973 8
England and Wales
Citing:
CitedAli Ebrahim v Ali Ebrahim (Queen’s Proctor intervening) 1983
. .
CitedSheldon v Sheldon (The Queen’s Proctor Intervening) 28-Jan-1865
Practice. – Dismissal of Petition – No Evidence produced -The Queen’s Proctor intervened in a suit for dissolution in which the respondent did not appear, and alleged collusion and the petitioner’s adultery. No evidence being tendered in support of . .
EndorsedCrowden v Crowden (The King’s Proctor showing cause) 1906
The normal practice of the Queen’s Proctor is not to adduce evidence in support of the plea on intervening in a divorce petition, and there is no need for him to do so where there is no answer to the plea. . .
EndorsedClutterbuck v Clutterbuck and Reynolds (Queen’s Proctor showing cause) 1961
The court considered the proper practice where the Proctor intervened in a divorce petition, but no answer was received from the parties. . .
CitedWiseman v Wiseman 1953
A decree absolute of divorce which would otherwise be void, will still be void even though one of the parties has subsequently remarried and had a child. . .
CitedBater v Bater CA 1906
The judgment of a divorce court dissolving a marriage is a judgment in rem, conclusively established the new status of the parties to the suit. A decree obtained in a foreign country by false evidence or by collusion in regard to the matrimonial . .
CitedLazarus Estates Ltd v Beasley CA 1956
There was a privative clause in the 1954 Act. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the . .
CitedCallaghan v Hanson-Fox (Andrew) 1992
H sought to have set aside a decree absolute obtained on the petition of his now deceased wife on the ground of fraud, in that the petitioner had falsely sworn in her affidavit verifying the petition that the marriage had broken down irretrievably . .
CitedMoynihan v Moynihan (No 2) FD 1997
The Queen’s Proctor applied to have set aside a decree absolute of divorce obtained by fraud on the part of the petitioner, the by then deceased Lord Moynihan. The particulars set out in the petition were false in a number of material respects; the . .
CitedS v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
CitedMarinos v Marinos FD 3-Sep-2007
The court was asked as to points of both law and fact under Article 3 of Council Regulation (EC) No 2201/2203, commonly known as Brussels II (revised). The greek father and english mother and their children had lived in Greece and England. W began . .
CitedKearly v Kearly FD 2009
. .
CitedLeake v Goldsmith FD 8-May-2009
. .
CitedV v V FD 20-May-2011
The court was asked as to its jurisdiction to hear a divorce petition under the Regulation Brussels II Revised. . .
CitedTan v Choy CA 19-Mar-2014
This appeal concerns the fifth indent of Article 3(1)(a) of the Regulation, which provides that ‘[i]n matters relating to divorce . . jurisdiction shall lie with the courts of the Member State (a) in whose territory . . the applicant is habitually . .

Cited by:
CitedGrasso v Naik (Twenty-One Irregular Divorces) FD 8-Nov-2017
Deceit in address avoided divorce petitions
The Queen’s Proctor applied to have set aside as fraudulent 21 petitions for divorce. It was said that false addresses had been used in order to give the court the appearance that it had jurisdiction.
Held: The decrees obtained by fraud were . .

Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction, News

Updated: 11 November 2021; Ref: scu.537216

Folien Fischer Ag and Another v Ritrama Spa: ECJ 19 Apr 2012

folien_ritramaECJ2012

ECJ (Opinion) Jurisdiction in civil and commercial matters – Interpretation of Article 5(3) of Regulation (EC) No 44/2001 – Special grounds of jurisdiction – Matters relating to tort, delict or quasi-delict – Meaning – Action for a negative declaration (negative Feststellungsklage) – Right of a potential injuring party to sue the party potentially injured in the courts for the place where the harmful event occurred or may occur in order to obtain a declaration as to the non-existence of liability in tort.

Askinen AG
C-133/11, [2012] EUECJ C-133/11
Bailii
Regulation (EC) No 44/2001 5(3)
Cited by:
OpinionFolien Fischer AG and another v Ritrama SpA ECJ 25-Oct-2012
ECJ Area of freedom, security and justice – Jurisdiction in civil and commercial matters – Special jurisdiction in tort, delict or quasi-delict – Action for a negative declaration (‘negative Feststellungsklage’) . .

Lists of cited by and citing cases may be incomplete.

European, Jurisdiction

Updated: 11 November 2021; Ref: scu.460413

Apostolides v Orams and Others: CA 19 Jan 2010

The claimant had obtained an order in the Nicosia in the Republic of Cyprus and sought to enforce it in the UK court. The High court declined, and it was referred to the ECJ which in turn found that it could be registered. The defendant now challenged that decision saying that the court’s presiding judge had been Greek, and had associated with the President of the Republic of Cyprus which was not recognised, and that therefore the court was biased against him.
Held: The order should be registered for enforcement. There was a need to support the international public policy promoting peace in Cyprus, and no rule of public policy against recognising judgements of its courts. There was no appearance of bias either in the nationality of the judge or in the company he kept, particularly given the circumstances of the meeting.

Lord Justice Pill, Lord Justice Lloyd and Sir Paul Kennedy
[2010] EWCA Civ 9, [2010] 1 All ER (Comm) 992, [2011] QB 519, [2011] 2 WLR 324, [2010] Eu LR 435, [2010] 4 EG 112, [2010] ILPr 20
Bailii, Times
Council Regulation (EC) 44/2001 of December 22, 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
England and Wales
Citing:
Appeal FromOrams and Another v Apostolides QBD 6-Sep-2006
The court was asked whether an English court can recognise and enforce an order of the court of the Turkish Republic of Northern Cyprus.
Held: Judgements of the courts of the Turkish Republic of Northern Cyprus were not enforceable in England. . .
At ECJApostolides v Orams and Orams (Area Of Freedom, Security and Justice) ECJ 18-Dec-2008
Europa Regulation (EC) No 44/2001 Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Application of the regulation to a judgment concerning land situated in an area of . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, European

Updated: 11 November 2021; Ref: scu.393376

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

Developing Law – Summary Procedures Very Limited

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

Lord Phillips, Lord Mance, Lord Collins, Lord Kerr, Lord Dyson
[2011] UKPC 7, [2012] 1 All ER (Comm) 319, [2011] 1 CLC 205, [2012] 1 WLR 1804, [2011] 4 All ER 1027
Bailii
England and Wales
Cited by:
CitedNML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
CitedVTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
CitedAbela and Others v Baadarani SC 26-Jun-2013
The claimants sought damages alleging fraud in a company share purchase. They said that their lawyer had secretly been working for the sellers. The claim form had been issued, but the claimant had delayed in requesting permission for its service . .
AppliedWilliams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
CitedWilliams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
CitedGoogle Inc v Vidal-Hall and Others CA 27-Mar-2015
Damages for breach of Data Protection
The claimants sought damages alleging that Google had, without their consent, collected personal data about them, which was resold to advertisers. They used the Safari Internet browser on Apple products. The tracking and collation of the claimants’ . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
CitedFour Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .
AppliedAhuja v Politika Novine I Magazini Doo and Others QBD 23-Nov-2015
Action for misuse of private information and libel. Application to have set aside leave to serve out of the jurisdiction. The defendant published a newspaper in Serbian, in print in Serbia and online. Though in Serbian, the claimant said that online . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.430511

Masri v Consolidated Contractors International Company Sal and Another (No 3): CA 6 Jun 2008

The court was asked whether the English court has jurisdiction following judgment to grant an anti-suit injunction against foreign judgment debtors (one of whom has a domicile in a Brussels I Regulation State) restraining them from pursuing proceedings abroad seeking to re-litigate matters which have been decided by the English court.
Held: The defendant’s appeal failed. The court had an ancillary power to grant such an injunction. Subject to the requirements of international comity, an English court can take a discretionary power over someone within its in personam jurisdiction to make ancillary orders in protection of its jurisdiction and its processes, including the integrity of its judgments. The defendant had submitted to the jurisdiction of the English Court, and the anti-suit injunction was available and appropriate to protect the integrity of its judgments.

Sir Anthony Clarke, Master of the Rolls, Lord Justice Longmore and Lord Justice Lawrence Collins
[2008] EWCA Civ 625, Times 25-Jun-2008, [2008] 2 Lloyd’s Rep 301, [2008] ILPr 48, [2008] 1 CLC 887, [2009] Bus LR 216, [2008] 2 All ER (Comm) 1146, [2009] 2 WLR 669, [2008] BLR 391, [2009] QB 503
Bailii
England and Wales
Citing:
See AlsoMasri v Consolidated Contractors International Company Sal and Another CA 4-Apr-2008
The court was asked whether the Commercial Court had international jurisdiction to make an order for the appointment of a receiver by way of equitable execution, and a freezing order, in relation to the judgment debtors’ interest in the concession . .
Appeal fromMasri v Consolidated Contractors International Company Sal and Another ComC 23-May-2008
Application for interpretation of a receivership order. . .
See AlsoMasri v Consolidated Contractors International (UK) Ltd ComC 17-May-2005
. .
See AlsoMasri v Consolidated Contractors International (UK) Ltd CA 24-Oct-2005
The defendants who were resident in Greece appealed a decision that the English court had jurisdiction over them, by virtue of a close connection of the matter with earlier proceedings heard here.
Held: The fact that the defendants were all . .
See AlsoMasri v Consolidated Contractors International UK Ltd and Another ComC 28-Jul-2006
. .
See AlsoMasri v Consolidated Contractors International (UK) Ltd and others ComC 25-May-2007
Application for an order to prevent some defendants pursuing action in other jurisdictions. . .
CitedMasri v Consolidated Contractors International Company Sal and Another CA 11-Jul-2007
. .
See AlsoMasri v Consolidated Contractors International UK Ltd and Another ComC 14-Mar-2007
Judgment on quantum. . .
See AlsoMasri v Consolidated Contractors International Company Sal and Another ComC 20-Dec-2007
. .

Cited by:
See AlsoMasri v Consolidated Contractors International Company Sal and others CA 28-Jul-2008
The judgment creditor appealed an order refusing to oblige the defendant company to attend court and provide information about its means. . .
See AlsoMasri v Consolidated Contractors International (UK) Ltd and Another ComC 17-Jun-2008
Application for further order of payment of costs of action on account. . .
See AlsoMasri v Consolidated Contractors International Company Sal and Another ComC 21-Oct-2008
The court heard matters relating to the recovery by the claimant of $63,000,000. . .
See AlsoMasri 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 . .
See AlsoMasri v Consolidated Contractors (Oil and Gas) Company Sal CA 6-Feb-2009
Appeal from order with regard to management of receivership. . .
See AlsoMasri v Consolidated Contractors International Co Sal and others CA 13-Nov-2008
The creditors sought leave to appeal against orders made in the course of proceedings to recover a very substantial debt from a foreign resident company. . .
See AlsoMasri v Consolidated Contractors International Company Sal and Others ComC 6-Oct-2010
The third respondent sought to strike out an application for his committal for failure to comply with orders made in support of proceedings to enforce a substantial judgment. . .
See AlsoMasri v Consolidated Contractors International Company Sal ComC 21-Oct-2010
The court held a case management conference with regard to an intended application for committal for contempt of one of the defendants. . .
See AlsoConsolidated Contractors International Company Sal and Another v Masri CA 21-Jan-2011
. .
See AlsoConsolidated Contractors International Company Sal and Another v Masri CA 3-Feb-2011
. .
See AlsoMasri and Another v Consolidated Contractors International Co Sal and Others ComC 3-Mar-2011
On notice hearing with regard to without notice receivership order. . .
See AlsoMasri v Consolidated Contractors International Company Sal and Others ComC 5-May-2011
The applicant, and judgment creditor sought orders for committal for contempt by the defendant companies and officers after failing to comply with court orders. . .
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: 10 November 2021; Ref: scu.268766

Nussberger and Another v Phillips and Another (No 4): CA 19 May 2006

A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking had been in error. After proceedings were then issued in Switzerland, an appplication was now made to dispense with service of document marked in error.
Held: The procedure of dispensing with service of a document was not to be used to manipulate the priorities as between court as to who should be seised of the proceedings. The application was refused.

Mr Justice Wilson Lord Justice Pill Lord Justice Neuberger
[2006] EWCA Civ 654, Times 17-Jul-2006, [2006] 1 WLR 2598, Gazette 08-Jun-2006
Bailii
Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988, Civil Procedure Rules 6.9, Civil Jurisdiction and Judgments Act 1982
England and Wales
Citing:
Appeal fromPhillips, 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
. .
CitedSiegfried 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 . .
CitedDresser UK v Falcongate Freight Management Ltd; The Duke of Yare CA 1992
In England the court was first seised of a matter at the point when the proceedings were served, not when they were issued. Article 21 was metaphorically described as a ‘tie-break rule’ which operates on the basis of strict chronological . .
CitedNeste Chemicals SA and Others v DK Line Sa and Another (‘The Sargasso’) CA 4-Apr-1994
An English Court becomes seised of a case on the service of the writ. Steyn LJ: ‘the general thrust of the Dresser UK Ltd case is not only binding on us but . . . is correct’. There were no ‘exceptions to the rule that date of service marks the time . .
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 . .
CitedKnauf UK GmbH v British Gypsum Ltd and Another CA 24-Oct-2001
Permission was sought to use alternative service to serve proceedings on a company. There was no exceptional difficulty in ordinary service, but the claimant wanted to ensure that a claim was heard within the UK jurisdiction, and expected that he . .
CitedAnderton v Clwyd County Council (No 2); Bryant v Pech and Another Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd CA 3-Jul-2002
In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act . .
CitedWilkey and Another v British Broadcasting Corporation and Another CA 22-Oct-2002
The applicant’s claim had been dismissed for late service. The defendant had in fact received the documents, but the service appeared deemed to be out of time. The subsequent decisions of Anderton and Godwin meant that the judge’s reasoning no . .
CitedCranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to . .
CitedMolins Plc v G D Spa CA 29-Mar-2000
In a case where the national court which would deal with a matter was the court first seised of the matter, a stay could only be awarded where the proceedings until the proceedings were definitively pending in that court. Documents could be served . .
CitedTavoulareas v Tsavliris CA 5-Feb-2004
The court held that Greek proceedings required service for the purposes of establishing seisin, and therefore priority of jurisdiction. Mance LJ said: ‘Professor Antapassis says that, as a matter of Greek domestic law, the effect of art. 221 is that . .
CitedGrupo Torras Sa and Another v Sheikh Fahad Mohammed Al Sabah and Others CA 26-May-1995
A UK court may continue to hear a Spanish company’s claim against it’s own directors if a court was first seized of the matter here. Where a case concerned matters as to the constitution of a company, the courts of the company in which the company . .
CitedBasil Shiblaq v Kahraman Sadikoglu (No 2) ComC 30-Jul-2004
The court considered whether there had been effective service of proceedings on defendants in Turkey. Evidence was given as to the effectiveness of such service in Turkish law.
Held: The defendant’s application to set aside the judgment in . .
CitedErich Gasser GmbH v MISAT Srl ECJ 9-Dec-2003
The claimant Austrian company had for many years sold goods to the defendant an Italian company. Eventually it presented a claim before the court in Italy. Having obtained judgement, it later sought to enforce the order through the Austrian court . .
CitedTurner v Grovit ECJ 27-Apr-2004
The claimant had been employed as a solicitor by the respondent at locations across Europe, and came to claim in England that they had wrongly implicated him in unlawful activity. The company sought to issue proceedings in Spain.
Held: The . .
CitedOwusu v Jackson ECJ 1-Mar-2005
ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State . .
DistinguishedGolden Ocean Assurance Ltd v Martin (‘The Goldean Mariner’) CA 1990
Various defendants were served out of the jurisdiction but with the wrong copies of the writs, receiving a copy addressed to another defendant. One defendant received no writ at all, but only a form of acknowledgment of service.
Held: The . .
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 . .

Cited by:
Appeal fromPhillips 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

Leading Case

Updated: 10 November 2021; Ref: scu.242148

Cordoba Shipping Co Ltd v National State Bank, Elizabeth, New Jersey (The Albaforth): CA 1984

A negligent misrepresentation was made in a telex sent from the United States but received and acted upon in England. The judge had set aside leave to serve the document out of the jurisdiction.
Held: The appeal succeeded. The transmission was a tort committed within the jurisdiction within the meaning of Order 11 rule 1(1)(h).
Robert Goff LJ said: ‘If the substance of the alleged tort is committed within a certain jurisdiction, it is not easy to imagine what other fact could displace the conclusion that the courts of that jurisdiction are the natural forum’ and
”Now it follows from those decisions that, where it is held that a Court has jurisdiction on the basis that an alleged tort has been committed within the jurisdiction of the Court, the test which has been satisfied in order to reach that conclusion is one founded on the basis that the Court, so having jurisdiction, is the most appropriate Court to try the claim, where it is manifestly just and reasonable that the defendant should answer for his wrongdoing. This being so, it must usually be difficult in any particular case to resist the conclusion that a Court which has jurisdiction on that basis must also be the natural forum for the trial of the action. If the substance of an alleged tort is committed within a certain jurisdiction, it is not easy to imagine what other facts could displace the conclusion that the courts of that jurisdiction are the natural forum.’
Ackner LJ said: ‘the jurisdiction in which a tort has been committed is prima facie the natural forum for the determination of the dispute. England is thus the natural forum for the resolution of this dispute.’

Ackner LJ, Robert Goff LJ
[1984] 2 Lloyd’s LR 91
England and Wales
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 . .
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 . .
CitedBatey v Todd Engineering (Staffs) Ltd QBNI 7-Mar-1998
. .
CitedBase Metal Trading Ltd v Shamurin ComC 21-Nov-2001
. .
CitedDouglas, Zeta-Jones, Northern and Shell Plc v Hello! Ltd, Hola Sa, Junco, The Marquesa De Varela, Neneta Overseas Ltd, Ramey ChD 27-Jan-2003
The claimants sought an order striking out the defendants’ defence on the grounds that, by destroying documents, the possibility of a fair trial had been prejudiced.
Held: Refusing the order, save as to certain paragraphs of the defence, the . .
CitedBase Metal Trading Ltd v Shamurin ComC 22-Oct-2003
. .
CitedBase Metal Trading Ltd v Shamurin CA 14-Oct-2004
The claimant sought damages from what were said to be speculative trades carried out by the defendant whilst working in Russia. The claims were in both equity and in tort. He was a director of the company which was incorporated in Guernsey.
CitedBerezovsky v Forbes Inc and Michaels; Glouchkov v Same HL 16-May-2000
Plaintiffs who lived in Russia sought damages for defamation against an American magazine with a small distribution in England. Both plaintiffs had real connections with and reputations in England. A judgment in Russia would do nothing to repair the . .
CitedVTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
CitedVTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Jurisdiction

Leading Case

Updated: 10 November 2021; Ref: scu.220026

Canada 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 at the issue of the writ. The defendant appealed.
Held: Where one defendant was domiciled in the UK at the time of the issue of a writ it was permissible at the same time to issue proceedings against other defendants who were not domiciled here, even if that the defendant upon whose domicile the action was founded subsequently abandoned or lost that domicile. The date in question was not the date on which the writ was served, particularly upon other defendants. The words ‘sued’, and ‘issued proceedings’, and began proceedings were used interchangeably in the Convention.
The standard of proof which the Claimants have to achieve is that of ‘good arguable case’

Lord Steyn Lord Hoffmann Lord Cooke of Thorndon Lord Hope of Craighead Lord Hobhouse of Woodborough
Times 17-Oct-2000, Gazette 02-Nov-2000, [2000] UKHL 51, [2000] 4 All ER 481, [2000] 3 WLR 1376, [2002] 1 AC 1, [2001] CLC 118, [2001] IL Pr 40
House of Lords, House of Lords, House of Lords, Bailii
Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988 Art 6, Civil Jurisdiction and Judgments Act 1982
England and Wales
Citing:
Appeal fromCanada 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. . .
CitedSiegfried 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 . .
CitedMolnlycke AB v Proctor and Gamble Ltd 1992
The court considered the patentability of a baby’s disposable diaper. . .
CitedDresser UK v Falcongate Freight Management Ltd; The Duke of Yare CA 1992
In England the court was first seised of a matter at the point when the proceedings were served, not when they were issued. Article 21 was metaphorically described as a ‘tie-break rule’ which operates on the basis of strict chronological . .
CitedArab Monetary Fund v Hashim and Others (No 4) CA 9-Sep-1992
A Court had jurisdiction to order the consolidation of actions even before their respective writs had been served. It became a ‘pending’ action under the Order on issue of the originating process. . .
CitedGrupo Torras Sa and Another v Sheikh Fahad Mohammed Al Sabah and Others CA 26-May-1995
A UK court may continue to hear a Spanish company’s claim against it’s own directors if a court was first seized of the matter here. Where a case concerned matters as to the constitution of a company, the courts of the company in which the company . .
CitedNeste Chemicals SA and Others v DK Line Sa and Another (‘The Sargasso’) CA 4-Apr-1994
An English Court becomes seised of a case on the service of the writ. Steyn LJ: ‘the general thrust of the Dresser UK Ltd case is not only binding on us but . . . is correct’. There were no ‘exceptions to the rule that date of service marks the time . .
CitedShearson Lehman Hutton v Fur Vermogenswaltung and Betechigungen (TVB) mbH ECJ 19-Jan-1993
ECJ Convention on Jurisdiction and the Enforcement of Judgments – Jurisdiction in proceedings concerning contracts concluded by consumers – Concept of ‘consumer’ – Plaintiff acting in pursuance of his trade or . .
CitedSeaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran HL 15-Oct-1993
A plaintiff must show that there is a ‘serious issue for trial’ to support and justify an application for overseas service. The standard of proof in respect of the cause of action relied on is whether, on the evidence, there was a serious question . .
CitedMulox IBC v Hendrick Geels ECJ 13-Jul-1993
ECJ The terms used in the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted autonomously. Only such an interpretation is capable . .
CitedPS Refson and Co Ltd v Saggers CA 1984
Though interlocutory relief may be granted before issue of a writ, it is always upon an undertaking to issue one. . .
See alsoCanada 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. . .

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 . .
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 . .
CitedSawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
CitedNussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
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 . .
MentionedVarsani v Relfo Ltd CA 27-May-2010
The defendant appealed against refusal of a declaration that the court had no jurisdiction to hear the claim. He said that he lived in Kenya, and the claimant had failed first to apply for leave to serve out of the jurisdiction. The claimant had . .
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 . .
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 . .
CitedFour Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Jurisdiction

Leading Case

Updated: 10 November 2021; Ref: scu.159085

Harms Offshore AHT Taurus Gmbh and Co KG v Bloom and Others: CA 26 Jun 2009

The court had granted to the liquidators of a company a mandatory injunction requiring the appellant German companies to attempt to obtain the release of assets from attachment by the court in new York.
Held: The appeal was dismissed. The statutory prohibition against creditors bringing proceedings against a company being wound up by the court is not extra-territorial. The protection of the assets of a company in administration is not to be regarded by the Court as differing in substance from the protection of the assets of a company in compulsory liquidation. In both cases, the assets of the company are dealt with by an officer appointed by the Court in accordance with statutory duties.
The conduct of the Appellants and the circumstances of the attachments brought it into the exceptional category in which the grant of injunctive relief is justified, notwithstanding comity and notwithstanding the outstanding application of the Administrators in New York.

Lord Justice Ward, Lord Justice Stanley Burnton and Sir John Chadwick
[2009] EWCA Civ 632, Times 10-Jul-2009, [2009] Bus LR 1663, [2010] 1 Ch 187, [2010] 2 WLR 349
Bailii
Insolvency Act 1986
England and Wales
Citing:
CitedIn Re Oriental Inland Steam Company ex parte Scinde Railway Company CA 1874
The liquidator obtained an order requiring a creditor who had attached assets in India to return them to the company in liquidation.
Sir W M James LJ said: ‘The winding-up is necessarily confined to this country. It is not immaterial to . .
CitedMitchell v Carter ChD 1997
Section 183 of the 1986 Act, which precludes a creditor who levies execution or attaches a debt after commencement of a winding up, from retaining the benefit of his execution or attachment, does not apply to executions or attachments in foreign . .
CitedRe Vocalion (Foreign) Ltd 1932
The section only applies only to proceedings pending in the UK, and not to proceedings in a foreign Court. The Court has an equitable jurisdiction in personam to restrain a respondent properly served in this country from proceeding with an action . .
CitedSociete Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
CitedPolly Peck International Plc v The Marangos Hotel Company Ltd and Others CA 7-May-1998
Leave had been given for the insolvent plaintiff company to bring proceedings. The defendant now challenged that leave.
Held: A claim that a massively insolvent company had wrongfully occupied Turkish Cypriot property would not allow a claim . .
CitedBarclays Bank v Homan CA 1993
If the conduct of a creditor can be castigated as oppressive or vexatious the Court can and should grant relief in order to protect the performance by administrators of their functions and duties. . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Insolvency

Leading Case

Updated: 09 November 2021; Ref: scu.347220

Blohn 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 register in Vienna.
Held: The claim against her failed. Although the defendant, as a partner in the firm, must be regarded as having carried on business in Vienna through an agent resident there and that, having permitted those matters to be notified to persons dealing with the firm by registration in a public register, she had impliedly agreed with those persons to submit to the jurisdiction of the court of Vienna, and that, therefore, the English courts would recognise the judgment, in this case, the judgment against the partnership firm was not enforceable against the defendant as either it was not a judgment against her personally or, if it was, by reason of the defences which would be available to her in Vienna it was not a final and conclusive judgment.
Diplock J said that it was ‘clear law that the contract . . to submit to the forum in which the judgment was obtained, may be express or implied’ and ‘It seems to me that, where a person becomes a partner in a foreign firm with a place of business within the jurisdiction of a foreign court, and appoints an agent resident in that jurisdiction to conduct business on behalf of the partnership at that place of business, and causes or permits, as in the present case, these matters to be notified to persons dealing with that firm by registration in a public register, he does impliedly agree with all persons to whom such a notification is made – that is to say, the public – to submit to the jurisdiction of the court of the country in which the business is carried on in respect of transactions conducted at that place of business by that agent.’

Diplock J
[1962] 2 QB 116
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 . .
DisapprovedVogel 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 . .
Wrongly decidedAdams v Cape Industries plc ChD 1990
The piercing of the veil argument was used to attempt to bring an English public company, which was the parent company of a group which included subsidiaries in the United States, within the jurisdiction of the courts of the United States. Where a . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.565112

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

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

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

Lists of cited by and citing cases may be incomplete.

Insolvency, Jurisdiction

Leading Case

Updated: 09 November 2021; Ref: scu.457573

Lucasfilm Ltd and Others v Ainsworth and Another: SC 27 Jul 2011

The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment against the respondent in the US for punitive damages, but these had not been collected, and the courts below had declared then unenforceable here.
Held: The judgment as to the applicability of English copyright below was upheld insofar as the helmets were not sculptures. It would be inappropriate to stray too far from what would normally be regarded as a sculpture. Not every three dimensional representation of a concept qualifies. The helmet remained a utilitarian item, even though it had a clear role in an artistic work, the film.
However the US judgment was justiciable here. English courts have jurisdiction to entertain claims in relation to infringement of foreign copyrights where there is a basis for in personam jurisdiction for those courts over a defendant: ‘in the case of a claim for infringement of copyright of the present kind, the claim is one over which the English court has jurisdiction, provided that there is a basis for in personam jurisdiction over the defendant, or, to put it differently, the claim is justiciable. It is clear that much of the underpinning of the Mocambique rule and the decision in Potter v Broken Hill Pty Co Ltd has been eroded. All that is left of the Mocambique rule (except to the extent that it is modified by the Brussels I Regulation) is that there is no jurisdiction in proceedings for infringement of rights in foreign land where the proceedings are ‘principally concerned with a question of the title, or the right to possession, of that property.’ So also article 22(1) of the Brussels I Regulation does not apply to actions for damages for infringement of rights in land.’

Lord Phillips, President, Lord Walker, Lady Hale, Lord Mance, Lord Collins
[2011] 3 WLR 487, [2011] FSR 41, [2011] Bus LR 1211, [2011] UKSC 39, UKSC 2010/0015, [2011] 4 All ER 817, [2011] FSR 41, [2012] 1 All ER (Comm) 1011, [2012] 1 AC 208, [2012] EMLR 3,, [2011] ECDR 21
Bailii, Bailii Summary, SC, SC Summary
Copyright Designs and Patents Act 1988 4 51 52, Copyright (Industrial Process and Excluded Articles) (No 2) Order 1989 (SI 1989/1070)
England and Wales
Citing:
At ChDLucasfilm Ltd and others v Ainsworth and Another ChD 31-Jul-2008
The parties disputed ownership of the designs for various props used in the Star Wars films. The defendant had developed designs from ideas originating within the claimant’s companies.
Held: The judgment from the US in a similar claim was . .
Appeal fromLucasfilm Ltd and Others v Ainsworth and Another CA 16-Dec-2009
The claimants had made several Star Wars films for which the defendants had designed various props items. The parties disputed ownership of the rights in the designs, and in articular of a stormtrooper helmet. The issues came down to whether the . .
CitedGahagan v Cooper 4-Dec-1811
Lord Ellenborough discussed the 1798 Act, saying: ‘The statute seems to have been framed with a view to defeat its own object’ . .
CitedBritain v Hanks Bros and Co 1902
The plaintiff claimed copyright in a model soldier cast in metal as a statue. The defendant argued that the statute was intended to apply only to substantial works of art, such as busts, large sculptures and casts of copies of works recognised as . .
CitedPytram v Models (Leicester) Ltd ChD 1930
A model of a wolf-cub’s head was produced from a papier-mache mould in order to be used as a totem by the Boy Scouts Association. They had failed to register it as a design under the 1907 Act and sued for infringement of their copyright under the . .
CitedBritish Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd HL 1986
The claimant’s product was made from drawings. The drawings were protected as copyright artistic works. They were reproduced in a three dimensional form by the claimant’s own products. Someone who copied the claimant’s products indirectly copied the . .
CitedSwarbrick v Burge 26-Apr-2007
Austlii (High Court of Australia) Copyright – Artistic works – Works of artistic craftsmanship – The respondent obtained an injunction against infringement by the appellants of the respondent’s ownership of . .
CitedKing Features Syndicate Inc v O and M Kleeman Ltd ChD 1940
The plaintiff alleging copyright infringement, had relied on fifty five drawings of the Popeye character out of the many thousands of such drawings in the cartoon series. The defendant might have copied from any one of those thousands.
Held: . .
CitedKing Features Syndicate Inc v O and M Kleeman Ltd HL 1941
The owners of copyright in drawings of ‘Popeye, the Sailor’ sued importers of ‘Popeye’ dolls and other toys. The defendants contended that the copyright in the original work had been lost by the operation of section 22 of the 1911 Act because the . .
CitedGeorge Hensher Ltd v Restawile Upholstery (Lancs) Ltd HL 1975
The parties dispute the existence of copyright in a prototype of a piece of furniture.
Held: The term ‘craftsmanship’ in the Act suggests a durable useful handmade object.
Lord Reid explained the significance of the intention of the maker . .
CitedWham-O Manufacturing Co v Lincoln Industries Ltd 1984
(Court of Appeal New Zealand) The wooden models made from preliminary drawings, which was used to produce a mould from which moulded discs known as Frisbees were made, fell ‘within the definition of sculptures and are thus properly the subject of . .
CitedWildash v Klein 2004
(Supreme Court of the Northern Territory – Australia) The parties, two women, each of whom made craftwork depicting local wildlife for sale at markets. Initially they co-operated but later each accused the other of copyright infringement. The . .
CitedMetix (UK) Ltd v G H Maughan (Plastics) Ltd ChD 1997
The plaintiff sought protect its products by claiming copyright protection in the moulds made for making industrial products (twin cartridges like a double-barrelled syringe, which held products prior to their being mixed) The plaintiff claimed that . .
CitedBreville Europe v Thorn EMI Domestic Appliances Ltd ChD 1995
Copyright was asserted in plastic shapes used as moulds for the heated plates in a sandwich toaster.
Held: The defendants had not appropriated the plaintiff’s designs contained in their drawings in producing their own machine. Falconer J . .
CitedDavis (J and S) Holdings v Wright Health Group ChD 1988
The parties disputed the status in intellectual property law of a model of a dental impression tray. A cast was prepared from the model, and a final form prepared from the cast. The author, a professor, made a mock-up of materials but then drew from . .
MentionedPro Sieben Media AG v Carlton Television Ltd and Another CA 7-Jan-1999
The defendant was accused of infringing copyright in a TV programme relating to the pregnancy of a woman with eight foetuses. The defendant claimed fair dealing, but that defence was rejected by the trial judge.
Held: The decision was . .
ApprovedMehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
CitedBiogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
OverruledTyburn Productions Ltd v Conan Doyle ChD 1990
The rule in ‘British South Africa’ extends also to intellectual property. The court was asked whether, many years after the death of Sir Arthur Conan Doyle, there still existed copyrights or other intellectual property rights under the laws of the . .
CitedAMP Inc v Utilux Pty Ltd HL 1971
The 1949 Act denied protection to the features of a design that were solely dictated by a product’s technical function.
Held: A product’s configuration was solely dictated by its technical function if every feature of the design was determined . .
CitedHosokawa Micron International Inc v Fortune 1990
(Federal Court of Australia) A design which is dictated solely by function is not a ‘design’ within the meaning of section 4 of the Designs Act 1906. Lockhart J said that: ‘The essence of the registrability of a design is that it has an element of . .
CitedDuke of Brunswick v The King of Hanover HL 31-Jul-1948
The Duke claimed that the King of Hanover had been involved in the removal of the Duke from his position as reigning Duke and in the maladministration of his estates.
Held: ‘A foreign Sovereign, coming into this country cannot be made . .
CitedUnderhill v Hernandez 29-Nov-1897
(US Supreme Court) Underhill, a US citizen, had constructed a waterworks in Bolivar for the government which was eventually overthrown by revolutionary forces, one of whose generals was Hernandez. After Hernandez had captured Bolivar, Underhill . .
CitedPotter v Broken Hill Pty Co Ltd 21-Aug-1905
VLR (Supreme Court – Victoria) International law – Conflict of laws – Tort committed abroad – Jurisdiction – Patent in New South Wales – Infringement by Victorian company in New South Wales of New South Wales . .
MentionedPotter v Broken Hill Pty Co Ltd 20-Mar-1906
(High Court of Australia) (affirmed) . .
CitedBritish South Africa Company v Companhia de Mocambique HL 1893
Two companies, one Portuguese, the other British and controlled by Cecil Rhodes, were in dispute about a large territory called Manica. The Portuguese company complained that they owned lands and mineral rights in Manica yet the British company had . .
CitedLand Oberosterreich v CEZ (Judgments Convention/Enforcement Of Judgments) ECJ 11-Jan-2006
ECJ Interpretation of Article 16(1)(a) of the Brussels Convention – Exclusive jurisdiction for ‘proceedings which have as their object rights in rem in immovable property’ – Action for the abatement of a nuisance . .
CitedDef Lepp Music v Stuart-Brown 1986
A claim to infringement of copyright by acts performed in the Netherlands and Luxembourg was not justiciable in England, because such a claim cannot satisfy the double-actionability rule, namely, that the relevant acts must be actionable in the . .
CitedOwusu v Jackson ECJ 1-Mar-2005
ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State . .
CitedHesperides 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 . .
CitedAksionairnoye Obschestvo A M Luther v James Sagor and Co CA 1921
A claim was made as to property seized by a decree of Russian revolutionaries later recognised as the government.
Held: A court is required to recognise a foreign state’s dealings with private proprietary rights within its jurisdiction. An . .
CitedButtes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .

Cited by:
CitedHuman Genome Sciences Inc v Eli Lilly and Company SC 2-Nov-2011
The court considered an appeal against the declaration of invalidity of a biomedical patent for a new human protein on the grounds that it was not susceptible of industrial application.
Held: The patentee’s appeal succeeded. The court had to . .
CitedSeven Arts Entertainment Ltd v Content Media Corporation Plc and Others ChD 18-Mar-2013
The claimant sought summary judgment on its claim for copyright infringement based upon judgements on the same materials in Canada. . .
CitedPMS International Group Plc v Magmatic Ltd SC 9-Mar-2016
Overall Impression of Design is a Judgment
The respondent had alleged infringement of its registered design in the ‘Trunki’, a ride-on children’s suitcase. At first instance, the judge had held that the surface decorations were to be ignored. On appeal it had been held that the judge had . .
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 . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Jurisdiction

Leading Case

Updated: 09 November 2021; Ref: scu.442226

Douglas, Zeta-Jones, Northern and Shell Plc v Hello! Limited, Hola SA, Junco, The Marquesa De Varela, Neneta Overseas Limited, Ramey: CA 12 Feb 2003

The claimants claimed infringement of the privacy of their wedding celebrations. They requested permission for service out of the jurisdiction to join Mr Ramey as defendant, saying he had been the one who had taken some of the photographs in New York at issue. Mr Ramey resisted saying that, being resident in California, there was no good cause for the court to assume jurisdiction over him. It was accepted that in the imminent full trial, no issue could be taken against him.
Held: If there was a serious issue to be tried against him, England was the appropriate place to hear it. His alleged involvement was as a participator, and not just as an assistant. Appeal allowed.

Scott Baker, Rix Master Of The Rolls (Lord Phillips)
[2003] EWCA Civ 139, [2003] EMLR 585
Bailii
Civil Procedure Rules 6.20
England and Wales
Citing:
CitedBerezovsky and Glouchkov v Forbes Inc and Michaels CA 31-Jul-2001
The claimant sought damages from the defendant for a magazine article claiming that he was involved in organised crime in Russia. The defendants appealed against the striking out of elements of the defence suggesting lesser meanings. Was meaning a . .
Appeal fromDouglas, Zeta-Jones, Northern and Shell Plc v Hello! Ltd, Hola Sa, Junco, The Marquesa De Varela, Neneta Overseas Ltd, Ramey ChD 27-Jan-2003
The claimants sought an order striking out the defendants’ defence on the grounds that, by destroying documents, the possibility of a fair trial had been prejudiced.
Held: Refusing the order, save as to certain paragraphs of the defence, the . .

Cited by:
See AlsoDouglas etc v Hello! Ltd etc ChD 11-Apr-2003
The claimants were to be married. They sold the rights to publish photographs of their wedding, but various of the defendants took and published unauthorised pictures.
Held: The claimants had gone to lengths to ensure the commercial value of . .
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 . .
CitedHRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Jurisdiction

Leading Case

Updated: 09 November 2021; Ref: scu.179038

Green v Sig Trading Ltd (Jurisdictional Points: Working Outside The Jurisdiction): EAT 24 May 2017

Jurisdiction – working outside Great Britain

EAT JURISDICTIONAL POINTS – Working outside the jurisdiction
Jurisdiction – working outside Great Britain
The Respondent was a British company, which employed the Claimant as Managing Director of its business in the Kingdom of Saudi Arabia (‘KSA’). The Claimant had lived in the Middle East for some years and had no home in the UK. He continued to live in Lebanon, commuting to work in the KSA for two to four days each week. Given that the KSA operation had only recently been established, the Claimant reported to a manager based in the UK and other staff and support services were also located in the UK. Further, when offered the position, the Claimant was given one of the Respondent’s standard UK contracts which recorded that it was to be governed by English law and included references to British statutory employment protections. The ET found, however, that the budget for the KSA operation was an independent item within the UK budget and was administered separately. Balancing the various factors, it concluded that the Claimant was an expatriate employee who had stronger connections to KSA and the Middle East than to Great Britain and British employment law, and thus that it did not have jurisdiction to hear the Claimant’s claims. The Claimant appealed.
Held: allowing the appeal in part
The ET had been entitled to find that the KSA operation for which the Claimant was employed was subject to an independent budget, administered separately and to see this as a case where it was appropriate to balance the competing considerations in assessing whether the stronger connection was really with Great Britain and British employment law. In so doing, however, the ET had disregarded the fact that the parties had agreed the Claimant’s contract should be governed by English law. It was not suggested that the contractual term in this regard did other than properly represent the parties’ intentions and it was therefore wrong of the ET to have regard to the Respondent’s subjective explanation for this and to dismiss it as a relevant factor. Although the ultimate assessment as to the weight to be given to this and other factors was for the ET, the apparent failure to have regard to a relevant matter rendered the conclusion unsafe and the appeal would be allowed on this basis.

Eady QC HHJ
[2017] UKEAT 0282 – 16 – 2405, [2017] WLR(D) 458
Bailii, WLRD
England and Wales

Employment, Jurisdiction

Updated: 09 November 2021; Ref: scu.590418

Knight v Axa Assurances: QBD 24 Jul 2009

knight_axaQBD2009

The claimant was injured in a car accident in France. The defendant insurer said that the quantification of damages was to be according to French law and the calculation of interest also. The claimant said that English law applied.
Held: The assessment of damages is a procedural matter, and is governed by the law of the forum in which the case is brought. Articles 9(1)(b) and 11(2) of Brussels I (Council Regulation 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters) entitle an injured party to sue an insurer direct on matters relating to insurance, in the place where the injured party is domiciled, provided that direct action is permitted under national law. Both French and English law are potentially relevant to the award of pre-judgment interest on those damages, depending on the facts. Damages are to be assessed by reference to English Law.

Sharp J
[2009] EWHC 1900 (QB), [2009] Lloyds Rep IR 667
Bailii
Brussels I (Council Regulation 44/2001, Supreme Court Act 1981 35A
Citing:
CitedRaffelsen Zentralbank Osterreich Ag v Five Star General Trading Llc and Others CA 1-Mar-2001
An assigned marine insurance policy was subject to a claim. The issue was the ability of an assignee to claim as a claim in contract where the proper law was that under which the contract was made, or a claim of an intangible right to claim against . .
CitedMaher and Another v Groupama Grand Est QBD 23-Jan-2009
The parties asked as to whether after a car accident in France the the assessment of damages and the calculation of pre-judgment interest was to be calculated according to French law. . .
CitedFBTO Schadeverzekeringen v Jack Odenbreit ECJ 13-Dec-2007
ECJ Regulation (EC) No 44/2001 – Jurisdiction in matters relating to insurance – Liability insurance – Action brought by the injured party directly against the insurer – Rule of jurisdiction of the courts for the . .
CitedHarding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
CitedCriminal proceedings against Ruiz Bernaldez ECJ 28-Mar-1996
Europa In the preliminary-ruling procedure under Article 177 of the Treaty, it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to . .
CitedMendes Ferreira and Delgado Correia Ferreira v Companhia de Seguros Mundial Confianca SA ECJ 14-Sep-2000
ECJ Compulsory insurance against civil liability in respect of motor vehicles – Directives 84/5/EEC and 90/232/EEC – Minimum amounts of cover – Type of civil liability – Injury caused to a member of the family of . .
CitedMacmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) CA 2-Nov-1995
The question of ownership of a company is to be decided according to law of country where the company is incorporated. Conflict of laws rules are to be used to look to the issue in the case not the cause of action.
Staughton LJ said: ‘In any . .
CitedMacmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) ChD 1-Jul-1993
Bona fide chargees for value of shares situated in New York and held on trust for Macmillan were able, by application of New York law, to take the shares free of Macmillan’s prior equitable interest of which the chargees had had no notice. Where . .
CitedJefford v Gee CA 4-Mar-1970
The courts of Scotland followed the civil law in the award of interest on damages. The court gave examples of the way in which they apply the ex mora rule when calculating the interest payable in a judgment. If money was wrongfully withheld, then . .
CitedMidland International Trade Services v Al Sudairy ChD 11-Apr-1990
The court had power to order the payment of interest on a judgment of a court in Saudi Arabia even though a Saudi court would have applied Sharia law. That law follows the teaching in the Koran forbidding the payment or receipt of interest. . .
CitedKuwait Oil Tanker Company SAK and another v Bader and others 17-Dec-1998
. .

Cited by:
CitedMaher and Another v Groupama Grand Est CA 12-Nov-2009
Two English claimants respectively suffered injury in a French road accident. They brought claims for damages against the French insurer of the other driver. Judgment on liability was entered by consent. There were issues as to the assessment of . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages, Jurisdiction

Updated: 09 November 2021; Ref: scu.375078

Owusu v Jackson: ECJ 1 Mar 2005

ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State against a person domiciled in that State and other defendants domiciled in a non – Contracting State – Forum non conveniens – Incompatibility with the Brussels Convention.
Article 2 of the Brussels Convention ‘should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts . . he may be sued.’ The Court also mentioned the requirement of ‘predictability of the rules of jurisdiction’ in the Convention, and to ‘the principle of legal certainty, which is the basis of the Convention.’
The English court could not decline jurisdiction: ‘application of the forum non conveniens doctrine, which allows the court seised a wide discretion as regards the question whether a foreign court would be a more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of Article 2, and consequently to undermine the principle of legal certainty, which is the basis of the Convention. . . the Brussels Convention precludes a court of a contracting state from declining the jurisdiction conferred on it by Article 2 of that Convention on the ground that a court of a non-contracting state would be a more appropriate forum for the trial of the action, even if the jurisdiction of no other contracting state is in issue or the proceedings have no connecting factors to any other contracting state’.

C-281/02, [2005] EUECJ C-281/02, Times 09-Mar-2005, [2005] ILPr 25, [2005] ECR I-553, [2005] 2 All ER (Comm) 577, [2005] QB 801, [2005] 1 CMLR 43, [2005] 1 Lloyds Rep 452, [2005] 1 CLC 246, [2005] 2 WLR 942, [2005] ECR I-1383
Bailii
Council Regulation (EC) 44/2001
European
Citing:
Reference fromOwusu 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 . .

Cited by:
CitedNussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
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 . .
CitedPacific International Sports Clubs Ltd v Soccer Marketing International Ltd and Others ChD 24-Jul-2009
The parties disputed ownership of shares in the football club Dynamo Kiev. Claims were to be made under Ukrainian company law and in equity. The claimant (a company registered in Mauritius) sought to proceed here. The defendants (largely companies . .
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 . .
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 . .
CitedA v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
DistinguishedMittal v Mittal CA 18-Oct-2013
The parties were born and lived in India and were Hindu. They came to the UK but after separation, returned to India, leaving no assets here. H began divorce proceedings in India, but W then issued a petition here. She now appealed against on order . .

Lists of cited by and citing cases may be incomplete.

European, Jurisdiction

Leading Case

Updated: 09 November 2021; Ref: scu.223250

Gomez and others v Vives: CA 3 Oct 2008

The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from the basic principle of domicile in Article 2, the provisions of Article 5 are to be construed restrictively. In this case, the beneficiary was being sued for overpayment as part of the trust. ‘It would be quite inconsistent with the restrictive approach to the special head of jurisdiction in Article 5(6) to read the words ‘as trustee’ in the expansive way, in which they would have to be read, to produce a result in favour of the claimants.’ Even if the powers on which the claim was based are classified as fiduciary, the first defendant is not being sued in the second claim ‘as a trustee . . of a trust created . . by a written instrument’ for the purposes of Article 5(6).

Lawrence Collins LJ, Jacobs LJ
[2008] EWCA Civ 1065
Bailii
Council Regulation (EC) 44/2001 2 5(6), Jurisdiction and Judgments Act 1982
England and Wales
Citing:
Appeal fromGomez and others v Encarnacion Gomez-Monche Vives and others ChD 18-Feb-2008
The court had no jurisdiction in a claim by the three claimants against their mother, the first defendant, arising out of a trust created by their father. The family was Spanish and the trust was expressed to be governed by English law. The . .
CitedDuke of Marlborough v Attorney General 1945
The Court was asked whether foreign shares held on trust were taxable as on a succession on the death of the beneficiary of the trust.
Held: The proper law of a marriage settlement ‘can only be the law by reference to which the settlement as . .
CitedIn re Diplock’s estate CA 1948
After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were . .
CitedBonython v Commonwealth of Australia PC 1951
Lord Simonds defined the proper law governing a contract to be: ‘the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connection.’ . .
MentionedMinistry of Health v Simpson; In re Diplock dec HL 1950
The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . .
CitedReisch Montage AG v Kiesel Baumaschinen Handels GmbH (Area Of Freedom, Security and Justice) ECJ 13-Jul-2006
Europa Regulation (EC) No 44/2001 – Article 6(1) – Cases where there is more than one defendant – Action brought in a Member State against a person domiciled in that State who is the subject of bankruptcy . .
CitedChellaram and Another v Chellaram and others (No 2) ChD 16-Apr-2002
One of the defendants had not been properly served by posting the proceedings to an address at which he stayed on his very occasional visits to London. The proceedings had not been issued for the purposes of service abroad, because at the time of . .
CitedIn re United Railways of the Havana v Regla Warehouses Ltd CA 1960
There had been a financing transaction by way of a lease by a Pennsylvania corporation, as trustee for foreign bondholders, to an English company carrying on business in Cuba, of assets in Cuba. By a Cuban decree the assets were transferred to the . .
CitedKleinwort Benson Limited v City of Glasgow District Council HL 19-Jun-1997
Restitution when Contract Void ab initio
A claim for restitution of money paid under a contract which was void ab initio is not a claim in contract, nor tort, nor delict, it was justiciable only in the court of domicile. The Brussels Convention does not decide jurisdiction. ‘But it is . .
CitedKalfelis v Bankhaus Schroder, Munchmeyer, Hengst and Co and others ECJ 27-Sep-1988
kalfelisECJ1988
ECJ For Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to apply, a connection must exist between the various actions brought . .
CitedIn re United Railways of Havana and Regla Warehouses Ltd; Tomkinson v First Pennsylvania Banking and Trust Co HL 1960
A sum was held to be due from that company in US dollars under a lease and another agreement which were both governed by the law of Pennsylvania.
Held: The sum provable in the liquidation of the company was to be converted at the rates of . .
CitedMettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
CitedRe Freiburg Trust 2004
(Jersey) . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Trusts

Updated: 09 November 2021; Ref: scu.276660

United Film Distribution Limited; United Pictures (India) Exports Private Limited v Chhabria; Chhabria; Spark Entertainments Limited; Spark Media Limited; Fairdeal Exports Private Limited and Mathilda International SA: CA 28 Mar 2001

The court rules, which dealt with the grant of permission to serve documents out of the jurisdiction under rule 6.20(2), were no less wide than the power in the court with regard to the substitution, or addition, of parties under Rule 19.1(2). The change from the old court rules had not either narrowed the power.

Times 05-Apr-2001, [2001] EWCA Civ 416
Bailii
Civil Procedure Rules
England and Wales
Cited by:
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.

Civil Procedure Rules, Jurisdiction

Updated: 09 November 2021; Ref: scu.135524

Kabab-Ji Sal (Lebanon) v Kout Food Group (Kuwait): CA 20 Jan 2020

Lord Justice Flaux
[2020] EWCA Civ 6, [2020] 1 Lloyd’s Rep 269
Bailii
England and Wales
Cited by:
Appeal fromKabab-Ji Sal (Lebanon) v Kout Food Group (Kuwait) SC 26-Oct-2021
Governing law of an arbitration agreement which provides for arbitration in Paris but which is contained in a main agreement which is expressly governed by English law and (ii) as to whether the respondent became a party to the main agreement and/or . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Arbitration

Updated: 09 November 2021; Ref: scu.646345

Nissan v The Attorney General: HL 11 Feb 1969

The plaintiff was a British subject with a hotel in Cyprus taken over by British troops on a peace-keeping mission. At first the men were there by agreement of the governments of Cyprus and the United Kingdom. Later they became part of a United Nations peace-keeping force. The plaintiff claimed compensation for the occupation of his hotel and damage allegedly done to his property by the British troops billeted there. Preliminary issues were tried which included the question whether the alleged actions of the British troops were acts of state so that no claim lay against the UK government.
Held: The defence of act of state was not available. While the making of the treaty (agreement) between the Cyprus government and the British, Greek and Turkish governments was an act of state and some acts done in performance of the treaty might be acts of state, the occupation of the hotel and the damage allegedly done to it were not sufficiently closely connected to the making of the treaty to fall within the scope of the doctrine.
The House considered the meaning of the phrase ‘act of state’. The way in which the government exercises its prerogatives in relation to foreign affairs and in its relations with foreign states does not give rise to rights which are cognisable by the domestic courts: ‘As regard such acts it is certainly the law that the injured person if an alien cannot sue in an British Court and can only have resort to diplomatic protest. How far this rule goes and how far it prevents resort to the courts by British subjects is not a matter on which clear authority exists.’
Lord Wilberforce cited the following definition of Crown acts of state: ‘An act of the executive as a matter of policy performed in the course of its relations with another state, including its relations with the subjects of that state, unless they are temporarily within the allegiance of the Crown.’ However: ‘This is less a definition than a construction put together from what has been decided in various cases; it covers as much ground as they do, no less, no more. It carries with it the warning that the doctrine cannot be stated in terms of a principle but developed from case to case.’
Lord Pearson said: ‘it is necessary to consider what is meant by the expression ‘act of state’, even if it is not expedient to attempt a definition. It is an exercise of sovereign power. Obvious examples are making war and peace, making treaties with foreign sovereigns, and annexations and cessations of territory. Apart from these obvious examples, an act of state must be something exceptional. Any ordinary governmental act is cognisable by an ordinary court of law (municipal not international): if a subject alleges that the governmental act was wrongful and claims damages or other relief in respect of it, his claim will be entertained and heard and determined by the court.’
Lord Reid said: ‘I think that a good deal of the trouble has been caused by using the loose phrase ‘act of state’ without making clear what is meant. Sometimes it seems to be used to denote any act of sovereign power or of high policy or any act done in the execution of a treaty. That is a possible definition, but then it must be observed that there are many such acts which can be the subject of an action in court if they infringe the rights of British subjects. Sometimes it seems to be used to denote acts which cannot be made the subject of inquiry in a British court. But that does not tell us how to distinguish such acts: it is only a name for a class which has still to be defined.’

Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearce, Lord Wilberforce, Lord Pearson
[1970] AC 179, [1969] UKHL 3
Bailii
England and Wales
Cited by:
CitedMulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
CitedBici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
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.
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 . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Jurisdiction, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.198143

Airbus Industrie G I E v Patel and Others: HL 18 Mar 1999

An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the Bangalore court in India and there were proceedings on foot there. The Patels and other English passengers, however, having settled with the airline for its maximum liability, chose, in defiance of an order made by the Bangalore court, to sue the French manufacturers of the aircraft in Texas (which had no natural jurisdiction) on the basis of an American principle of no-fault liability, punitive damages and contingent fees. The Texas court had no principle of forum non conveniens and it was not an option for Airbus Industrie to apply to the Texas court to stay the proceedings there on that ground.
Held: The grant of an injunction, restraining parties from pursuing a remedy overseas, must be supported by clear evidence of a close connection with the UK jurisdiction. ‘ … the domestic court as a matter of comity must take cognisance of the fact that the foreign court has assumed jurisdiction. If, applying the principles relating to forum non conveniens … the foreign court could reasonably have concluded that there was no alternative forum that was clearly more appropriate, the domestic court should respect that decision and the application should be dismissed.’ and ‘the former [the power to stay] depends on its voluntary adoption by the state in question and the latter [the power to make a restraining order] is inhibited by respect for comity’. The passengers were not to be restrained from suing in Texas. There were no English proceedings (other than the application to the English court for the injunction), and nor did Airbus Industrie have any sufficient interest in asking the English court for a remedy.

Lord Goff of Chieveley
Times 06-Apr-1998, Gazette 07-May-1998, [1998] UKHL 12, [1999] 1 AC 119, [1998] 2 All ER 257, [1998] 2 WLR 686
House of Lords, Bailii
England and Wales
Citing:
Appeal fromAirbus Industrie Gie v Patel and Others CA 12-Aug-1996
The policy allowing restraint of foreign proceedings was not limited to protecting proceedings here. An injunction to restrain proceedings given here after a dismissal of a similar case in the US was proper. . .
CitedSociete Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
At first instanceAirbus Industrie Gie v Patel and Others QBD 21-May-1996
A court may grant an anti-suit injunction restricting proceedings but only very rarely. . .
ApprovedAMCHEM Products Incorporated v British Columbia (Workers’ Compensation Board) 24-Mar-1993
Supreme Court of Canada – Courts – Appropriate forum – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in . .

Cited by:
CitedNational Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
CitedTurner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
CitedAl-Bassam v Al-Bassam CA 1-Jul-2004
The claimant sought administration of her husband’s estate according to his domicile in England. The defendant claimed the estate under Islamic law, and that there had been no marriage, and that he had been domiciled in Saudi Arabia.
Held: The . .
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. . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction

Leading Case

Updated: 02 November 2021; Ref: scu.77692

JO 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 interim guardianship order had been made by the Sheriff. When the sisters made the current application for an order, the now guardian Scottish local council said that she was now habitually resident in Scotland and that the present court had no jurisdiction.
Held: The matter was governed by section 83 of the 2005 which incorporated the 2000 Convention.

Sir James Munby P
[2013] EWHC 3932 (COP), [2013] EWCOP 3932, [2013] WLR(D) 495, [2014] COPLR 62, [2014] 1 Fam 197, [2014] 3 WLR 453, [2014] WTLR 337
Bailii, WLRD
Mental Capacity Act 2005 63, 2000 Hague Convention on the International Protection of Adults
England and Wales
Citing:
CitedIn re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
CitedIn re S (Adult patient) (Inherent jurisdiction: Family life); Sheffield City Council v S FD 2002
A court could only grant an order permitting treatment despite the absence of an adult patient’s consent by virtue of the doctrine of necessity.
Munby J said: ‘in our multi-cultural and pluralistic society the family takes many forms . . The . .
CitedRe 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.
CitedG v E (Deputyship and Litigation Friend) CoP 11-Oct-2010
Baker J considered the common law doctrine of necessity as it applied to the medical treatment of adults without mental capacity and the 2005 Act.
Held: As to section 5: ‘These provisions do not amount to a general authority to act on behalf . .
CitedA v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .

Cited by:
CitedThe Health Service Executive of Ireland v PA and Others CoP 3-Jun-2015
hsen_paCoP201506
The HSE sought orders under s.63 of and Schedule 3 to the 2005 Act recognising and enforcing orders by the Irish High Court for the detention of three young persons (‘PA’, ‘PB’, and ‘PC’) at a special unit known in Northampton.
Held: On an . .

Lists of cited by and citing cases may be incomplete.

Health, Scotland, Jurisdiction

Leading Case

Updated: 02 November 2021; Ref: scu.518978

VTB Capital Plc v Nutritek International Corp and Others: SC 6 Feb 2013

The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for resolution of VTB’s tort claims, and nor that there was a proper basis for piercing the corporate veil.
Held: The appeal as to jurisdiction was dismissed (Clarke, Reed LL dissenting). The appeal as to piercing the corporate veil was dismissed unanimously. The limited burden on a defendant challenging jurisdiction is to identify the issues and how they might arise. It was wrong to approach such a decision as the equivalent to a trial. Permission to serve on a foreign resident should be refused unless the court felt it clear that England is the appropriate forum, but an appellate court should intervene only in the case of error.
The conclusion below that Russian law governed the case had been incorrect but had not affected the result. The choice of law was separate from and did not determine the choice of forum.
There was insufficient cause shown to pierce the corporate veil, and permission to amend to allow this argument should not be granted.

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Wilson, Lord Reed
UKSC 2012/0167, [2013] UKSC 5, [2013] WLR(D) 41, [2013] 1 All ER 1296, [2013] BCC 514, [2013] 1 CLC 153, [2013] 1 Lloyd’s Rep 466, [2013] 2 AC 337, [2013] 1 BCLC 179, [2013] 1 All ER (Comm) 1009, [2013] 2 WLR 398
Bailii, WLRD, Balii Summary, SC, SC Summ
Private International Law Act (Miscellaneous Provisions) Act 1995
England and Wales
Citing:
At First InstanceVTB Capital Plc v Nutritek International Corp and Others ChD 29-Nov-2011
The appellant bank had granted very substantial lending facilities to the defendant companies, and now alleged fraudulent misrepresentation. The defendants now sought to have the service set aside. The claimants also sought permission to amend the . .
Appeal fromVTB Capital Plc v Nutritek International Corp and Others CA 20-Jun-2012
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
CitedGilford Motor Co Ltd v Horne CA 1933
The defendant was the plaintiff’s former managing director. He was bound by a restrictive covenant after he left them. To avoid the covenant, he formed a company and sought to transact his business through it. At first instance, Farwell J had found . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
CitedAntonio Gramsci Shipping Corp and Others v Stepanovs ComC 25-Feb-2011
The claimant companies alleged that the defendants had used the claimant’s parent’s companies wrongfully to syphon off money from the claimants by interposing contract between the lcimants and their proper customers. In this action the claimant . .
CitedAntonio Gramsci Shipping Corp and Others v Recoletos Ltd and Others ComC 12-Jul-2012
The seventh defendant sought to be excused from the case denying the court’s jurisdiction. He had been a director. . .
CitedAlliance Bank JSC v Aquanta Corporation and Others ComC 14-Dec-2011
The defendants applied to have set aside the leave to serve proceedings on them out of the jurisdiction. . .
CitedSmith v Hughes QBD 1871
Blackburn J said: ‘I apprehend that if one of the parties intends to make a contract on one set of terms, and the other intends to make a contract on another set of terms, or, as it is sometimes expressed, if the parties are not ad idem, there is no . .
CitedSim v Robinow 1892
The task of the court in deciding jurisdiction is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice: . .
CitedCordoba Shipping Co Ltd v National State Bank, Elizabeth, New Jersey (The Albaforth) CA 1984
A negligent misrepresentation was made in a telex sent from the United States but received and acted upon in England. The judge had set aside leave to serve the document out of the jurisdiction.
Held: The appeal succeeded. The transmission was . .
CitedSpiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
CitedWelsh Development Agency v Export Finance Co Ltd CA 1992
The court was asked whether a transaction relating to goods between an exporter and the defendant, as a financier, associated with sales by the exporter to third-party purchasers, amounted to a true sale by the exporter to the defendant or was . .
CitedMorin v Bonhams and Brooks Limited Bonhams and Brooks S A M CA 18-Dec-2003
The claimant had bought a vintage Ferrari motor car through the defendant auctioneers in Monaco but sought rescission after it appeared that the odometer had been altered. The auction conditions purported to exclude any description of the car. He . .
CitedLimit (No 3) Ltd and others v PDV Insurance Company CA 11-Apr-2005
There had been substantial oil leaks in Venezuela, which had been insured and then re-insured in London. Permission had been given to serve the defendant out of the jurisdiction, but that permission had been set aside. The claimant now appealed.
CitedSawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
CitedTrafigura Beheer Bv v Kookmin Bank Co ComC 16-Jun-2006
The defendant bank had given the claimant a letter of credit, but when the goods under transport were discharged without the bills of lading,and the buyers became insolvent, the bank refused to pay. There had been proceedings in Korea, but the . .
CitedKuzel v Roche Products Ltd CA 17-Apr-2008
The claimant had argued that she had been unfairly dismissed since her dismissal was founded in her making a protected disclosure. The ET had not accepted either her explanation or that of the employer.
Held: The employee’s appeal failed, and . .
CitedDouglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
CitedIslamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
CitedSawyer v Atari Interactive Inc CA 2-Mar-2007
The claimant designed games software and complained of infringements by the defendant of licensing agreements by failing to allow audits as required.
Held: The defendant should be allowed to be heard on the standard practices for management of . .
CitedLimit (No 3) Ltd and others v PDV Insurance Company CA 11-Apr-2005
There had been substantial oil leaks in Venezuela, which had been insured and then re-insured in London. Permission had been given to serve the defendant out of the jurisdiction, but that permission had been set aside. The claimant now appealed.
CitedNovus Aviation Ltd v Onur Air Tasimacilik As CA 27-Feb-2009
The defendant appealed against a refusal to set aside the grant of leave to serve outside the jurisdiction granted to the claimant. Neither party conducted and business in England, and the contract was made in Switzerland, but was expressed to be . .
CitedMujur Bakat Sdn Bhd and Another v Uni Asia General Insurance Berhad and Others ComC 18-Mar-2011
Eder J said: ‘in considering whether or not England is the most appropriate forum, it is necessary to have in mind the overall shape of any trial and, in particular what are, or what are at least likely to be, the issues between the parties and . .
CitedSim v Robinow 1892
The task of the court in deciding jurisdiction is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice: . .
CitedDistiller’s Co (Biochemicals) Ltd v Thompson PC 19-Jan-1971
(Australia) There had been a negligent failure in New South Wales to warn a pregnant woman of the dangers of taking the drug thalidimide.
Held: When looking at jurisdiction to hear a complaint of a tort, the court should look to where in . .
CitedDiamond v Bank of London and Montreal Ltd CA 1979
Fraudulent and negligent misrepresentations were made by telephone and telex in Nassau to Mr Diamond in London. Donaldson J had held that the tort of fraudulent misrepresentation was committed in Nassau when the telexes were sent and from where the . .
CitedCordoba Shipping Co Ltd v National State Bank, Elizabeth, New Jersey (The Albaforth) CA 1984
A negligent misrepresentation was made in a telex sent from the United States but received and acted upon in England. The judge had set aside leave to serve the document out of the jurisdiction.
Held: The appeal succeeded. The transmission was . .
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 . .
CitedAl-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
CitedAK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others PC 10-Mar-2011
Developing Law – Summary Procedures Very Limited
(Isle of Man) (‘Altimo’) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable in Kyrgyzstan.
Held: Lord Collins said: ‘The general rule is that it is not normally appropriate . .
CitedBerezovsky v Forbes Inc and Michaels; Glouchkov v Same HL 16-May-2000
Plaintiffs who lived in Russia sought damages for defamation against an American magazine with a small distribution in England. Both plaintiffs had real connections with and reputations in England. A judgment in Russia would do nothing to repair the . .

Cited by:
CitedPrest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
CitedOPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
CitedFour Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Company, Jurisdiction

Leading Case

Updated: 02 November 2021; Ref: scu.470799

Google Inc v Vidal-Hall and Others: CA 27 Mar 2015

Damages for breach of Data Protection

The claimants sought damages alleging that Google had, without their consent, collected personal data about them, which was resold to advertisers. They used the Safari Internet browser on Apple products. The tracking and collation of the claimants’ browser generated information was contrary to the defendant’s publicly stated position that such activity could not be conducted for Safari users unless they had expressly allowed it to happen. The defendants denied that the allegation amounted to a tort, and that therefore the court had no jurisdiction, appealing against a refusal to strike out the claim.
Held: Google’s appeal failed, and the action should proceed. The court was not bound by the Court of Appeal’s decision in Hello!. The misuse of private information could work as a tort: ‘Misuse of private information is a civil wrong without any equitable characteristics. We do not need to attempt to define a tort here. But if one puts aside the circumstances of its ‘birth’, there is nothing in the nature of the claim itself to suggest that the more natural classification of it as a tort is wrong.’
Claimants may recover damages under the 1998 Act for a non-material loss.
Sub-section 13(2) of the 1998 Act fails effectively to implement Article 23 of the DP Directive, and has to be disapplied because it is incompatible with the Charter.

Lord Dyson MR, McFarlane, Sharp LJJ
[2015] EWCA Civ 311, [2015] CP Rep 28, [2015] EMLR 15, [2015] 3 WLR 409, [2015] WLR(D) 156, [2015] FSR 25, [2015] 3 CMLR 2, [2016] QB 1003
Bailii, WLRD
Data Protection Act 1998 13(2), Civil Procedure Rules, Directive 95/46/EC
England and Wales
Citing:
Appeal fromVidal-Hall and Others v Google Inc QBD 16-Jan-2014
The claimants alleged misuse of their private information in collecting information about their internet useage when using Google products. Google now applied for an order setting aside consent for service out of the jurisdiction.
Held: The . .
CitedAK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others PC 10-Mar-2011
Developing Law – Summary Procedures Very Limited
(Isle of Man) (‘Altimo’) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable in Kyrgyzstan.
Held: Lord Collins said: ‘The general rule is that it is not normally appropriate . .
CitedDouglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
CitedJohnson v The Medical Defence Union CA 28-Mar-2007
The claimant asserted that the 1998 Act created rights between the parties that are in substance though not in form of a contractual nature; and rights to compensation for infringement of those primary rights of a nature that did not previously . .
CitedVTB Capital Plc v Nutritek International Corp and Others CA 20-Jun-2012
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
CitedA v B plc and Another (Flitcroft v MGN Ltd) CA 11-Mar-2002
A newspaper company appealed against an order preventing it naming a footballer who, they claimed, had been unfaithful to his wife.
Held: There remains a distinction between the right of privacy which attaches to sexual activities within and . .
CitedWainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
CitedCampbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
CitedAsh and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
CitedLord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
CitedTchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
CitedMetal und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 27-Jan-1989
The claimants sued for negligent advice and secured judgment. The defendant company became insolvent, and so the plaintiff now sued the US parent company alleging conspiracy. The court considered a tort of malicious prosecution of a civil claim, . .
CitedKitechnology BV v Unicor GmbH CA 1995
The plaintiffs owned confidential information relating to novel plastic coated pipes; the defendants were German companies and individuals domiciled in Germany, who it was alleged had used the plaintiffs’ confidential information. One issue the . .

Cited by:
AppliedTLT and Others v The Secretary of State for The Home Department and Another QBD 24-Jun-2016
Damages for Publication of Asylum Applicants Data
The claimants had been part of the family returns process, returning failed asylum seekers to their countries of origin. The defendant collected data about the process and published a spreadsheet which was intended to provide an anonymous summary of . .
CitedNT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Information, Jurisdiction, Human Rights

Updated: 02 November 2021; Ref: scu.544905

Allianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (‘the Front Comor’): ECJ 10 Feb 2009

ECJ (Judgment) A West Tankers ship damaged a jetty in Syracuse. An agreement provided for an arbitration in London. The insurers having paid out brought a subrogated action in Italy. West Tankers sought an order in England to restrain the Italian proceedings because of the arbitration agreement.
Held: It was not open to the courts of one country to seek to restrain those of another on the basis of such an arbitration agreement. Where the subject matter under dispute might come within the regulations, a preliminary application also came within the regulations. It was for each court to determine for itself which matters fell under its jurisdiction.

V Skouris, President and Judges P. Jann, C. W. A. Timmermans, A. Rosas, K. Lenaerts, A. O Caoimh, P. Kuris, E. Juhasz, G. Arestis, A. Borg Barthet, J. Klucka, E. Levits and L. Bay Larsen Advocate General J. Kokott
[2009] EUECJ C-185/07, C-185/07, [2009] 3 WLR 696, [2009] ILPr 20, [2009] 1 Lloyd’s Rep 413, [2009] 1 All ER (Comm) 435, [2009] All ER (EC) 491, [2009] 1 CLC 96, [2009] 1 AC 1138
Bailii, Times
Council Regulation (EC) No 44/2001 of December 22, 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
European
Citing:
OpinionAllianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (Judgments Convention/Enforcement of Judgments) (‘the Front Comor’) ECJ 4-Sep-2008
Europa (Opinion) Regulation (EC) No 44/2001 Scope Arbitration Order restraining a person from commencing or continuing proceedings before the national courts of another Member State instead of before an arbitral . .
At High CourtWest Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and Another (‘The Front Comor’) ComC 21-Mar-2005
Appeal against anti-suit order. The court ordered that since the question of whether an anti-suit injunction could be made to restrain proceedings abroad had been decided in Through Transport, that issue could go straight to the House of Lords. . .
At House of LordsWest Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and others (The Front Comor) HL 21-Feb-2007
A ship had foundered, and the owners disputed their insurance claim. The policy provided for arbitration in London, and one party sought an order to prevent the other commencing proceedings in another EU state in breach of the arbitration agreement. . .
CitedErich Gasser GmbH v MISAT Srl ECJ 9-Dec-2003
The claimant Austrian company had for many years sold goods to the defendant an Italian company. Eventually it presented a claim before the court in Italy. Having obtained judgement, it later sought to enforce the order through the Austrian court . .
CitedTurner v Grovit ECJ 27-Apr-2004
The claimant had been employed as a solicitor by the respondent at locations across Europe, and came to claim in England that they had wrongly implicated him in unlawful activity. The company sought to issue proceedings in Spain.
Held: The . .

Cited by:
CitedClyde and Co Llp and Another v Winkelhof QBD 22-Mar-2011
The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 02 November 2021; Ref: scu.332839

Canada 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 properly satisfy the court that it is right to take jurisdiction. That may involve considering matters which go both to jurisdiction and to the matter to be argued, e.g. the existence of a contract. ‘The question before the court should be decided on affidavits from both sides and without full discovery and/or cross-examination . . [The] ‘good arguable case’ test, although obviously applicable to the ex parte stage becomes of most significance at the inter partes stage. In the interlocutory context: ‘Good arguable case’ reflects that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e. of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allows the court to take jurisdiction. It is a threshold below ‘ proved on a balance of probabilities but higher than ‘ serious question to be tried ‘good arguable case ‘ is a concept with some degree of flexibility depending on the issue.’

Waller, Nourse, Pill LJJ
Times 10-Nov-1997, [1997] EWCA Civ 2592, [1998] 1 WLR 547, [1998] 1 All ER 318
Bailii
Civil Jurisdiction and Judgments Act 1982
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 . .

Cited by:
CitedStaines v Walsh, Howard ChD 14-Mar-2003
The claimant sought an account from the defendant share broker for the proceeds of share transactions. The defendant said the matter should be tried in Hong Kong.
Held: The claimant must show a good arguable case. Here there was evidence to . .
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 . .
Appeal fromCanada 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 . .
CitedSawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
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. . .
See AlsoCanada 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. . .
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 . .
CitedFiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
CitedVarsani v Relfo Ltd CA 27-May-2010
The defendant appealed against refusal of a declaration that the court had no jurisdiction to hear the claim. He said that he lived in Kenya, and the claimant had failed first to apply for leave to serve out of the jurisdiction. The claimant had . .
ApprovedBols 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 . .
CitedWilliams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
CitedFour Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .

Lists of cited by and citing cases may be incomplete.

International, Jurisdiction

Leading Case

Updated: 02 November 2021; Ref: scu.142991

Siegfried Janos Schneider: ECJ 3 Oct 2013

schneiderECH1013

ECJ Jurisdiction and recognition and enforcement of judgments in civil and commercial matters – Regulation (EC) No 44/2001 – Scope – Legal capacity of natural persons – Exclusive jurisdiction in matters relating to rights in rem in immovable property – Scope – Non-contentious proceedings concerning the right of a person who has been placed under guardianship and is domiciled in a Member State to dispose of immovable property situated in another Member State

M Ilesic P
C-386/12, [2013] EUECJ C-386/12, [2013] WLR(D) 366
Bailii, WLRD
Regulation (EC) No 44/2001

European, Jurisdiction

Updated: 02 November 2021; Ref: scu.516352

Schibsby v Westenholz: CA 1980

The parties were both Danish, the plaintiffs resident in France and the defendants in London. The plaintiffs now sought to enforce a judgment obtained against the defendangt in France in default of their appearance. The defendants had no property in France, and the contract was not made there. It had been obtained under standard practice in France.
Held: Foreign judgments are to be enforced here on the basis that there is a duty to submit to the decree of a court of competent jurisdiction. However, anything which might negative such a duty operates as a defence. Thesee defendants were not French subjects and owed no allegiance even temporary to France, wree not there when the contracual obligations arose, had had no participation in the proceedings and were not subject to French jurisdiction. They had no obligation to submit to a jurisdiction assumed over foreigners and the judgment could not be enforced against them here.

Blackburn J
(1870-1871) LR 6 QB 155, (1870) LR QB 155, [1861-73] All ER Rep 988, 40 LJqB 73, 24 LT 93, 19 WR 587
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 . .
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

Leading Case

Updated: 01 November 2021; Ref: scu.565109

Villiers v Villiers: SC 1 Jul 2020

Maintenance in England, divorce in Scotland

H disputed the right of W to seek maintenance before and English court, saying that the parties had mostly lived in Scotland, and the divorce was being conducted there.
Held: (Wilson, Hales LL dissenting) H’s appeal failed. The divorce and the maintenance action were distinct, and the European Regulations gave the England court jurisdiction.

Lady Hale, Lord Kerr, Lord Wilson, Lady Black, Lord Sales
[2020] UKSC 30
Bailii, Bailii Summary
Matrimonial Causes Act 1973 27, Council Regulation (EC) No 4/2009
England and Wales

Family, Jurisdiction, European

Updated: 01 November 2021; Ref: scu.652175

Hi Hotel Hcf SARL v Uwe Spoering: ECJ 3 Apr 2014

hihotel_ECJ0414

ECJ Judicial cooperation in civil matters – Regulation (EC) No 44/2001 – International jurisdiction in matters relating to tort, delict or quasi-delict – Act committed in one Member State consisting in participation in an act of tort or delict committed in another Member State – Determination of the place where the harmful event occurred

L. Bay Larsen, P
C-387/12, [2014] EUECJ C-387/12
Bailii
Regulation (EC) No 44/2001

European, Jurisdiction

Updated: 01 November 2021; Ref: scu.523561

Pacific International Sports Clubs Ltd v Soccer Marketing International Ltd and Others: ChD 24 Jul 2009

The parties disputed ownership of shares in the football club Dynamo Kiev. Claims were to be made under Ukrainian company law and in equity. The claimant (a company registered in Mauritius) sought to proceed here. The defendants (largely companies registered in the UK) said that the Ukraine was the proper jurisdiction.
Held: The court declined jurisdiction. The question of whether a party would receive a fair trial in a particular jurisdiction is peculiarly fact sensitive. Though there were grave doubts about the consistency of the Ukrainian courts, they were not sufficient to conclude that a fair trial was not possible. The dispute had no real connection with this country. The documents would be be Ukrainian and the witnesses would all have Ukrainian as their first language: ‘ the nature of dispute, the identity of the persons whose evidence will be material, the sensitivities involved (control of Ukraine’s most celebrated football club) and the very difficult legal issues that will have to be decided point overwhelmingly to Ukraine as the appropriate and indeed only natural forum fort the trial.’
The case of Owusu might still not allow a british court to decline jurisdiction in a case against the first defendant. However, that defendant was only a minor player in the action, and the tail should not be allowed to wag the dog.

Blackburne J
[2009] EWHC 1839 (Ch)
Bailii
Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
England and Wales
Citing:
CitedSpiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
CitedOwusu v Jackson ECJ 1-Mar-2005
ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State . .
CitedThe Abidin Daver HL 1984
The House considered the application of the doctrine of forum conveniens.
Held: A stay of an English action on the ground of forum non conveniens could be resisted on the ground that justice could not be obtained in the otherwise more . .
CitedCherney v Deripaska ComC 3-Jul-2008
Renewed application for leave to serve proceedings out of jurisdiction. The court considered a submission that a fair trial would not be possible in Russia: ‘An English court will approach with considerable circumspection any contention that a . .
CitedConnelly v RTZ Corporation Plc and others HL 24-Jul-1997
The availability of legal aid to a party is not part of criteria for choosing jurisdiction save in exceptional circumstances.
Lord Goff discussed the Spiliada case: ‘the burden of proof rests on the defendant to persuade the court to exercise . .
CitedOJSC Oil Company Yugraneft v Abramovich and others ComC 29-Oct-2008
The claimants sought damages alleging a massive fraud by the defendants. The court considered whether the parties could receive a fair trial of the action in Russia.
Held: They could. Christopher Clarke J said: ‘Firstly, this case is in no way . .
CitedAmin Rasheed Shipping Corp v Kuwait Insurance Co HL 1983
A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by . .
CitedDexter Ltd v Vlieland-Boddy CA 2003
The court discussed the significance of Johnson v Gore Wood.
Clarke LJ said: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co [2002] 2 AC 1, can be summarised as follows:
Company, Jurisdiction

Updated: 01 November 2021; Ref: scu.361471

Lloyd v Google Llc: QBD 8 Oct 2018

No Damage – No extra jurisdiction Service

Application to serve proceedings here – allegation that over some months Google acted in breach its duty under the 1998 Act by secretly tracking the internet activity of Apple iPhone users, collating and using the information it obtained by doing so, and then selling the accumulated data. The method by which Google was able to do this is generally referred to as ‘the Safari Workaround’.
Held: The facts alleged in the Particulars of Claim did not support the contention that the Representative Claimant or any of those whom he claimed to represent had suffered ‘damage’ within the meaning of DPA s 13. The Representative Claimant failed to establish that the claim was one arguably within PD6B 3.1(9), or that it had a real prospect of success, and permission to serve these proceedings on Google outside the jurisdiction was refused.

Warby J
[2018] EWHC 2599 (QB), [2018] WLR(D) 636
Bailii, WLRD
Data Protection Act 1998
England and Wales

Information, Jurisdiction, Litigation Practice

Updated: 01 November 2021; Ref: scu.625543

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

The claimant conservatory installers claimed wrongful repudiation of the contract by the defendant householders. The defendants, living in Ayrshire, said that the English courts had no jurisdiction over the contract.
Held: The court gave its reasons for accepting the defendants’ submission. The mere fact that Oak Leaf’s primary focus in advertising is on England did not correctly reflect the statutory test or determine the outcome of the application. While the primary focus of the claimant’s business may be in England and most of the business had been in England, it was apparent from its websites and its overall activity (including the acceptance of previous projects in Scotland as well as that of the Weirs) that Oak Leaf was envisaging doing business with consumers domiciled in Scotland. Accordingly, the action must be brought in Sotland.

Stuart-Smith J
[2013] EWHC 3197 (TCC)
Bailii
Civil Jurisdiction and Judgments Act 1982 16(1) Sch 4
England and Wales
Citing:
Applied.Peter Pammer v Reederei Karl Schluter GmbH and Co KG etc ECJ 7-Dec-2010
ECJ (Grand Chamber) Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Article 15(1)(c) and (3) – Jurisdiction over consumer contracts – Contract for a voyage by freighter – Concept of . .

Lists of cited by and citing cases may be incomplete.

Contract, Jurisdiction, Consumer

Updated: 01 November 2021; Ref: scu.517363

British Airways Board v Laker Airways Limited: HL 1985

The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful under the Sherman and Clayton acts, but were not unlawful in English law. The English courts were therefore not the forum conveniens, and the injuncion was refused. In order for the court to issue a restraining injunction, it was necessary that the conduct of the party being restrained should fit ‘the generic description of conduct that is ‘unconscionable’ in the eye of English law’. ‘The interpretation of treaties to which the United Kingdom is a party but the terms of which have not either expressly or by reference been incorporated in English domestic law by legislation is not a matter that falls within the interpretative jurisdiction of an English court of law.’
Lord Diplock set out two principles: ‘The second proposition, that of English law, was understood by your Lordships to have been common ground between the parties, at any rate throughout the lengthy hearing of the appeal; no argument casting any doubt upon it was advanced. The proposition is that, even if the allegations against B.A. and B.C. in the complaint in the American action can be proved, they disclose no cause of action on the part of Laker against B.A. or B.C. that is justiciable in an English court. The Clayton Act which creates the civil remedy with threefold damages for criminal offences under the Sherman Act is, under English rules of conflict of laws, purely territorial in its application, while because the predominant purpose of acts of B.A. and B.C. that are complained of was the defence of their own business interests as providers of scheduled airline services on routes on which Laker was seeking to attract customers from them by operating its Skytrain policy, any English cause of action for conspiracy would be ruled out under the now well-established principle of English (as well as Scots) law laid down in a series of cases in this House spanning 50 years of which it suffices to refer only to Mogul Steamship Co Ltd v McGregor, Gow and Co [1892] AC 25 and Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435.’

Lord Diplock
[1985] AC 58, [1984] UKHL 7, [1984] 3 WLR 413, [1984] 3 All ER 39
Bailii
England and Wales
Citing:
At First instanceBritish 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 . .
CitedCrofter Hand Woven Harris Tweed Company Limited v Veitch HL 15-Dec-1941
The plaintiffs sought an interdict against the respondents, a dockers’ union, who sought to impose an embargo on their tweeds as they passed through the port of Stornoway.
Held: A trade embargo was not tortious because the predominant purpose . .
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 . .

Cited by:
CitedTurner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
CitedSouth Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV HL 1987
There can be little basis for the grant of relief to a landowner providing protection from an action in nuisance if the landowner will not himself remedy the public nuisance. The House considered whether the circumstances gave the court power to . .
CitedOccidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
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 . .
CitedRegina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
CitedFourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
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.

Litigation Practice, Torts – Other, Jurisdiction

Leading Case

Updated: 01 November 2021; Ref: scu.195992

Essex County Council v Essex Incorporated Congregational Church Union: HL 1963

No Power to Grant Jurisdiction By Consent

An attempt was made by the parties to confer jurisdiction upon the Lands Tribunal.
Held: Constitutive jurisdiction cannot be created by agreement or estoppel. A statutory tribunal cannot be given jurisdiction by an earlier mistake, agreement, order or failure to take the point as to jurisdiction.
Lord Reid said: ‘It is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction, or can estop the consenting party from subsequently maintaining that such court or tribunal has acted without jurisdiction.’

Lord Reid, Lord Hodson
[1963] AC 808
England and Wales
Cited by:
CitedRydqvist v Secretary of State for Work and Pensions CA 24-Jun-2002
The applicant had applied to the tribunal with regard to his entitlement to job-seeker’s allowance, but withdrew his application before the hearing. The tribunal had nevertheless heard the case and held against him. He appealed that finding. The . .
CitedAhsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction

Leading Case

Updated: 02 November 2021; Ref: scu.182288

Adams 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 Texas in a suit by victims of asbestos. The defendant took no part in the United States proceedings and default judgments were entered. Actions on the judgment in England failed.
Held: The court declined to pierce the veil of incorporation. It was a legitimate use of the corporate form to use a subsidiary to insulate the remainder of the group from tort liability. There was no evidence to justify a finding of agency or facade.
There is an exception to the general rule, that steps which would not have been regarded by the domestic law of the foreign court as a submission to the jurisdiction ought not to be so regarded here, notwithstanding that if they had been steps taken in an English Court they might have constituted a submission to jurisdiction.
Slade LJ said: ‘Two points at least are clear. First, at common law in this country foreign judgments are enforced, if at all, not through considerations of comity but upon the basis of the principle explained thus by Parke B. in Williams v Jones
Secondly, however, in deciding whether the foreign court was one of competent jurisdiction, our courts will apply not the law of the foreign court itself but our own rules of private international law . .’ and ‘First, in determining the jurisdiction of the foreign court in such cases, our court is directing its mind to the competence or otherwise of the foreign court ‘to summon the defendant before it and to decide such matters as it has decided:’ see Pemberton v Hughes [1899] 1 Ch. 781, 790 per Lindley M.R. Secondly, in the absence of any form of submission to the foreign court, such competence depends on the physical presence of the defendant in the country concerned at the time of suit.
. . we would, on the basis of the authorities referred to above, regard the source of the territorial jurisdiction of the court of a foreign country to summon a defendant to appear before it as being his obligation for the time being to abide by its laws and accept the jurisdiction of its courts while present in its territory. So long as he remains physically present in that country, he has the benefit of its laws, and must take the rough with the smooth, by accepting his amenability to the process of its courts.’
‘[Counsel for Adams] described the theme of all these cases as being that where legal technicalities would produce injustice in cases involving members of a group of companies, such technicalities should not be allowed to prevail. We do not think that the cases relied on go nearly so far as this. As [counsel for Cape] submitted, save in cases which turn on the wording of particular statutes or contracts, the court is not free to disregard the principle of Salomon v Salomon and Co Ltd [1897] AC 22 merely because it considers that justice so requires. Our law, for better or worse, recognises the creation of subsidiary companies, which though in one sense the creatures of their parent companies, will nevertheless under the general law fall to be treated as separate legal entities with all the rights and liabilities which would normally attach to separate legal entities.’

Slade, Mustill and Ralph Gibson LJJ
[1990] Ch 433, [1991] 1 All ER 929, [1990] 2 WLR 657, [1990] BCLC 479, [1990] BCC 786
England and Wales
Citing:
CitedPemberton v Hughes CA 1899
Lindley MR said: ‘There is no doubt that the courts of this country will not enforce the decisions of foreign courts which have no jurisdiction in the sense explained above – i.e., over the subject matter or over the persons brought before them . . . .
CitedWilliams 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 . .
AppliedWoolfson v Strathclyde Regional Council HL 15-Feb-1978
The House considered the compensation payable on the compulsory purchase of land occupied by the appellant, but held under a company name.
Held: The House declined to allow the principal shareholder of a company to recover compensation for the . .
Appeal fromAdams v Cape Industries plc ChD 1990
The piercing of the veil argument was used to attempt to bring an English public company, which was the parent company of a group which included subsidiaries in the United States, within the jurisdiction of the courts of the United States. Where a . .

Cited by:
AppliedRakusens Ltd v Baser Ambalaj Plastik Sanayi Ticaret AS CA 11-Oct-2001
A company had sought and obtained leave to serve proceedings on a foreign based company, by serving documents on a local agent. The local agent was an independent contractor, who received and transmitted orders to the company, but who, themselves, . .
CitedMotorola Credit Corporation v Uzan and others (No 2) CA 12-Jun-2003
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought 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: . .
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 . .
CitedRubin and Another (Joint Receivers and Managers of The Consumers Trust) v Eurofinance Sa and Others CA 30-Jul-2010
. .
CitedPrest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
CitedPublic Joint Stock Company (‘Rosgosstrakh’) v Starr Syndicate Ltd and Others ComC 17-Jun-2020
Reserved judgment on the claimant’s application for summary judgment on its claim for recognition and enforcement of three judgments obtained in its favour in the Russian courts . .
CitedFetch.AI Ltd and Another v Persons Unknown Category A and Others ComC 15-Jul-2021
Cryptocurrency Action
The claimants sought damages and other remedies saying that the unknown defendants had obtained access to the private key guarding their crypto currency assets, and then sold them at an undervalue, acquiring substantial profits for themselves in . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company

Leading Case

Updated: 01 November 2021; Ref: scu.179853

Kalfelis v Bankhaus Schroder, Munchmeyer, Hengst and Co and others: ECJ 27 Sep 1988

kalfelisECJ1988

ECJ For Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to apply, a connection must exist between the various actions brought by the same plaintiff against different defendants. That connection, whose nature must be determined independently, must be of such a kind that it is expedient to determine the actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. The expression ‘matters relating to tort, delict or quasi-delict’ contained in Article 5 (3) of the Convention must be regarded as an independent concept covering all actions which seek to establish the liability of a defendant and which are not related to a ‘contract’ within the meaning of Article 5(1). A court which has jurisdiction under Article 5(3) over an action in so far as it is based on tort or delict does not have jurisdiction over that action in so far as it is not so based.

C-189/87, [1988] ECR 5565, R-189/87, [1988] EUECJ R-189/87, [1988] ECT 6656
Bailii
Convention on Jurisdiction And The Enforcement Of Judgments 5
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 . .
CitedKleinwort Benson Limited v City of Glasgow District Council HL 19-Jun-1997
Restitution when Contract Void ab initio
A claim for restitution of money paid under a contract which was void ab initio is not a claim in contract, nor tort, nor delict, it was justiciable only in the court of domicile. The Brussels Convention does not decide jurisdiction. ‘But it is . .
CitedShahar v Tsitsekkos and others ChD 17-Nov-2004
The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
CitedMasri v Consolidated Contractors International (UK) Ltd CA 24-Oct-2005
The defendants who were resident in Greece appealed a decision that the English court had jurisdiction over them, by virtue of a close connection of the matter with earlier proceedings heard here.
Held: The fact that the defendants were all . .
CitedCasio Computer Co Ltd v Sayo and others CA 11-Apr-2001
The court was asked whether a constructive trust claim based on dishonest assistance is a matter ‘relating to tort, delict or quasi delict’ for the purpose of Article 5(3) of the Brussels Convention?
Held: A constructive trust claim based upon . .
CitedGomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .
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.

European, Jurisdiction

Leading Case

Updated: 01 November 2021; Ref: scu.134648

Melzer v MF Global UK: ECJ 29 Nov 2012

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

Jaaskinen AG
C-228/11, [2012] EUECJ C-228/11, [2013] EUECJ C-228/11
Bailii, Bailii
Regulation (EC) No 44/2001 5(3)
European

Jurisdiction

Updated: 01 November 2021; Ref: scu.466426

NML Capital Ltd v Argentina: SC 6 Jul 2011

The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets in the UK. They argued that the terms of issue waived state immunity.
Held: The appeal succeeded. The respondent, under section 31 of the 1982 Act had submitted to the jurisdiction and had waived immunity by its actions. The doctrine of state immunity had over many years come to be restricted, and the 1978 Act now contained a complete statement of the law. Immunity remains, but does not attach to a sovereign authority’s commercial activities.
The phrase ‘proceedings relating to a commercial transaction’ was to be given a broad rather than narrow meaning.

Lord Phillips, President Lord Walker Lord Mance Lord Collins Lord Clarke
[2011] UKSC 31, UKSC 2010/0040
Bailii, Bailii Summary, SC Summary, SC
Civil Jurisdiction and Judgments Act 1982, State Immunity Act 1978, Civil Procedure Rules 6.20(9)
England and Wales
Citing:
Appeal FromRepublic of Argentina v NML Capital Ltd CA 4-Feb-2010
The appellant republic appealed against an order allowing the enforcement against it of a judgment obtained in the US by the claimant. There is no treaty between the US and the UK for the mutual recognition and enforcement of judgments, and an . .
At First InstanceNML Capital Ltd v The Republic of Argentina ComC 29-Jan-2009
The defendant state sought to prevent the company enforcing a judgment entered against it in the USA.
Held: Where the judgment was properly obtained, a claim of sovereign immunity would not operate to allow avoidance of an enforcement of the . .
CitedThe Parlement Belge CA 1879
An action in rem indirectly impleaded a sovereign who was the owner of the vessel served because his property was affected by the judgment of the court. An unincorporated treaty cannot change the law of the land and, ‘the immunity of the sovereign . .
CitedMighell v Sultan of Johore CA 1-Dec-1893
In 1885 the Sultan of Johore came to England, and according to the plaintiff, Miss Mighell, took the name Albert Baker and promised to marry her.
Held: The Sultan was entitled to immunity even though up to the time of suit ‘he has perfectly . .
CitedDuff Development Co v Kelantan Government HL 1924
Lord Sumner suggested that in the absence of a clear statement of the position from the Government, the court might be entitled to decide whether a defendat had the benefit of state immunity for itself on the basis of the evidence before it.
A . .
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 . .
CitedKahan v Pakistan Federation 1951
State immunity can only be lost by a submission to the jurisdiction when it was invoked, and not by an earlier act. . .
CitedRahimtoola v Nizam of Hyderabad CA 1957
The court considered the doctrine of state immunity. Lord Denning MR said: ‘If the dispute brings into question, for instance, the legislative or international transactions of a foreign government, or the policy of its executive, the court should . .
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.
CitedThai-Europe Tapioca Service Ltd v Government of Pakistan, Directorate of Agricultural Supplies 1975
Lord Denning said: ‘a foreign sovereign has no immunity when it enters into a commercial transaction with a trader here and a dispute arises which is properly within the territorial jurisdiction of our courts. If a foreign government incorporates a . .
CitedAIC Limited v The Federal Government of Nigeria, the Attorney General of the Federation of Nigeria QBD 13-Jun-2003
AIC had used the 1920 Act to register a judgment obtained in Nigeria against the Nigerian Government. The underlying matter was a commercial transaction. Nigeria applied to set the registration aside, saying that registration was an adjudicative act . .
CitedSvenska Petroleum Exploration Ab v Lithuania and Another (No 2) ComC 4-Nov-2005
The court was asked whether a claim to enforce an arbitration award constituted ‘proceedings relating to’ the transaction that gave rise to the award for the purposes of section 3(1)(a).
Held: It did not. . .
ApprovedSvenska Petroleum Exploration Ab v Lithuania and Another (No 2) CA 13-Nov-2006
The defendant state could not now claim state immunity to avoid enforcement of an arbitration award, having agreed to the reference to arbitration in writing.
Held: A person against whom an award has been made is not bound to challenge it . .
To be confined to its factsParker 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 . .
CitedHolland 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.
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 . .
CitedRe 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 . .
CitedWhite and others v Vandervell Trustees Ltd. (No. 2), Re Vandervell’s Trusts (No 2) CA 3-Jul-1974
Lord Denning MR described the modern practice concerning pleadings: ‘It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has . .
CitedWaterhouse 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. . .
CitedBeck 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 . .
CitedBastone and Firminger Ltd v Nasima Enterprises (Nigeria) Ltd and Others ComC 20-May-1996
Banking – collecting banker – remitting banker – privity of contract Banking – remitting bank – right to damages – other than indemnity by customer Conflict of laws – RSC Order 11 r.1(1)(f) – ‘damage sustained within the jurisdiction’ – meaning . .
CitedDonohue 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. . .
CitedMasri v Consolidated Contractors International Company Sal and Another (No 3) CA 6-Jun-2008
The court was asked whether the English court has jurisdiction following judgment to grant an anti-suit injunction against foreign judgment debtors (one of whom has a domicile in a Brussels I Regulation State) restraining them from pursuing . .
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 . .
CitedUGS Finance Ltd v National Mortgage Bank of Greece CA 1964
Pearson LJ said: ‘As to the question of ‘fundamental breach’, there is a rule of construction that normally an exemption or exclusion clause or similar provision in the contract should be construed as not applying to a situation created by a . .
CitedAK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others PC 10-Mar-2011
Developing Law – Summary Procedures Very Limited
(Isle of Man) (‘Altimo’) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable in Kyrgyzstan.
Held: Lord Collins said: ‘The general rule is that it is not normally appropriate . .
CitedCarl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) HL 1966
An agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. The House was asked whether the fact that an issue had already been . .
CitedDonegal International Ltd v Zambia and Another ComC 15-Feb-2007
Claim under settlement agreement. . .
MentionedColt Telecom Group Plc, In the Matter of the Insolvency Act 1986 ChD 20-Dec-2002
. .
MentionedBritish Wagon Co Ltd v Gray 1896
. .
CitedNational Bank of Greece SA v Westminster Bank Executor and Trustee Co (Channel Islands) Ltd 1971
. .
CitedYemshaw v London Borough of Hounslow SC 26-Jan-2011
The appellant sought housing after leaving her home to escape domestic violence. The violence was short of physical violence, and the authority had denied a duty to rehouse her. She said that the term ‘domestic violence’ in the Act was not intended . .
CitedHighberry Limited, Highberry Llc v Colt Telecom Group Plc; in Re Colt Telecom Group plc (No 1) ChD 25-Nov-2002
Application for disclosure of documents, the provision of information, and directions for cross-examination in an unusual petition for an administration order. No-action clauses have been the subject of discussion in the International Court of . .
CitedFitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
CitedMacaulay (Tweeds) Ltd v Independent Harris Tweed Producers Ltd 1961
The court considered an allegation of non-disclosure in the case of an application to serve proceedings abroad: ‘If the judge is satisfied that there was no intention to deceive and the mis-statement is not grossly negligent, he may think it better . .
CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
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 . .
CitedKuwait Oil Co (KSC) v Idemitsu Tankers KK, The Hida Maru CA 1981
. .
CitedHelby v Rafferty CA 1979
The court declined to hold that a man who had lived with a woman tenant for five years before her death were part of the same family because they had deliberately opted to retain their formal independence and they had not been recognised as being . .

Lists of cited by and citing cases may be incomplete.

International, Jurisdiction

Updated: 01 November 2021; Ref: scu.441502

OT Africa Line Ltd v Magic Sportswear Corporation and others: CA 13 Jun 2005

The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. Proceedings were also begun in England, and the original Canadian claimant now appealed a refusal to restrain the action.
Held: The appeal failed. Whilst it was important to avoid a clash of jurisdictions, the autonomy of the parties to make their own contract was more important than the place of business or where the location was made: ‘no English court would expect a foreign court to grant a stay by reason of any provision of English law, if an action was proceeding in that foreign court by virtue of an agreement, governed by the law of that court, that proceedings were to be brought in the courts of that country. Conversely an English court would hope that a decision to retain an action brought in England, pursuant to an exclusive jurisdiction clause in a contract governed by English law, would be respected by any foreign court.’ However: ‘In the case of exclusive jurisdiction clauses, however, comity has a smaller role. It goes without saying that any court should pay respect to another (foreign) court but, if the parties have actually agreed that a foreign court is to have sole jurisdiction over any dispute, the true role of comity is to ensure that the parties’ agreement is respected.’

Laws, Rix and Longmore LJJ
[2005] EWCA Civ 710, Times 21-Jun-2005, [2006] 1 All ER (Comm) 32, [2005] 2 LLR 170, [2005] 2 Lloyd’s Rep 170, [2005] 1 CLC 923
Bailii
Contracts (Applicable Law) Act 1990
England and Wales
Citing:
CitedDonohue 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. . .
CitedThe 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, . .
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 . .
CitedVita Food Products Inc v Unus Shipping Co Ltd PC 30-Jan-1939
(Nova Scotia) Goods were shipped from Newfoundland under a bill of lading which contained an exemption for loss caused by the servants of the carrier. This exemption was void by the law of Newfoundland, whose legislature had enacted the Hague Rules, . .
CitedAdams v National Bank of Greece HL 1961
Questions of interpretation and enforcement of contracts are resolved by reference to the proper law. Although debt under a contract whose proper law is the law of another jurisdiction may, for the purposes of Scots law, be discharged by insolvency . .
CitedAirbus Industrie G I E v Patel and Others HL 18-Mar-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
CitedAMCHEM Products Incorporated v British Columbia (Workers’ Compensation Board) 24-Mar-1993
Supreme Court of Canada – Courts – Appropriate forum – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in . .
CitedErich Gasser GmbH v MISAT Srl ECJ 9-Dec-2003
The claimant Austrian company had for many years sold goods to the defendant an Italian company. Eventually it presented a claim before the court in Italy. Having obtained judgement, it later sought to enforce the order through the Austrian court . .
CitedSabah Shipyard (Pakistan) Ltd v The Islamic Republic of Pakistan and Another CA 14-Nov-2002
An order was sought to restrain proceedings in Pakistan.
Held: The agreement provided that it should be subject to the exclusive jurisdiction of England. The national state was also party to the agreement, and had waived sovereign immunity. It . .
CitedAggeliki Charis Compania Maritima SA v Pagnan SpA – The Angelic Grace CA 1995
On the charterers’ orders the Angelic Grace was required to tie up alongside another vessel which they owned. Whilst unloading the weather turned and the vessels collided. Each blamed the other and the owners claimed a salvage. The court considered . .
CitedContinental Bank Na v Aeakos Compania Naviera Sa and Others CA 26-Nov-1993
The Bank was entitled to an injunction in the UK, by virtue of the jurisdiction given in their agreement, even though it was not the UK court which was first seised of the matter. Steyn LJ said: ‘. . a claim for damages for breach of contract would . .
CitedSociete Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
CitedThe Fehmarn 1957
Willmer J said: ‘Clearly it requires a strong case to satisfy the court that the agreement [an express agreement to submit to a foreign tribunal] should be overridden.’ . .
CitedThe Fehmarn 1958
The effect of an agreement prorogating a foreign jurisdiction is to confer on the English court a discretion to stay the English proceedings. . .
CitedTurner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
CitedTurner v Grovit ECJ 27-Apr-2004
The claimant had been employed as a solicitor by the respondent at locations across Europe, and came to claim in England that they had wrongly implicated him in unlawful activity. The company sought to issue proceedings in Spain.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.226156

Sheppard 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 materials published on their website which was hosted in the USA. It included materials calculated to create hatred of Jewish and black people. The defendants argued that the court did not have jurisdiction because the site were hosted in the US.
Held: The materials were created in the UK and were intended to be seen by people in the UK and offered re-distribution of printed material from the UK. The ‘substantial measure’ test was correctly applied in the context of the 1986 Act: ‘Whilst in 1986 the world-wide web was a thing of the future and computers were in their infancy it seems to us clear that ‘written material’ is plainly wide enough to cover the material disseminated by the website in the present case. The judge took the same view. He said that what was on the computer screen was first of all in writing or written and secondly that the electronically stored data which is transmitted also comes within the definition of written material because it is written material stored in another form.’

Lord Justice Scott Baker, Mr Justice Penry-Davey and Mr Justice Cranston
[2010] EWCA Crim 65, [2010] 2 Cr App Rep (S) 68, [2010] 1 Cr App R 26, [2010] 1 WLR 2779, [2010] 2 All ER 850, [2010] Crim LR 720
Bailii
Public Order Act 1986 19(1)
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 . .
CitedSmith (Wallace Duncan), Regina v (No 4) CACD 17-Mar-2004
The defendant appealed convictions for fraudulent trading and obtaining property by deception, saying that the English court could not prosecute an offence committed principally in the US.
Held: Provided some substantial element (here the . .
CitedSomchai 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 . .
CitedRegina 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 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 . .
CitedRegina 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 Perrin CACD 22-Mar-2002
The defendant had been convicted of publishing obscene articles for gain under the Act. He lived in London, and published a web site which was stored or hosted abroad, containing pornographic items. The investigating officer had called up the . .

Lists of cited by and citing cases may be incomplete.

Crime, Jurisdiction

Updated: 01 November 2021; Ref: scu.396487

Siegfried 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 determined in accordance with the national law of each of the courts concerned: ‘the Court ‘first seised’ is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned.’

C-129/83, R-129/83, [1984] EUECJ R-129/83, [1984] ECR 2397
Bailii
Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
European
Citing:
See AlsoSiegfried 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 . .

Cited by:
CitedNussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
CitedNeste Chemicals SA and Others v DK Line Sa and Another (‘The Sargasso’) CA 4-Apr-1994
An English Court becomes seised of a case on the service of the writ. Steyn LJ: ‘the general thrust of the Dresser UK Ltd case is not only binding on us but . . . is correct’. There were no ‘exceptions to the rule that date of service marks the time . .
CitedGrupo Torras Sa and Another v Sheikh Fahad Mohammed Al Sabah and Others CA 26-May-1995
A UK court may continue to hear a Spanish company’s claim against it’s own directors if a court was first seized of the matter here. Where a case concerned matters as to the constitution of a company, the courts of the company in which the company . .
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 . .
CitedPhillips 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

Leading Case

Updated: 01 November 2021; Ref: scu.133674

Walker v Wallem Shipmanagement Ltd and Another: EAT 16 Jan 2020

Jurisdiction – Discrimination Claims

Jurisdictional Points – Working Outside The Jurisdiction
The employment tribunal had not erred in law by deciding that it had no power to entertain the claimant’s claim for sex discrimination. The tribunal was correct to hold that the combined effect of section 81 of the Equality Act 2010 (the 2010 Act) and regulation 4 of the Equality Act (Work on Ships and Hovercraft) Regulations 2011 (the 2011 Regulations) was that Part 5 of the 2010 Act did not apply to protect the claimant against sex discrimination in respect of her recruitment in England to work on foreign registered vessels outside Great Britain.
The Hong Kong based respondent is an employment service provider within section 55 of the 2010 Act. It provides personnel to serve on foreign registered ships sailing outside United Kingdom waters. The female claimant qualified as a cadet deck officer and applied in this country through the respondent for work on a foreign registered ship. The respondent informed the claimant that it would not offer her work because of her sex; the respondent recruited only men, not women, to work on its clients’ ships.
The first respondent admitted that this was an act of direct sex discrimination. The tribunal also found, subject to the jurisdiction point, that the claimant’s claim for victimisation would have succeeded, though her claim for harassment would have failed. The tribunal would have awarded compensation for injury to feelings of pounds 9,000. Her claim for loss of earnings would not have succeeded as she had since succeeded in obtaining employment with earnings sufficient to offset any such loss.
The appeal tribunal dismissed the claimant’s appeal with regret. The respondent’s conduct had been reprehensible, but the tribunal had been powerless to right the injustice done to the claimant. The 2011 Regulations, surprisingly, permit an offshore employment service provider to discriminate on United Kingdom soil on the ground of any of the protected characteristics in the 2010 Act when recruiting, in this country, personnel to serve on its clients’ foreign flagged ships sailing outside United Kingdom waters.
No international law obligation of the United Kingdom requires UK domestic law to permit such discrimination. It is, at least, doubtful whether the 2011 Regulations conform to the provisions of Directive 2006/54/EC (the Equal Treatment Directive). The claimant has no remedy against the respondent because the latter is not an emanation of the state. The claimant’s remedy, if any, lies against the United Kingdom itself.
The Secretary of State may well consider it wise to revisit the scope of the 2011 Regulations. A review and report on their impact is due to take place soon, in accordance with regulation 6.

Kerr J
[2020] UKEAT 0236 – 18 – 1601
Bailii
England and Wales

Employment, Discrimination, Jurisdiction

Updated: 01 November 2021; Ref: scu.646840

Mardas v New York Times Company and Another: QBD 17 Dec 2008

The claimant sought damages in defamation. The US publisher defendants denied that there had been any sufficient publication in the UK and that the court did not have jurisdiction. The claimant appealed the strike out of the claims.
Held: The master had made assessments on a summary hearing of facts which were in dispute. The judgment in default was set aside. ‘Although the Claimant is now resident in Greece (within the European Union), he is well known in this jurisdiction and lived here, I understand, from 1963 to 1996. Also, he has two children who live here and have British nationality. There is no artificiality about seeking to protect his reputation within this country’ and ‘what matters is whether there has been a real and substantial tort within the jurisdiction (or arguably so). This cannot depend upon a numbers game, with the court fixing an arbitrary minimum according to the facts of the case.’

Eady J
[2008] EWHC 3135 (QB), [2009] EMLR 8
Bailii
England and Wales
Citing:
CitedDow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
CitedKroch v Rossell CA 1937
The plaintiff brought libel proceedings against the publishers of French and Belgian newspapers. He obtained permission to serve each defendant out of the jurisdiction on the ground that a small number of copies of each newspaper had been published . .
CitedAldi Stores Ltd v WSP Group Plc and others CA 28-Nov-2007
Aldi appealed against an order striking out as an abuse of process its claims against the defendant on a construction dispute. The defendant said the claims should have been brought as part of earlier proceedings.
Held: The appeal succeeded. . .
CitedDingle v Associated Newspapers HL 1964
The plaintiff complained of an article written in the Daily Mail which included the reporting of a report of a Parliamentary select committee. The reporting of the select committee’s report was privileged under the Parliamentary Papers Act 1840. At . .
CitedPfeifer v Austria ECHR 15-Nov-2007
The right to protect one’s honour and reputation is to be treated as falling within the protection of Article 8: ‘a person’s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity . .
CitedSteinberg v Pritchard Englefield (A Firm) and Another CA 3-Mar-2005
The defendant appealed dismissal of his defence to an action in defamation.
Held: The court proceeded in his absence, discerning two grounds of appeal from the papers. He had suggested that he awaited pro bono representation but was 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 . .
CitedPolanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
CitedAffaire Radio France et autres v France ECHR 30-Mar-2004
A person’s right to protect his/her reputation is among the rights guaranteed by ECHR Article 8 as an element of the right to respect for private life. . .
CitedLoutchansky v The Times Newspapers Ltd and Others (Nos 2 to 5) CA 5-Dec-2001
Two actions for defamation were brought by the claimant against the defendant. The publication reported in detail allegations made against the claimant of criminal activities including money-laundering on a vast scale. They admitted the defamatory . .
CitedSchellenberg v British Broadcasting Corporation QBD 2000
The claimant had settled defamation actions against the Guardian and the Sunday Times on disadvantageous terms, when it seemed likely that he was about to lose. He then pressed on with this almost identical action against the BBC.
Held: A . .
CitedBerezovsky v Forbes Inc and Michaels; Glouchkov v Same HL 16-May-2000
Plaintiffs who lived in Russia sought damages for defamation against an American magazine with a small distribution in England. Both plaintiffs had real connections with and reputations in England. A judgment in Russia would do nothing to repair the . .
CitedGutnick v Dow Jones 28-Aug-2001
(High Court of Victoria) Callinan J said: ‘A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet in order for it to reach a small target. It is its ubiquity which is one of the main . .

Cited by:
CitedHaji-Ioannou v Dixon, Regus Group Plc and Another QBD 6-Feb-2009
The defendants sought to strike out the defamation claim on the basis that it was an abuse of process. It was brought by the founder of Easyjet against senior officers of a company in a new venture. The claimant had alleged misuse of confidential . .
CitedDhir v Saddler QBD 6-Dec-2017
Slander damages reduced for conduct
Claim in slander. The defendant was said, at a church meeting to have accused the client of threatening to slit her throat. The defendant argued that the audience of 80 was not large enough.
Held: ‘the authorities demonstrate that it is the . .

Lists of cited by and citing cases may be incomplete.

Defamation, Jurisdiction

Updated: 01 November 2021; Ref: scu.278860

889457 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 court should decline jurisdiction infavour of the courts in Congo. The second and third defendants argued against this saying that they were the principle defendants and that the case should be tried in England.
Held: Congo was not an appropriate forum since the normal infrastructure of state was not available.

Tomlinson J
[2008] EWHC 2679 (Comm), [2009] 1 BCLC 189, [2009] ILPr 14
Bailii
England and Wales
Citing:
CitedOwusu v Jackson ECJ 1-Mar-2005
ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State . .
CitedSim v Robinow 1892
The task of the court in deciding jurisdiction is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice: . .
CitedSpiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
CitedThe Rewia CA 1991
The court considered a jurisdiction clause in a bill of lading which referred to the carrier’s principal place of business. The central management and control of the company was in Germany and the question was whether that was also its principal . .
CitedMinistry of Defence and Support of the Armed Forces for the Islamic Republic of Iran v Faz Aviation Ltd and Another ComC 9-May-2007
Challenge by defendant to jurisdiction to bring claim. . .
CitedKing v Crown Energy Trading AG and another ComC 11-Feb-2003
The defendant, a company incorporated in Russia, sought to set aside proceedings served on it. The contract made the agreement subject to the laws of England and Wales, but the Convention made the jurisdiction clause unenforceable. Evidence . .
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 . .
CitedBritish Aerospace v Dee Howard 1993
Where a contract contained an exclusive jurisdiction clause providing for a case to be tried in the UK, it was relevant that the circumstances which might now suggest a trial elsewhere were perfectly foreseeable at the time of the contract. The new . .
CitedUnited Film Distribution Limited; United Pictures (India) Exports Private Limited v Chhabria; Chhabria; Spark Entertainments Limited; Spark Media Limited; Fairdeal Exports Private Limited and Mathilda International SA CA 28-Mar-2001
The court rules, which dealt with the grant of permission to serve documents out of the jurisdiction under rule 6.20(2), were no less wide than the power in the court with regard to the substitution, or addition, of parties under Rule 19.1(2). The . .
CitedKonkola Copper Mines Plc v Coromin Admn 10-May-2005
Re-insurers liability under Part 20 claims. . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company

Updated: 01 November 2021; Ref: scu.277553

Wright v Granath: QBD 16 Jan 2020

Defamation across borders – Jurisdiction

The claimant began an action for defamation in an online publication. The Norwegian resident defendant had begun an action there seeking a declaration negating liability. The Court was now asked by the defendant whether under Lugano, the UK action was as to the same cause between the same parties, and therefore the court was without jurisdiction.
Held: The defendant’s application was granted. The cases were as to the same facts and law, and the same object. Possible defences could not be considered at this stage. There was no need to struggle to fit the facts – the court should ask whether the cases were mirror images.

Jay J
[2020] EWHC 51 (QB), [2020] 4 WLR 28, [2020] WLR(D) 29
Bailii, WLRD
Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (2007) 27
England and Wales
Citing:
CitedThe owners of the cargo lately laden on board the ship ‘Tatry’ v The owners of the ship ‘Maciej Rataj’ ECJ 6-Dec-1994
ECJ On a proper construction, Article 57 of the Brussels Convention on jurisdiction and the enforcement of judgments as amended means that, where a Contracting State is also a contracting party to another . .
CitedGubisch Maschinenfabrik KG v Giulio Palumbo ECJ 8-Dec-1987
The claimant in Germany sought to enforce a contract by claiming the price of a delivered machine; the claimant in Italy asked for a declaration that no contract had been entered into or, if it had, that it had been discharged by repudiatory conduct . .
CitedGantner Electronic GmbH v Basch Exploitatie Maatschappij BV ECJ 8-May-2003
The dutch based claimant sought damages for wrongful termination of what it said was a long-term contract. The claimant in Austria claimed the price of goods sold and delivered pursuant to a number of one-off contracts to which the defendant . .
CitedMaersk Olie and A/S v Firma M De Haan (Brussels Convention) ECJ 14-Oct-2004
Europa Brussels Convention – Proceedings to establish a fund to limit liability in respect of the use of a ship – Action for damages – Article 21 – Lis pendens – Identical parties – Court first seised – Identical . .
CitedFolien Fischer AG and another v Ritrama SpA ECJ 25-Oct-2012
ECJ Area of freedom, security and justice – Jurisdiction in civil and commercial matters – Special jurisdiction in tort, delict or quasi-delict – Action for a negative declaration (‘negative Feststellungsklage’) . .
CitedJP Morgan Europe Ltd v Primacom Ag and Another ComC 5-Apr-2005
The claimant in England sought to recover a loan made pursuant to a facility agreement; the claimant in Greece sought a declaration that the facility agreement was invalid. The defendants sought a stay of the action brought against them here.
CitedIn re The Alexandros T SC 6-Nov-2013
The parties had disputed insurance claims after the foundering of the Alexandros T. After allegations of misbehaviour by the underwriters, the parties had settled the claims in a Tomlin Order. Five years later, however, the shipowners began . .
CitedEasy Rent A Car Ltd and Another v Easygroup Ltd CA 20-Mar-2019
Application of articles 29 and 30 of Regulation (EU) No 1215/2012 (the Judgments Regulation) to proceedings for trade mark infringement and passing off issued in England by the respondent against the appellants, a month after the appellants had . .
CitedShevill, Ixora Trading Inc., Chequepoint SARL and Chequepoint International Ltd v Presse Alliance SA ECJ 7-Mar-1995
On a proper construction of the expression ‘place where the harmful event occurred’ in Article 5(3) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters as amended by the Convention . .
CitedAllen v Times Newspapers Ltd QBD 15-May-2019
‘(1) At common law, a statement is defamatory of the claimant if, but only if, (a) it imputes conduct which would tend to lower the claimant in the estimation of right-thinking people generally, and (b) the imputation crosses the common law . .
CitedeDate Advertising GmbH v X ECJ 25-Oct-2011
ECJ (Grand Chamber) Regulation (EC) No 44/2001 – Jurisdiction and the enforcement of judgments in civil and commercial matters – Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ – Directive . .
CitedBolagsupplysningen and Ilsjan (Area of Freedom, Security and Justice – Judicial Cooperation In Civil Matters Area of Freedom, Security and Justice : Judgment) ECJ 17-Oct-2017
. .
CitedEuroeco Fuels (Poland) Ltd and Others v Szczecin and Swinoujscie Seaports Authority Sa and Others CA 11-Nov-2019
Appeal from order declining jurisdiction.
Lewison LJ pointed out: ‘So far as the question of irreconcilable judgments is concerned, I wish to reserve my opinion for a case in which it matters. I simply make the following observations. Judgment . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Defamation

Updated: 01 November 2021; Ref: scu.647453

Land Berlin v Sapir And Others: ECJ 28 Nov 2012

lb_sapirECJ2012

ECJ Regulation (EC) No 44/2001 – Article 1(1) – Article 6(1) – Notion of ‘civil and commercial matter’ – Amount unduly paid by a public authority – Claim for repayment of the amount paid in judicial proceedings – Jurisdiction based on a factual connection – Closely connected claims – Defendant domiciled in a third country.

AG Trstenjak
C-645/11, [2012] EUECJ C-645/11, [2013] EUECJ C-645/11
Bailii, Bailii

European, Jurisdiction

Updated: 01 November 2021; Ref: scu.466397

Leventis and Vafias v Malcon Navigation Co Ltd and another: ECJ 28 Jun 2017

Third Party not bound by jurisdiction clause

ECJ (Judicial Cooperation In Civil Matters Area of Freedom, Security and Justice : Judgment) Language of the case: Greek. for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation (EC) No 44/2001- Article 23 – Jurisdiction clause – Jurisdiction clause in a contract between two companies – Action for damages – Joint and several liability of representatives of one of those companies for tortious acts – Ability of the representatives to rely upon that clause

A Prechal P
ECLI:EU:C:2017:497, [2017] WLR(D) 428, [2017] EUECJ C-436/16
WLRD, Bailii
Council Regulation (EC) No 44/2001 23
European

Jurisdiction, Contract, Company

Updated: 01 November 2021; Ref: scu.588732

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

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

Lord Phillips, President, Lady Hale, Lord Brown, Lord Judge, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Sir Anthony Hughes
[2012] UKSC 35, UKSC 2010/0182, [2012] 5 Costs LO 668, [2012] 3 WLR 379, [2012] WLR(D) 238
Bailii, Bailii Summary, SC Summary, SC
Proceeds of Crime Act 2002, 1990 Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime
England and Wales
Citing:
At First instanceSerious Organised Crime Agency v Perry and Others Admn 30-Jul-2009
The respondents sought to have set aside a world wide asset freezing and associated orders obtained by SOCA against them. They said that the Court had no jurisdiction over them, and that the Agency was guilty of wilful non-disclosure. They first . .
CitedRegina v Cuthbertson HL 1981
With ‘considerable regret’, the power of forfeiture and destruction conferred on the court by section 27 of 1971 Act did not apply to offences of conspiracy, and could not be used to provide a means of stripping professional drug-traffickers of the . .
CitedGovernment of the Republic of Spain v National Bank of Scotland SCS 24-Feb-1939
Lord Justice-Clerk Aitchison considered a provision claiming extra territorial effect, and said: ‘such ‘decrees’ of a foreign country as purport to have extra-territorial effect, and to attach property in a subject situated, and at a time when it is . .
CitedSociete Eram Shipping Company Ltd v Compagnie International De Navigation and Others CA 7-Aug-2001
Judgment creditors obtained a garnishee order nisi, but the bank objected to the order being made absolute. The account was in Hong Kong, where there was a real danger, that the law would not relieve them of their obligation to the account holders . .
CitedSociete Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
CitedPattni v Ali and Another PC 20-Nov-2006
(Isle of Man (Staff of Government Division)) The Board considered the possibility of extra-territorial jurisdiction over property.
Held: It should generally be expected that an order having the effect of transferring a real right of ownership . .
Appeal fromPerry and Others v Serious Organised Crime Agency CA 18-May-2011
The court was asked ‘Does a court in England and Wales have the power under Part 5 of the Proceeds of Crime Act 2002 to make a recovery order in favour of the trustee for civil recovery in respect of recoverable property outside this jurisdiction, . .
Appeal fromSerious Organised Crime Agency v Perry and Others CA 29-Jul-2010
The court heard appeals against disclosure orders made under the 2002 Act. The appellants argued that neither the offence, nor the assets nor the appellants themselves were within the jurisdiction. . .
CitedKing v Director of the Serious Fraud Office HL 18-Mar-2009
Authorities in South Africa sought assistance in recovering what they said were assets acquired in England and Scotland with the proceeds of crime in South Africa, and in particular a restraint order, an assets declaration and other investigative . .
Appeal FromSerious Organised Crime Agency v Perry Admn 28-Jun-2010
The first defendant’s bankers had heard of his conviction for fraud in Israel and had notified his and associated bank accounts to SOCA. He now appealed against ex parte world wide asset freezing (PFO) and disclosure orders (DO) made againt him. The . .

Cited by:
CitedWaya, Regina v SC 14-Nov-2012
The defendant appealed against confiscation orders made under the 2002 Act. He had bought a flat with a substantial deposit from his own resources, and the balance from a lender. That lender was repaid after he took a replacement loan. He was later . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, International, Jurisdiction

Updated: 01 November 2021; Ref: scu.463144

Youell and others v La Reunion Aerienne and others: CA 11 Mar 2009

The parties disputed whether the court had jurisdiction. The defendant insurer argued that parallel issues had been referred to arbitration in France.
Held: the claim was outside the range of the arbitration agreement, and a stay, which would have been the appropriate remedy was not granted.

Lord Justice Rix, Lord Justice Jacob and Lord Justice Lawrence Collins
[2009] EWCA Civ 175
Bailii, Times
Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the Brussels I Convention
England and Wales
Citing:
Appeal fromYouell and others v La Reunion Aerienne and others ComC 22-Oct-2008
. .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, European

Updated: 01 November 2021; Ref: scu.317958

In Re N (Children): SC 13 Apr 2016

The Court considered whether the future of two little girls, aged four and two years, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and lived all their lives here. But their parents were Hungarian and the children were nationals of Hungary, not the United Kingdom.
Held: The appeal succeeded, and the order for transfer set aside. Not only did the judge take the wrong approach to the ‘best interests’ question, he also left out of account some crucial factors in deciding upon the ‘better placed’ question: ‘what is encompassed in the ‘best interests’ requirement? The distinction drawn in In re I remains valid. The court is deciding whether to request a transfer of the case. The question is whether the transfer is in the child’s best interests. This is a different question from what eventual outcome to the case will be in the child’s best interests. The focus of the inquiry is different, but it is wrong to call it ‘attenuated’. The factors relevant to deciding the question will vary according to the circumstances. It is impossible to be definitive. But there is no reason at all to exclude the impact upon the child’s welfare, in the short or the longer term, of the transfer itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child’s best interests. It is deciding whether it is in the child’s best interests for the court currently seised of the case to retain it or whether it is in the child’s best interests for the case to be transferred to the requested court.’
The court considered the differences between articles 12 and 15: ‘the requirement in article 12.3 is quite different from the requirement in article 15.1. In article 12.3 (as also in article 12.1) it is the court which is deciding whether to accept jurisdiction, which it would not otherwise have, that has to decide whether to do so is in the best interests of the child. This is roughly equivalent to the requirement in article 15.5 that the court which is requested to take the case (here the Hungarian court) must consider that it is the best interests of the child to accept jurisdiction. Article 15.1 is directed towards the court which already has jurisdiction in an existing case. It imposes an additional requirement that the transferring court considers this to be in the best interests of the child. Obviously, the considerations applicable when deciding whether to relinquish jurisdiction may be somewhat different from the considerations applicable when deciding whether to accept it.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath
[2016] UKSC 15, [2016] WLR(D) 190, [2016] Fam Law 681, [2017] AC 167, [2016] 1 FLR 1082, [2016] 3 FCR 394, [2016] 2 WLR 1103, UKSC 2016/0013
Bailii, WLRD, Bailii Summary, SC, SC Summary
England and Wales
Citing:
At FCJ and E (Children: Brussels II Revised: Article 15) FC 11-Nov-2014
The local authority applied to the court for care orders and placement orders in respect of two young girls. The parents opposed the local authority’s applications. The mother was Hungarian. The father was Hungarian/Roma. The mother applied under . .
CitedIn re J (A Child: Brussels II revised: Article 15: Practice and Procedure) FC 29-Oct-2014
Application to transfer children proceedings to anoher member state (Hungary)
Held: The order should be made. A Hungarian court might better be able to facilitate contact with siblings living there. . .
At CARe N (Children : Adoption: Jurisdiction) CA 2-Nov-2015
Appeal against care and placement order proceedings in relation to two Hungarian children, The orders were for the transfer of the case to Hungary.
Held: The appeal was dismissed. As to Article 15, the Court considered: What are the . .
CitedIn Re I (A Child) SC 1-Dec-2009
The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. . .
CitedIn Re T (A Child: Article 15 of B2R) ((Care Proceedings: Request to Assume Jurisdiction) FD 13-Mar-2013
A pregnant 17 year old Slovakian girl ran away from a children’s home in Slovakia and gave birth to the baby in the UK.
Held: Although the court decided to transfer the case to Slovakia under article 15, Mostyn J said: ‘It is not disputed that . .
CitedSomafer Sa v Saar-Ferngas Ag ECJ 22-Nov-1978
ECJ 1. The Convention of 27 September 1968 must be interpreted having regard both to its principles and objectives and to its relationship with the treaty. The question whether the words and concepts used in the . .
CitedCriminal proceedings against Lindqvist ECJ 6-Nov-2003
Mrs Lindqvist had set up an internet site for her local parish containing information about some of her colleagues in the parish. She gave names, jobs, hobbies and in one case some of the person’s employment and medical details. The Court decided . .
CitedRe CB (A Child) CA 6-Aug-2015
P was the child of now separated women. P was born in the UK but taken by one parent to Pakistan. The other parent now appealed from refusal of her request for the court to exercise its inherent jurisdiction or wardship to support her application . .
CitedOrdre des barreaux francophones and Other v Conseil des Minsitres (Conseil des barreaux de l’Union eurpeenne and Ordre des avocats du barreau de Liege, interveners ECJ 26-Jun-2007
Bodies representing lawyers complained that the anti-money laundering Directive infringed their capacity to provide confidential advice to their clients, in turn infringing their right to a fair trial.
Held: The complaint failed. Insofar as . .

Cited by:
See AlsoChild and Family Agency v D (RPD Intervening) ECJ 27-Oct-2016
ECJ Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – . .

Lists of cited by and citing cases may be incomplete.

Children, Jurisdiction, European

Leading Case

Updated: 31 October 2021; Ref: scu.562188

Watt (Formerly Carter) v Ahsan: HL 21 Nov 2007

The claimant was a Pakistani member of the Labour Party. He had sought selection as parliamentary candidate, but allegations had been made about behaviour of members in the Pakistani community in his ward and the local party had been suspended. A candidate was deliberately chosen who was not a member of that community. The claimant alleged racial discrimination, and began an action in the employment tribunal. After the tribunal had accepted jurisdiction, a later decision indicated that jurisdiction should have been declined. Nevertheless the tribunal rejected his claim.
Held: The action should indeed have been brought in the County Court. Section 12 did not apply to the party as it was not awarding a qualification or authorisation. Section 24 however did apply. The decision not to select candidates of Paksistani origin was simple discrimination, of the same sort as not employng a black member of staff because ‘customers will not like it.’ The issue is not whether there is a good reason for discrimination, but whether there has been discrimination.
A decision of the Employment Appeal Tribunal as to the existence of its own jurisdiction created an issue estoppel between the parties to it.

Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Carswell, ord Brown of Eaton-under-Heywood
[2007] UKHL 51, Times 27-Nov-2007, [2008] 1 AC 696, [2008] ICR 82, [2008] 1 All ER 869, [2008] IRLR 243, [2008] 2 WLR 17
Bailii, HL
Race Relations Act 1976 12 24
England and Wales
Citing:
See AlsoTom Sawyer and All Other Members of the Labour Party v R Ahsan EAT 5-May-1999
EAT Race Discrimination – Jurisdiction . .
See AlsoSawyer and others v Ahsan EAT 14-Jul-1999
. .
At EATCarter (Formerly McDonagh (General Secretary of, and on Behalf the Labour Party v Ahsan EAT 11-Feb-2004
EAT Practice and Procedure – Appellate jurisdiction . .
CitedAli and Another v Triesman (McDonagh) CA 7-Feb-2002
The applicants sought selection as candidates for the Labour Party. The respondent asserted that such issues were not ones of employment, and therefore not covered by the Act, and appealed a finding of the EAT against them.
Held: Sawyer was . .
Appeal fromAhsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .
CitedCarter v Ahsan EAT 21-Jun-2004
The claimant alleged discrimination in the failure to select him as a candidate. As a Pakistani, he was excluded by a decision not to select such a candidate for this constituency after allegations (later shown false) had been made against that . .

Cited by:
CitedSugar v British Broadcasting Corporation and Another HL 11-Feb-2009
The Corporation had commissioned a report as to its coverage of Middle East issues. The claimant requested a copy, and the BBC refused saying that the report having been obtained for its own journalistic purposes, and that it was not covered by the . .
CitedStockton on Tees Borough Council v Aylott EAT 11-Mar-2009
EAT JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability . .
DistinguishedDallah Estates and Tourism Holding Company v Ministry of Religious Affairs, Government Of Pakistan CA 20-Jul-2009
The claimant sought to enforce an international arbitration award against the defendant in respect of the provision of accommodation for Hajj pilgrims. A without notice order had been made to allow its enforcement, but that had been set aside.
CitedFoster v Bon Groundwork Ltd EAT 17-Mar-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Jurisdiction

Leading Case

Updated: 31 October 2021; Ref: scu.261585

Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others: CA 23 Oct 2006

Foreign Public Law Not Enforceable Here

The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were not justiciable here. Public laws, like penal laws, may not be enforced directly or indirectly in the English Courts. The court approved the statement: ‘a foreign State cannot enforce in England such rights as are founded upon its peculiar powers of prerogative. ‘ The critical question is whether in bringing a claim, a claimant is doing an act which is of a sovereign character or which is done by virtue of sovereign authority; and whether the claim involves the exercise or assertion of a sovereign right. If so, then the court will not determine or enforce the claim. On the other hand, if in bringing the claim the claimant is not doing an act which is of a sovereign character or by virtue of sovereign authority and the claim does not involve the exercise or assertion of a sovereign right and the claim does not seek to vindicate a sovereign act or acts, then the court will both determine and enforce it. However, the claims pleaded were not founded on the claimants’ property interests. The alleged losses arose as a result of decisions taken by the claimants to protect the state and citizens of Equatorial Guinea. The defence of a state and its subjects is a paradigm function of government. The allegations of assault in that any threat was not immediate.

Sir Anthony Clarke MR, Lord Justice Dyson and Lord Justice Moses
Times 27-Oct-2006, [2006] EWCA Civ 1370, [2007] 2 WLR 1062
Bailii
England and Wales
Citing:
CitedEmperor of Austria v Day and Kossuth 1861
The defendants had printed banknotes in London. Kossuth intended to use the notes in Hungary after overthrowing the Emperor of Austria by revolution. The Emperor obtained an injunction restraining the defendants from continuing to manufacture them. . .
CitedRCA Corporation v Pollard CA 1982
The illegal activities of bootleggers who had made unauthorised recordings of concerts, diminished the profitability of contracts granting to the plaintiffs the exclusive right to exploit recordings by Elvis Presley.
Held: The defendant’s . .
CitedAttorney-General of New Zealand v Ortiz ChD 1984
The New Zealand government sought the return of a Maori carving which had been bought by the defendant after it had been illegally exported from New Zealand. The defendant replied that an English court should not itself enforce a foreign penal . .
CitedAttorney-General of New Zealand v Ortiz CA 2-Jan-1982
The defendant was to sell a Maori carving which had been unlawfully exported from New Zealand. The Attorney General sought its recovery and an injunction to prevent its sale, relying on the Historical Articles Act 1962. The judge had ordered its . .
CitedAttorney-General of New Zealand v Ortiz HL 3-Jan-1983
The Attorney General had sought the return of a valuable Maori carving which had been illegally exported from New Zealand and was to be sold by the defendant. He appealed against a finding that the provision (s12 Historical Articles Act 1962 of New . .
CitedGovernment of India v Taylor HL 1955
The Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax, including capital gains tax, which arose on the sale of the . .
CitedRe State of Norway’s Application (No 2) HL 1989
The government of Norway sought evidence here to support a claim for tax in Norway.
Held: The State of Norway’s application requesting the oral examination of two witnesses residing in England did not fall foul of the Revenue rule. A claim . .
CitedKingdom of Spain v Christie, Manson and Woods Ltd 1986
The court questioned the basis of the cause of action asserted in Austria -v- Day. . .
CitedThe President of the State of Equatorial Guinea and Another v Bank of Scotland International PC 27-Feb-2006
(Guernsey) Lord Bingham said: ‘Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straight forward and available means of finding out, then it will not be reasonable to achieve that end by . .
CitedPowell and Another v Boladz and others QBD 19-Sep-2003
. .
CitedKing of the Hellenes v Brostrom 1923
Rowlatt J said: ‘It is perfectly elementary that a foreign government cannot come here — nor will the courts of other countries allow our government to go there — and sue a person found in that jurisdiction for taxes levied and which he is . .
CitedGovernment of India v Taylor HL 1955
The Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax, including capital gains tax, which arose on the sale of the . .
CitedPeter Buchanan Limited and Macharg v McVey 1954
(Supreme Court of Ireland) The plaintiff was a company registered in Scotland put into compulsory liquidation by the revenue under a substantial claim for excess profits tax and income tax. The liquidator was really a nominee of the revenue. The . .
CitedWilliams and Humbert Ltd v W and H Trade Marks (Jersey) Ltd HL 1986
There had been an expropriation by Spanish decrees of shares in a Spanish company whose English subsidiary had rights in trade marks which it had sold to a Jersey company. The Spanish and English companies sought certain relief in relation to the . .
CitedUnited States of America v Inkley CA 1989
The court allowed a third category of case (after penal and revenue) of provisions of foreign law where an English court would decline to enforce a provision: ‘that the fact that the right, statutory or otherwise, is penal in nature will not deprive . .
CitedAttorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd 1988
(High Court of Australia) The A-G sought to prevent publication in Australia of the book Spycatcher, saying that it had been written by a former member of the British intelligence service and that it was derived from confidential material.
CitedAttorney-General for the United Kingdom v Wellington Newspapers Ltd 1988
(New Zealand) The British government sought to prevent the publication in New Zealand of a book (‘Spycatcher’) written by a retired secret service officer saying that it was based in part on information received by him in confidence.
Held: The . .
CitedHuntington v Attrill HL 1893
In deciding how to characterise a claim, the court must examine its substance, and not be misled by appearances. The territorial principle requires attention to be paid to the place where the act was committed. The court defined what was meant by a . .
CitedSecretary of State for the Home Department v International Transport Roth Gmbh and others CA 22-Feb-2002
The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The . .
CitedStephens v Myers CCP 17-Jul-1830
Assault by Words Requires Means to Carry Out
In a turbulent parish council meeting, the meeting voted to have the defendant ejected. He refused, and advanced toward the chairman waving his clenched fist and saying he would rather throw him from the chair. He was stopped before getting within . .
CitedCobbett v Grey 1849
A prisoner complained that he had been falsely imprisoned in a part of a prison in which he could not lawfully be confined. . .
CitedCollins v Wilcock QBD 1984
The defendant appealed against her conviction for assaulting a police constable in the execution of his duty. He had sought to caution her with regard to activity as a prostitute. The 1959 Act gave no power to detain, but he took hold of her. She . .
CitedRegina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .
CitedThomas v NUM 1986
Threats made by pickets to miners going in to work were not an assault because the pickets had no capacity to put into effect their threats of violence whilst they were held back from the vehicles carrying the workers. . .
Appeal fromMbasogo, President of the State of Equatorial Guinea and others v Logo Ltd and others QBD 21-Sep-2005
The court was asked whether a crime, which was not an actionable tort, constituted unlawful means for the purposes of the tort of conspiracy to injure by unlawful means. . .
See AlsoMbasogo and Another v Logo Ltd and others CA 5-Apr-2006
. .

Cited by:
CitedTotal Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
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 . .
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 . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Jurisdiction

Leading Case

Updated: 31 October 2021; Ref: scu.245561

Elefanten Schuh Gmbh v Pierre Jacqmain: ECJ 24 Jun 1981

ECJ 1. Article 18 of the convention of 27 September 1968 on Jurisdiction and the enforcement of judgments in civil and commercial matters applies even where the parties have by agreement designated a court which is to have jurisdiction within the meaning of article 17 of that convention.
2. Article 18 of the Convention of 27 september 1968 must be interpreted as meaning that the rule on jurisdiction which that provision lays down does not apply where the defendant not only contests the court’s jurisdiction but also makes submissions on the substance of the action, provided that if the challenge to jurisdiction is not preliminary to any defence as to the substance it does not occur after the making of the submissions which under national procedural law are considered to be the first defence addressed to the court seised.
3. Since the aim of article 17 of the Convention is to lay down the formal requirements which agreements conferring jurisdiction must meet, contracting states are not free to lay down formal requirements other than those contained in the Convention. When those rules are applied to provisions concerning the language to be used in an agreement conferring jurisdiction they imply that the legislation of a contracting state may not allow the validity of such an agreement to be called in question solely on the ground that the language used is not that prescribed by that legislation.

[1982] 3 CMLR 1, R-150/80, [1981] EUECJ R-150/80, [1981] ECR 1671
Bailii
Cited by:
CitedWinkler and Another v Shamoon and Others ChD 15-Feb-2016
The claimants sought a declaration as against the residuary beneficiaries (wife and daughter) under the will, saying that the claimants had a beneficial interest in company shares within the estate. The defendants fild acknowledgments of service but . .

Lists of cited by and citing cases may be incomplete.

European, Jurisdiction

Leading Case

Updated: 31 October 2021; Ref: scu.214991

House of Spring Gardens v Waite: CA 1991

The principle of abuse of process is capable of applying where the relevant earlier proceedings have taken place before a foreign court (Ireland). In this case the defendants argued that the judgment obtained in Ireland had been obtained fraudulently. The defendant was estopped from mounting what was in effect a collateral challenge to the decision of Egan J. It was an abuse of process.
Stuart Smith LJ said: ‘The question is whether it would be in the interests of justice and public policy to allow the issue of fraud to be litigated again in this court, it having been tried and determined by Egan J. in Ireland. In my judgment it would not; indeed, I think it would be a travesty of justice. Not only would the plaintiffs be required to re-litigate matters which have twice been extensively investigated and decided in their favour in the natural forum, but it would run the risk of inconsistent verdicts being reached, not only as between the English and Irish courts, but as between the defendants themselves. The Waites have not appealed Sir Peter Pain’s judgment, and they were quite right not to do so. The plaintiffs will no doubt proceed to execute their judgment against them. What could be a greater source of injustice, if in years to come, when the issue is finally decided, a different decision is in Mr. McLeod’s case reached? Public policy requires that there should be an end of litigation and that a litigant should not be vexed more than once in the same cause.’
Lord Chief Justice Cumming-Bruce said: ‘The court has the power (and, I would add, the duty) to take such steps as are practicable upon an application of the plaintiff to procure that where an order has been made that the defendants identify their assets and disclose their whereabouts, such steps are taken as will enable the order to have effect as completely and successfully as the powers of the court can procure.’
and –
‘The purpose of the cross-examination would be to elicit with greater particularity the extent and the whereabouts of the defendants’ assets. The background of applications for Mareva injunctions is often a situation in which it is urgently necessary for the court to intervene in order to assist the plaintiff to prevent the defendant from frustrating the object of the proceedings. In such a situation an order to cross-examine upon an unsatisfactory affidavit already filed is one of the courses that the court has jurisdiction to take. When such cross-examination takes place it is entirely a matter for the judge presiding on cross-examination properly to control it.’ . . And further noted: Mr Lyons Q.C. on behalf of the respondent Mr Garcia submitted that courts are slow to make such orders. I am not sure that that is correct, although I acknowledge that the defendants need protection from being treated as ‘debtors in advance’ as Lord Ackner acknowledged in A.J. Bekhor and Company Limited v. Bilton [1981] EWCA Civ 8; [1981] Q.B. 923, 942; [1981] 1 Lloyd’s Rep. 491, 500. Also fishing expeditions must be prevented if that seems to be the object of the exercise. However it seems to me that the matter is at large and that it will depend upon the facts and circumstances of each particular case whether the exercise is unduly oppressive, unnecessary, insufficiently relevant, or whether the affidavit plainly requires better exposition that the deponent is prepared to give without the stimulus of cross-examination.’
Stuart Smith LJ, Lord Chief Justice Cumming-Bruce
[1991] 1 QB 241
England and Wales
Citing:
ApprovedNana Ofori Atta (II) v Nana Abu Bonsra (II) PC 1958
(West Africa) Care must be taken in respect of the notion that merely standing by and waiting to see the outcome of a case in which the non-party has an interest, without more, involves an abuse of process. The parties now disputed title to land, . .
CitedWytcherley v Andrews 1871
Lord Penzance said: ‘There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, . .

Cited by:
CitedMotorola Credit Corporation v Uzan and others (No 2) CA 12-Jun-2003
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
CitedWiltshire v Powell and others CA 7-May-2004
The claimant sought a declaration as to the ownership of an aircraft. Saying he had bought it in good faith from E H and S, who in turn similarly claimed to have bought it from Ebbs. The defendant had obtained a judgment that he was owner as against . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedThe Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
CitedJSC BTA Bank v Mukhtar Ablyazov and Others QBD 16-Oct-2009
Application by the claimants for an order that the first defendant attend for cross-examination upon his affidavits as to assets and as to his answers to questions posed. . .
CitedXX and Others v YY and Others ChD 2-Jul-2021
The first defendant applies for an order that the claimants are not entitled to pursue legal action against his lawyers in respect of funds over which the claimants claim a proprietary interest and paid to the first defendant’s lawyers as legal fees . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.183512

Smith and Others v The Ministry of Defence: SC 19 Jun 2013

The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the soldiers had been found to be outwith the jurisdiction, and by the respondent that it owed a duty of care within a battlefield situation.
Held: The soldiers were within the jurisdiction, and the duty of care was owed. The cases could proceed to trial.
Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson, Lord Carnwath
[2013] UKSC 41, [2013] WLR(D) 239, [2014] AC 52, [2013] 4 All ER 794, [2014] 1 AC 52, [2013] 3 WLR 69, [2013] HRLR 27, [2014] PIQR P2
Bailii, Bailii Summary, SC, SC Summary, WLRD
European Convention on Human Rights 2, Armed Forces Act 2006 367(1)
England and Wales
Citing:
CitedGentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedBankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
CitedIssa And Others v Turkey ECHR 16-Nov-2004
Accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
CitedAl-Skeini and Others v The United Kingdom ECHR 7-Jul-2011
(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the . .
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.
CitedDrozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
CitedWM v Denmark ECHR 14-Oct-1992
(Commission) The applicant lived in the German Democratic Republic (‘DDR’). He wished to move to the Federal Republic of Germany, but the DDR authorities refused him permission. At 1115 on 9 September 1988, together with 17 other DDR citizens, he . .
CitedGentilhomme, Schaff-Benhadji et Zerouki v France ECHR 14-May-2002
(French Text) In 1962 France and Algeria had signed a statement of principle on cultural co-operation which provided inter alia for French children residing in Algeria, including those having dual French and Algerian nationality under French law, to . .
CitedAndrejeva v Latvia ECHR 18-Feb-2009
(Grand Chamber) The concept of jurisdiction for the purposes of article 1 reflects that term’s meaning in public international law and is closely linked to the international responsibility of the state concerned. . .
CitedHirsi Jamaa v Italy ECHR 23-Feb-2012
The court was asked whether the asylum seekers were subject to the jurisdiction of Italy while they were detained on the ship flying the Italian flag.
Held: The court need not concern itself with the question whether the state is in a position . .
CitedEdwards and Others v The Attorney General of Canada PC 18-Oct-1929
(Canada) A constitutional Act act should not be interpreted narrowly or technically. Rights in conventions, treaties and like instruments are interpreted like a ‘living tree capable of growth and expansion within its natural limits.’ (Lord Sankey . .
CitedW v Ireland ECHR 28-Feb-1983
Admissibility – Commission – Article 1 of the Convention : The High Contracting Parties are bound to guarantee the rights and freedoms set forth in the Convention in connection with all acts or omissions of their agents, even where such public . .
CitedVearncombe v Germany and United Kingdom ECHR 1989
. .
CitedLoizidou v Turkey ECHR 23-Mar-1995
(Preliminary objections) The ECHR considered the situation in northern Cyprus when it was asked as to Turkey’s preliminary objections to admissibility: ‘although Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .

Cited by:
CitedKennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
CitedRobinson v Chief Constable of West Yorkshire Police SC 8-Feb-2018
Limits to Police Exemption from Liability
The claimant, an elderly lady was bowled over and injured when police were chasing a suspect through the streets. As they arrested him they fell over on top of her. She appealed against refusal of her claim in negligence.
Held: Her appeal . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.510917

B v B (Residence: Imposition of conditions): CA 28 May 2004

The court was asked whether it had jurisdiction to hear applications with regard to a child removed from Scotland. The father lived in Scotland, and the mother and child in England. The child had been habitually resident in Scotland and removed to England without the father’s consent. The father sought transfer of the proceedings to Scotland.
Held: The county court had not had jurisdiction. However the child had lived for more than a year in England before the mother began proceedings. All the section did was to deem a child to be resident in the country from which he had been taken for a period of one year. It was wrong to suggest that the proceedings once tainted with unlawfulness must continue to be so. The father’s appeal was rejected.
Otherwise In re B (Court’s Jurisdiction)
Lady Justice Arden DBE and Lord Justice Wall
[2004] EWCA Civ 681, Times 07-Jul-2004, [2004] 2 FLR 741
Bailii
Family Law Act 1996, Child Abduction and Custody Act 1985
England and Wales
Citing:
CitedHadkinson v Hadkinson CA 1952
The courts adopt an approach similar to that of the United States courts where there has been a significant contempt on the part of a party to litigation. Denning LJ said: ‘Those cases seem to me to point the way to the modern rule. It is a strong . .
CitedM v M (Abduction: England and Scotland) CA 1997
A couple went to live in Scotland with their children. The father was Scottish: the mother English. The mother left the family home and took the children to England without the father’s knowledge, and obtained an ex-parte residence order and a . .
CitedIsaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
CitedJohnson v Walton 1990
There was a continuing obligation to obey a court order until it was discharged. . .

Cited by:
CitedMajera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.197803