Category: Jurisdiction

Metall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc and another: QBD 29 Mar 1988

The plaintiff had suffered damage when given negligent advice. It obtained a judgment but the company became insolvent, and it now sought to sue the US parent company in conspiracy. The defendant said that to establish conspiracy it was necessary that the dominant aim had been to cause injury or loss to the plaintiff.
Held: The defence failed. It was based on a misinterpretation of Lonhro.

Judges:

Gatehouse J

Citations:

[1990] QB 391

Links:

Gazette

Jurisdiction:

England and Wales

Citing:

Applied – Lonrho Ltd v Shell Petroleum Co Ltd (No 2) HL 1-Apr-1981
No General Liability in Tort for Wrongful Acts
The plaintiff had previously constructed an oil supply pipeline from Beira to Mozambique. After Rhodesia declared unilateral independence, it became a criminal offence to supply to Rhodesia without a licence. The plaintiff ceased supply as required, . .

Cited by:

Appeal from – Metal 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, . .
Appeal from – Metall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 1990
There was a complicated commercial dispute involving allegations of conspiracy. A claim by the plaintiffs for inducing or procuring a breach of contract would have been statute-barred in New York.
Held: Slade LJ said: ‘The judge’s approach to . .
Cited – Morin 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 . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Jurisdiction

Updated: 26 March 2022; Ref: scu.268056

Dennis v Tag Group Ltd and Others: ChD 10 Apr 2017

The question for the Court is whether the First and Second Respondents, who are resident outside the jurisdiction, have submitted to the jurisdiction of England and Wales by participating in and resisting an injunction application.

Judges:

Briggs R

Citations:

[2017] EWHC 919 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Jurisdiction

Updated: 25 March 2022; Ref: scu.583679

Regina v Grossman: CA 1981

An application was made against Barclays Bank in London to obtain inspection of an account held at a branch of the bank in the Isle of Man.
Held: The Civil Division of the Court of Appeal which determined the application was later held to have lacked jurisdiction to do so (Bonalumi) but no doubt was thrown on the opinions expressed at pages 308-309 of the judgment. The Manx branch was a different entity from the bank’s head office in London and any order in respect of the production of the books should be made by the Manx court and not the English court. Otherwise there was a risk of jurisdictional conflict which must be avoided.

Judges:

Lord Denning MR, Shaw and Oliver LJJ

Citations:

(1981) 73 Cr App R 302

Jurisdiction:

England and Wales

Citing:

Cited – Ex parte Alice Woodhall CA 8-May-1888
Extradition proceedings are in their nature criminal proceedings. Lindley LJ said: ‘Can we say that the application in the present case is not an application in a criminal cause or matter? I think that in substance it certainly is. Its whole object . .

Cited by:

Not Followed – Bonalumi v Secretary of State for the Home Department CA 1985
In the course of extradition proceedings, an order was obtained under the 1879 Act. The defendant sought to appeal against the order, and applied to the Court of Appeal.
Held: The procedure under the 1879 Act was in the course of criminal . .
Approved in part – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Approved – MacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation ChD 1986
A plaintiff in an English action had obtained an order against an American bank, served on its London office, requiring production of books and papers at its New York head office.
Held: The court pointed out the distinction between ‘personal . .
Cited – Mahme Trust v Lloyds TSB Bank plc ChD 29-Jul-2004
The claimant began an action in England. The defendant sought a stay, saying the appropriate forum was Switzerland.
Held: The defendant was a truly multi-national orgaisation and had branches in many countries. The choice of forum belongs to . .
Lists of cited by and citing cases may be incomplete.

Crime, Jurisdiction

Updated: 23 March 2022; Ref: scu.183546

Guaranty Trust Co of New York v Hannay and Co: CA 1915

A claimant does not need to have a subsisting cause of action against a defendant before the court will grant a claimant a declaration. The court considered the ambiguity in the meaning of the word ‘jurisdiction’: ‘The first and, in my opinion, the only really correct sense of the expression that the Court has no jurisdiction is that it has no power to deal with and decide the dispute as to the subject matter before it, no matter in what form or by whom it is raised. But there is another sense in which it is often used, i.e., that, although the Court has power to decide the question it will not according to its settled practice do so except in a certain way and under certain circumstances.’ An unsuccessful attack was mounted on the vires of Ord 25 r 5.
Pickford LJ said: ‘I think therefore that the effect of the rule is to give a general power to make a declaration whether there be a cause of action or not, and at the instance of any party who is interested in the subject matter of the declaration.’ and ‘The first and, in my opinion, the only really correct sense of the expression that the Court has no jurisdiction is that it has no power to deal with and decide the dispute as to the subject-matter before it, no matter in what form or by whom it is raised. But there is another sense in which it is often used, i.e., that, although the Court has power to decide the question it will not according to its settled practice do so except in a certain way and under certain circumstances.’
Bankes LJ: ‘It is essential, however, that a person who seeks to take advantage of the rule must be claiming relief. What is meant by this word relief? When once it is established, as I think it is established, that relief is not confined to relief in respect of a cause of action it seems to follow that the word itself must be given its fullest meaning. There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant or contrary to the accepted principles upon which the court exercises its jurisdiction. Subject to this limitation I see nothing to fetter the discretion of the court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the courts to the needs of suitors I think the rule should receive as liberal a construction as possible.’

Judges:

Pickford LJ, Bankes LJ

Citations:

[1915] 2 KB 536, [1914-15] All ER 24, 113 LT 98, 84 LJKB 1465

Jurisdiction:

England and Wales

Cited by:

Approved – Garthwaite v Garthwaite CA 1964
The court discussed what was constitutive jurisdiction: ‘The ‘jurisdiction’ of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process . .
Cited – Fourie 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 . .
Cited – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Cited – SRJ v Person(s) Unknown (Author and Commenters of Internet Blogs) QBD 10-Jul-2014
The claimant sought an order for the disclosure by his solicitor of the identity of the author of an internet blog publishing critical material which, the claimant said, was its confidential information. The defendant’s solicitor had failed to . .
Cited – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Updated: 23 March 2022; Ref: scu.248201

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

The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating by attachment against the property of the judgment debtor. The property so attached is the chose in action represented by the debt of the third party to the judgment debtor. On the making of the interim order that chose in action is bound, frozen, attached or charged in the hands of the third party. Subject to any monetary limit which may be specified in the order, the third party is not entitled to deal with that chose in action by making payment to the judgment debtor or any other party at his request. When a final or absolute order is made the third party is obliged (subject to any specified monetary limit) to make payment to the judgment creditor and not to the judgment debtor, but the debt of the third party to the judgment debtor is discharged pro tanto. That discharge is central to the jurisdiction, and an order cannot be made where a discharge is not obtained.
Lord Hoffmann said: ‘it is a general principle of international law that one sovereign state should not trespass upon the authority of another, by attempting to seize assets situated within the jurisdiction of the foreign state or compelling its citizens to do acts within its boundaries.’

Judges:

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough Lord Millett

Citations:

Times 13-Jun-2003, [2003] UKHL 30, Gazette 17-Jul-2003, [2003] 3 WLR 21, [2003] 3 All ER 465, [2003] 2 Lloyd’s Rep 405, [2003] ILPr 36, [2003] 2 All ER (Comm) 65, [2004] 1 AC 260, [2003] 1 CLC 1163, [2003] 2 LLR 405

Links:

House of Lords, Bailii

Statutes:

Civil Jurisdiction and Judgments Act 1982, Civil Procedure Rules 72

Jurisdiction:

England and Wales

Citing:

Cited – Re General Horticultural Company, Ex parte Whitehouse ChD 1886
Wills, to whom a sum had been allowed in a winding up for work done for the liquidator, charged the amount due to him as security for the payment of three debts, the total amount of which exceeded the sum due to him from the company. Notice of the . .
Cited – Rogers v Whiteley HL 1892
Discussing an order attaching all debts, the House held: The effect of an order attaching ‘all debts’ owing or accruing due by [the garnishee] to the judgment debtor is to make the garnishee custodier for the Court of the whole funds attached; and . .
Cited – Choice Investments Ltd v Jeromnimon CA 1981
‘[Service of the order nisi] prevents the bank from paying the money to its customer until the garnishee order is made absolute, or is discharged . . The money at the bank is then said to be ‘attached’ . . But the ‘attachment’ is not an order to . .
Cited – Galbraith v Grimshaw and Baxter CA 1910
A garnishee order nisi does not operate as a transfer of the property in the debt, but it is an equitable charge on it, and the garnishee cannot pay the debt to any one but the garnishor without incurring the risk of having to pay it over again to . .
Cited – Joachimson v Swiss Bank Corporation CA 1921
The service of the order nisi binds the debt in the hands of the garnishee – that is, it creates a charge in favour of the judgment creditor. No cause of action for non payment arises in respect of money standing on a current account until the . .
Cited – Ellis v M’Henry CCP 1871
A debt or liability arising in any country may be discharged by the laws of that country, and such a discharge, if it extinguishes the debt or liability, and does not merely interfere with the remedies or course of procedure to enforce it, will be . .
Cited – Martin v Nadel CA 17-May-1906
A garnishee order was sought in England against the London branch of a German bank to attach a balance owed to the judgment debtor by the Berlin branch of the bank.
Held: A garnishee order is of the nature of an execution, and is governed by . .
Cited – Deutsche Schachtbauund Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd HL 1990
The case concerned a garnishee order absolute made in respect of a debt situated in England, and the House was not called upon to consider the position where foreign debts were in issue.
Held: (Majority) The court has a ‘discretionary power to . .
Cited – Zoneheath Association Ltd v China Tianjin International European Community Economic and Tech Co-Op Corporation QBD 8-Apr-1994
A garnishee order was not available against a foreign account through a UK branch. The English court continued to exercise its discretion against the making of orders in relation to debts with a foreign situs . .
Approved in part – Regina v Grossman CA 1981
An application was made against Barclays Bank in London to obtain inspection of an account held at a branch of the bank in the Isle of Man.
Held: The Civil Division of the Court of Appeal which determined the application was later held to have . .
Cited – Bonalumi v Secretary of State for the Home Department CA 1985
In the course of extradition proceedings, an order was obtained under the 1879 Act. The defendant sought to appeal against the order, and applied to the Court of Appeal.
Held: The procedure under the 1879 Act was in the course of criminal . .
Cited – MacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation ChD 1986
A plaintiff in an English action had obtained an order against an American bank, served on its London office, requiring production of books and papers at its New York head office.
Held: The court pointed out the distinction between ‘personal . .
Cited – Babanaft International Co SA v Bassatne CA 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 . .
Cited – Baltic Shipping Co v Translink Shipping Ltd 1995
Further protection was afforded to those holding overseas assets of persons subject to Mareva injunctions. . .
Cited – Richardson v Richardson KBD 1927
A bank owed debts to a judgment debtor customer on accounts held both in London and in Africa. It was accepted that the former were subject to a garnishee order. The dispute concerned the latter.
Held: The bank is no doubt indebted to the . .
Cited – SCF Finance Co Ltd v Masri (No 3) 1987
The court accepted that in a case where the garnishee was not indebted within the jurisdiction that might be relevant to the exercise of the court’s discretion. Since, in this case, the debt in question was an English debt, the court’s jurisdiction . .
Cited – Rasu Maritima v Pertamina CA 1977
Foreign attachment as an interlocutory process is the origin of the Mareva injunction . .
Cited – Mayor etc of London v Cox HL 1867
The procedure called foreign attachment, on which the procedure under the 1854 Act was modelled, had existed by immemorial custom in London and other cities. The custom had been certified by the Recorder of London in 1481 but went back much further; . .
See Also – Societe Eram Shipping Company Ltd v Compagnie Internationale De Navigation and others ComC 23-Jan-2001
. .
See Also – Societe Eram Shipping Co Ltd v Compagnie Internationale De Navigation and others CA 6-Apr-2001
. .

Cited by:

Cited – 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 . .
Cited – BAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
Cited – FG Hemisphere Associates LLC v Republic of Congo QBD 9-Dec-2005
The claimant judgment creditor sought a third party payment order. An interim third party payment order had already been obtained byanother party. The claimant sought payment pari passu.
Held: The other party had priority once their interim . .
Cited – Masri 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 . .
Cited – Masri 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 . .
Cited – 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 . .
Cited – Taurus Petroleum Limited v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq SC 25-Oct-2017
The parties disputed their contract arrangements. It was referred to an arbitration in London, but applying Iraqi law. The respondent failed to meet the award made against it, and the claimant sought to enforce the award here by means of third party . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Civil Procedure Rules

Updated: 23 March 2022; Ref: scu.183382

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.’

Judges:

Sir James Munby P FD

Citations:

[2014] EWFC 35, [2015] 1 FLR 597

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

Cited – Ali Ebrahim v Ali Ebrahim (Queen’s Proctor intervening) 1983
. .
Cited – Sheldon 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 . .
Endorsed – Crowden 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. . .
Endorsed – Clutterbuck 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. . .
Cited – Wiseman 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. . .
Cited – Bater 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 . .
Cited – Lazarus 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 . .
Cited – Callaghan v Hanson-Fox (Andrew) FD 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 . .
Cited – Moynihan 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 . .
Cited – S 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 . .
Cited – Marinos 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 . .
Cited – Kearly v Kearly FD 2009
. .
Cited – Leake v Goldsmith FD 8-May-2009
. .
Cited – V 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. . .
Cited – Tan 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:

Cited – Grasso 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: 23 March 2022; Ref: scu.537216

Waterford Wedgwood Plc and Another v David Vagli Ltd and Another, Haughton Third Party: ChD 13 May 1998

The sellers had supplied counterfeit Waterford crystal to a buyer in New York, arranging for the goods to be shipped from Ireland to Spain and then from Spain to Felixstowe, where they were transhipped and sent to New York. The question was whether the sellers had infringed the Waterford trade mark in the United Kingdom by importing the goods into Felixstowe, and whether the English court had jurisdiction.
Held: The defendant had imported the goods into the United Kingdom. The buyer had not imported them into the United Kingdom. He had imported them into New York. The passage of the goods through Felixstowe was entirely the act of the seller and he was therefore the importer in relation to the United Kingdom. A third party claim by defendant against person domiciled in a convention country did not just because of that fall within the convention though satisfied Order 16 requirement as ‘any other third party proceedings.’

Judges:

Sir Richard Scott V-C

Citations:

Times 13-May-1998, [1998] FSR 92

Statutes:

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

Jurisdiction:

England and Wales

Cited by:

Cited – SABAF Spa (A Company Incorporated Under the Laws of Italy) v MFI Furniture Centres Limited and others; Sabaf Spa (A Company Incorporated Under the Laws of Italy) v MFI Furniture Centres Limited and others HL 14-Oct-2004
The patent holder had complained of imports of infringing items by the respondent, who in turn challenged the patent for obviousness. The Court of Appeal had rejected the rule of colocation as inconsistent with the test in Windsurfing.
Held: . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Intellectual Property

Updated: 09 February 2022; Ref: scu.90316

St Paul Dairy (Judgment): ECJ 28 Apr 2005

Brussels Convention – Provisional, including protective, measures – Hearing of witnesses

Citations:

C-104/03, [2005] EUECJ C-104/03, [2006] CEC 870, [2005] ILPr 31, [2006] All ER (EC) 172, [2005] ECR I-3481

Links:

Bailii

Jurisdiction:

European

Jurisdiction

Updated: 09 February 2022; Ref: scu.224681

Konkola Copper Mines Plc v Coromin: Admn 10 May 2005

Re-insurers liability under Part 20 claims.

Judges:

Colman J

Citations:

[2005] EWHC 898 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Appeal from – Konkola Copper Mines Plc and Another v Coromin Ltd and others CA 17-Jan-2006
A stay was sought to allow other proceedings to continue.
Held: A stay of the court’s own proceedings in support of an arbitration elsewhere ‘required rare and compelling circumstances’. . .
See Also – Konkola Copper Mines Plc and Another v Coromin Ltd. and others No.2 ComC 16-May-2006
. .
Lists of cited by and citing cases may be incomplete.

Insurance, Jurisdiction

Updated: 07 February 2022; Ref: scu.224892

Revenue and Customs v Sunico ApS and Others: ECJ 11 Apr 2013

ECJ (Opinion) Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Article 6 of the Agreement – Capacity of Danish courts to make references to the Court – Regulation (EC) No 44/2001 – Article 1(1) – Concept of civil and commercial matters – Action by an authority – Damages for involvement in tax evasion by a third party which is not itself a taxable person

Judges:

Kokott AG

Citations:

C-49/12, [2013] EUECJ C-49/12, [2013] EUECJ C-49/12

Links:

Bailii, Bailii

Statutes:

Regulation (EC) No 44/2001 1(1)

Jurisdiction:

European

Jurisdiction, Taxes Management

Updated: 06 February 2022; Ref: scu.472566

Banca Carige Spa Cassa Di Risparmio Di Genova E Imperia v Banco Nacional De Cuba and Another: ChD 11 Apr 2001

Application to discharge order declaring that leave was not needed for service of proceedings on the defendant out of the jurisdiction.

Judges:

Lightman J

Citations:

[2001] EWHC 562 (Ch), [2001] 2 Lloyd’s Rep 147, [2001] 2 BCLC 407, [2001] BPIR 407, [2001] Lloyd’s Rep Bank 203, [2001] 1 WLR 2039, [2001] 3 All ER 923

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Jurisdiction, Litigation Practice

Updated: 03 February 2022; Ref: scu.577490

Holmes v Holmes: CA 1989

Purchas LJ said: ‘the phrase ‘substantial ground for the making of an application for such an order’ is clearly central to the issues in this application . . [i]n particular when the court comes to consider such an application, it will have to take into account under s. 16(1) whether in all the circumstances of the case it will be appropriate for such an order to be made by a court in England and Wales. If it is not satisfied that it would be appropriate (and that is a positive onus), the court shall, as a matter of mandatory instruction, dismiss the application.
In my judgment that section reflects the fundamental rule of comity as between competent courts dealing with matters of this kind. Of course s. 16 is to be considered on the application itself. Mr. Bond very properly drew the distinction between the criteria which the court should take into account if it decides to entertain the application and those which the court has to consider on the application for leave to make the application. Nevertheless, if on the application for leave to apply it is clear that if leave were given the application must founder at the first hurdle of s. 16(1), then it would clearly be wrong for the court to grant leave to apply in the first instance. So it is not possible to isolate the considerations which arise under this group of sections’ and
‘the purpose of this Act is generally apparent, namely, that it is there to remit hardships which have been experienced in the past in the presence of a failure in a foreign jurisdiction to afford appropriate financial relief. The obvious cases are those jurisdictions where there simply are not any provisions to grant financial relief to wives or children or, maybe husbands and children. In such cases, although the dissolution of the marriage has taken place in a foreign jurisdiction according to foreign laws, then the courts in this country are empowered by Parliament to step in and fill the gap. For my part I do not believe that the intention of Parliament in passing this Act was in any way to vest in the English courts any power of review or even correction of orders made in a foreign forum by a competent court in the whole matter had been examined in a way exactly equivalent to the which examination which would have taken place if the application had been made in the first instance in the courts here. That is not the object of this legislation at all’.
There is no opaqueness in the language of s16.
Russell LJ said: ‘Prima facie the order of the foreign court should prevail save in exceptional circumstances . .’

Judges:

Purchas LJ, Russell LJ

Citations:

[1989] Fam 47

Statutes:

Matrimonial and Family Proceedings Act 1984 13 16

Jurisdiction:

England and Wales

Cited by:

Cited – Agbaje 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 . .
Cited – Hewitson v Hewitson CA 6-Oct-1994
W (former) had obtained leave ex parte to seek financial relief, and the former H now requested that that leave be set aside. H and W had been divorced in California. W had signed a ante-nuptial agreement. W was now resident here. H argued that . .
Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction

Updated: 03 February 2022; Ref: scu.406671

M 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 prohibited steps order to prevent the father from removing the children. She also issued a divorce petition. The Circuit Judge in England made an ex-parte injunction restraining the father from instituting proceedings in Scotland. The judge decided that England was the appropriate jurisdiction for the divorce proceedings. The father appealed.
Held: The court allowed his appeal. The judge had been wrong to decide either that the children had no habitual residence or that they were habitually resident in England. The grant of an injunction was inconsistent with the legislative framework provided by the 1973 Act. Undeer Schedule 1, paragraph 8(1), if a petition was presented in that part of the United Kingdom where parties were habitually resident when they last lived together, then any earlier petition presented in a different part of the United Kingdom by the other party to the marriage had to be stayed in favour of the petition presented in the place where the parties were habitually resident. Parliament not only permitted the father to present his petition in Scotland, but expressly provided that if he did so, the mother’s English proceedings should be stayed, and the English court should thereafter have no jurisdiction to make an order under Section 8 of the Children Act 1989 unless it was necessary to do so in order to deal with urgent matters.

Judges:

Butler-Sloss LJ

Citations:

[1997] 2 FLR 263

Statutes:

Domicile and Matrimonial Proceedings Act 1973

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Children, Jurisdiction, Scotland

Updated: 03 February 2022; Ref: scu.197889

Dumez France SA and Tracoba SARL v Hessische Landesbank and others: ECJ 11 Jan 1990

ECJ The expression ‘place where the harmful event occurred’ contained in Article 5(3 ) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters may refer to the place where the damage occurred, but the latter concept can be understood only as indicating the place where the event giving rise to the damage, and causing tortious, delictual or quasi-delictual liability to be incurred, directly produced its harmful effects upon the person who is the victim of that event. Accordingly, the rule on jurisdiction laid down in that article cannot be interpreted as permitting a plaintiff pleading damage which he claims to be the consequence of the harm suffered by other persons who were direct victims of the harmful act to bring proceedings against the perpetrator of that act before the courts in the place in which he himself ascertained the damage to his assets.
ECJ Brussels Convention – Tort, delict or quasi-delict – Interpretation of Article 5 (3) – Indirect victim – Damage suffered by a parent company through financial losses sustained by a subsidiary.

Citations:

[1990] ECR I-49, C-220/88, R-220/88, [1990] EUECJ R-220/88

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Mazur Media Limited and Another v Mazur Media Gmbh in Others ChD 8-Jul-2004
Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 03 February 2022; Ref: scu.134934

Reunion Europeenne Sa and Others v Spliethoff’s Bevrachtingskantoor Bv and Another: ECJ 27 Oct 1998

French consignees of a shipment of peaches sued in France the Australian issuers of the bill of laiding under which the goods were carried (a contract claim) and the Dutch carriers and master of the ship in which they were carried (tort claims).
Held: There was no jurisdiction under Article 6(1) because none of the defendants were domiciled in France. After referring to Kalfelis: ‘It follows that two claims in one action for compensation directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict cannot be regarded as connected.’
Europa An action by which the consignee of goods found to be damaged on completion of a transport operation by sea and then by land, or by which his insurer who has been subrogated to his rights after compensating him, seeks redress for the damage suffered, relying on the bill of lading covering the maritime transport, not against the person who issued that document on his headed paper but against the person whom the plaintiff considers to be the actual maritime carrier, does not fall within the scope of matters relating to a contract within the meaning of Article 5, point 1, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, since the bill of lading in question does not disclose any contractual relationship freely entered into between the consignee and the defendant. Such an action is, however, a matter relating to tort, delict or quasi-delict within the meaning of Article 5, point 3, of that Convention, since that concept covers all actions which seek to establish the liability of a defendant and are not related to matters of contract within the meaning of Article 5, point 1. As regards determining the `place where the harmful event occurred’ within the meaning of Article 5, point 3, the place where the consignee, on completion of a transport operation by sea and then by land, merely discovered the existence of the damage to the goods delivered to him cannot serve to determine that place. Whilst it is true that the abovementioned concept may cover both the place where the damage occurred and the place of the event giving rise to it, the place where the damage arose can, in the circumstances described, only be the place where the maritime carrier was to deliver the goods. Article 6, point 1, of the Convention of 27 September 1968 must be interpreted as meaning that a defendant domiciled in a Contracting State cannot, on the basis of that provision, be sued in another Contracting State before a court seised of an action against a co-defendant not domiciled in a Contracting State on the ground that the dispute is indivisible rather than merely displaying a connection. The objective of legal certainty pursued by the Convention would not be attained if the fact that a court in a Contracting State had accepted jurisdiction as regards one of the defendants not domiciled in a Contracting State made it possible to bring another defendant, domiciled in a Contracting State, before that same court in cases other than those envisaged by the Convention, thereby depriving him of the benefit of the protective rules laid down by it.

Citations:

Times 16-Nov-1998, C-51/97, [1998] ECR I-6511, [1998] EUECJ C-51/97

Links:

Bailii

Statutes:

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

Jurisdiction:

European

Cited by:

Cited – Mazur Media Limited and Another v Mazur Media Gmbh in Others ChD 8-Jul-2004
Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to . .
Cited – Shahar 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 . .
Cited – Casio 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 . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Transport, Jurisdiction

Updated: 03 February 2022; Ref: scu.88750

Marinari v Lloyd’s Bank: ECJ 19 Sep 1995

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

Citations:

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

Links:

Bailii

Jurisdiction:

European

Cited by:

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

Jurisdiction

Updated: 03 February 2022; Ref: scu.161183

Airbus Industrie G I E v Patel and Others: HL 2 Apr 1999

An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the 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.

Judges:

Lord Goff of Chieveley

Citations:

Times 06-Apr-1998, Gazette 07-May-1998, [1998] UKHL 12, [1999] 1 AC 119, [1998] 2 All ER 257, [1998] 2 WLR 686

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Airbus Industrie Gie v Patel and Others CA 12-Aug-1996
The policy allowing restraint of foreign proceedings was not limited to protecting proceedings here. An injunction to restrain proceedings given here after a dismissal of a similar case in the US was proper. . .
Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
At first instance – Airbus Industrie Gie v Patel and Others QBD 21-May-1996
A court may grant an anti-suit injunction restricting proceedings but only very rarely. . .
Approved – AMCHEM 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:

Cited – National 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 . .
Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Cited – Al-Bassam v Al-Bassam CA 1-Jul-2004
The claimant sought administration of her husband’s estate according to his domicile in England. The defendant claimed the estate under Islamic law, and that there had been no marriage, and that he had been domiciled in Saudi Arabia.
Held: The . .
Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Leading Case

Updated: 03 February 2022; Ref: scu.77692

Dolphin Maritime and Aviation Services Ltd v Sveriges Angartygs Assurans Forening: ComC 2 Apr 2009

The defendant sought to strike out the claim for want of jurisdiction and that it had no prospect of success.

Judges:

Christopher Clarke J

Citations:

[2009] EWHC 716 (Comm), [2009] 1 CLC 460, [2009] 2 Lloyds Rep 123

Links:

Bailii

Statutes:

Brussels Convention 1968

Jurisdiction:

England and Wales

Cited by:

Cited – Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd CA 2-Apr-2009
The appellant entered into two aircraft leasing agreements but were unable to maintain payments. They appealed against rejection of their argument that the agreements were not exempt from the controls under the 1977 Act by being international supply . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Updated: 03 February 2022; Ref: scu.331162

Shevill 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 public was abroad. Lord Jauncey of Tullichettle said: ‘Where English law presumes the publication of a defamatory statement is harmful to the person defamed without proof of special damage thereof that is sufficient for the application of article 5(3). An award of even nominal damages is recognition of some harm having been suffered by the plaintiff.’
However, where a court has jurisdiction over a foreign publisher it should award damages only for the harm suffered within its own jurisdiction.
Lord Bingham of Cornhill: One of the plaintiffs was a trading corporation and the presumption of damage in libel cases was treated as part of our national substantive law. Under the current law of England and Wales a trading company with a trading reputation in this country may recover general damages without pleading or proving special damage if the publication complained of has a tendency to damage it in the way of its business.

Judges:

Lord Jauncey of Tullichettle, Lord Bingham of Cornhill

Citations:

Gazette 16-Oct-1996, Times 26-Jul-1996, [1996] AC 959

Statutes:

Civil Jurisdiction and Judgments Act 1982

Jurisdiction:

England and Wales

Citing:

See Also – Shevill, 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 . .
Cited – Bata v Bata CA 1948
The defendant wrote a circular letter in Zurich libelling the plaintiff, who was chairman of a company in England, but who personally lived in Ontario, Canada. That circular letter was addressed to the deputy manager and managing director of the . .

Cited by:

See Also – Shevill, 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 . .
Cited – Dow 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 . .
Cited – Jameel v Wall Street Journal Europe Sprl HL 11-Oct-2006
The House was asked as to the capacity of a limited company to sue for damage to its reputation, where it had no trading activity within the jurisdiction, and as to the extent of the Reynolds defence. The defendants/appellants had published an . .
Cited – Berezovsky 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 – 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 . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Defamation

Updated: 03 February 2022; Ref: scu.89232

Handelskwekerij G. J. Bier BV v Mines de potasse d’Alsace SA: ECJ 30 Nov 1976

Europa A discharge into the French part of the Rhine of saline waste caused alleged damage to the horticultural business of the first plaintiff, and to the waters of the Rhine in general in the Netherlands.
Held: Both the place of the event giving rise to the damage and the place where the damage occurred constituted a significant connecting factor from the point of view of jurisdiction, and each of them could be particularly helpful from the point of view of evidence and the conduct of proceedings. Accordingly the plaintiff had an option to commence proceedings either at the place where the damage occurred or the place of the event giving rise to it. Where the place of the happening of the event which may give rise to liability in tort, delict or quasi-delict and the place where that event results in damage are not identical, 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, must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it. The result is that the defendant may be sued, at the option of the plaintiff, either in the courts for the place where the damage occurred or in the courts for the place of the event which gives rise to and is at the origin of that damage.

Citations:

[1976] ECR 1375, C-21/76

Jurisdiction:

European

Cited by:

Cited – Henderson v Jaouen and Another CA 1-Feb-2002
The plaintiff had been injured in an accident and had sued and recovered damages for his injuries in France. Later, his condition deteriorated. In France he would have been able to revive his action to claim further damages, but he sought a similar . .
Cited – Mazur Media Limited and Another v Mazur Media Gmbh in Others ChD 8-Jul-2004
Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 03 February 2022; Ref: scu.132429

Overseas Union Insurance Ltd and others v New Hampshire Insurance Company: ECJ 27 Jun 1991

ECJ Article 21 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that the rules applicable to lis alibi pendens set out therein must be applied irrespective of the domicile of the parties to the two sets of proceedings. Without prejudice to the case where the court second seised has exclusive jurisdiction under the Convention and in particular under Article 16 thereof, Article 21 of the Convention must be interpreted as meaning that, where the jurisdiction of the court first seised is contested, the court second seised may, if it does not decline jurisdiction, only stay the proceedings and may not itself examine the jurisdiction of the court first seised.

Citations:

C-351/89, [1992] QB 434, [1991] EUECJ C-351/89

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Cited – Turner v Grovit ECJ 27-Apr-2004
The claimant had been employed as a solicitor by the respondent at locations across Europe, and came to claim in England that they had wrongly implicated him in unlawful activity. The company sought to issue proceedings in Spain.
Held: The . .
Cited – Moore v Moore CA 20-Apr-2007
The family were wealthy, and had lived for some time in Spain. On the breakdown of the marriage, the wife returned to the UK, and sought ancillary relief here, though the divorce had been in Spain. The husband argued that this should be dealt with . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Insurance, Jurisdiction

Updated: 03 February 2022; Ref: scu.160375

AMT Futures Ltd v Marzillier and Others: SC 1 Mar 2017

AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought as damages the costs incurred in the German litigation. The defendant asserted lack of jurisdiction saying that the alleged wrong had taken place in Germany.
Held: AMT’s appeal failed. The loss complained of, the expenditures, occurred in Germany, and the complaint should be pursued there. There was no place for a special rule for the tort of inducing breach of contract.
There need be no reference to the ECJ.
19

Judges:

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Hodge

Citations:

[2017] UKSC 13, [2017] 2 WLR 853, [2017] 4 All ER 382, [2017] 1 CLC 178, [2017] WLR(D) 154, [2017] 2 All ER (Comm) 1041, [2018] AC 439, [2017] ILPr 22, UKSC 2015/0091

Links:

Bailii, WLRD, SC, SC Summary, SC Video Summary

Statutes:

Council Regulation (EC) No 44/2001

Jurisdiction:

England and Wales

Citing:

At ComC – AMT Futures Ltd v Marzillier, Dr Meier and Dr Guntner Rechtsanwaltsgesellschaft Mbh ComC 11-Apr-2014
Application by the Defendant for a declaration that the court did not have jurisdiction over it in respect of the subject matter of the claim and for an order setting aside service of the Claim Form.
Held: The English courts had jurisdiction. . .
At CA – Marzillier, Dr Meier and Dr Guntner Rechtsanwaltsgesellschaft Mbh v AMT Futures Ltd CA 26-Feb-2015
Claims were to be made against the execution only broker defendant by the claimants who were based in Germany. The contracts provided for the exclusive jurisdiction of the EW Courts.
Held: The English courts did not have jurisdiction as the . .
Cited – Overseas Union Insurance Ltd and others v New Hampshire Insurance Company ECJ 27-Jun-1991
ECJ Article 21 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that the rules applicable to lis alibi pendens . .
Cited – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – Erich 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 . .
Cited – Handelskwekerij GJ Bier Bv v Mines De Potasse D’Alsace Sa ECJ 30-Nov-1976
Europa Where the place of the happening of the event which may give rise to liability in tort, delict or quasi-delict and the place where that event results in damage are not identical, the expression ‘place . .
Cited – Dumez France SA and Tracoba SARL v Hessische Landesbank and others ECJ 11-Jan-1990
ECJ The expression ‘place where the harmful event occurred’ contained in Article 5(3 ) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters may . .
Cited – Coty Germany (Anciennement Coty Prestige Lancaster Group) ECJ 5-Jun-2014
ECJ (Judgment Of The Court) Judicial cooperation in civil matters – Regulations (EC) No 40/94 and No 44/2001 – Community trade mark – Article 93(5) of Regulation (EC) No 40/94 – International jurisdiction . .
Cited – Erich 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 . .
Cited – Marinari v Lloyd’s Bank ECJ 19-Sep-1995
A ‘harmful event’ occurred where the physical damage was suffered and not at the time and place of a later financial loss.
Europa The term ‘place where the harmful event occurred’ in Article 5(3) of the . .
Cited – Shevill 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 . .
Cited – Reunion Europeenne Sa and Others v Spliethoff’s Bevrachtingskantoor Bv and Another ECJ 27-Oct-1998
French consignees of a shipment of peaches sued in France the Australian issuers of the bill of laiding under which the goods were carried (a contract claim) and the Dutch carriers and master of the ship in which they were carried (tort claims).
Cited – 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 . .
Cited – Dolphin Maritime and Aviation Services Ltd v Sveriges Angartygs Assurans Forening ComC 2-Apr-2009
The defendant sought to strike out the claim for want of jurisdiction and that it had no prospect of success. . .
Cited – Zuid-Chemie v Philippo’s Mineralenfabriek NV/SA (Area Of Freedom, Security and Justice) ECJ 16-Jul-2009
Europa Judicial cooperation in civil and commercial matters – Jurisdiction and enforcement of judgments Regulation (EC) No 44/2001 Definition of the ‘place where the harmful event occurred’. . .
Cited – Peter Pinckney v KDG Mediatech Ag ECJ 3-Oct-2013
ECJ Regulation (EC) No 44/2001 – Jurisdiction – Matters relating to tort, delict and quasi-delict – Copyright – Material support reproducing a protected work – Placing on line – Determination of the place where . .
Cited – Edate Advertising v X ECJ 29-Mar-2011
ECJ Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Jurisdiction ‘in tort or quasi-delict’ – Violation of personal rights that may have been committed by the publication of information . .
Cited – Wintersteiger v Products 4U Sondermaschinenbau GmbH ECJ 16-Feb-2012
Judicial co-operation in civil matters – Jurisdiction – Regulation (EC) No 44/2001- Infringement of a trade mark as a result of the registration by a competitor of a sign identical to the trade mark with an internet search services provider – . .
Cited – Srl CILFIT v Ministero Della Sanita ECJ 6-Oct-1982
ECJ The obligation to refer to the Court of Justice questions concerning the interpretation of the EEC Treaty and of measures adopted by the community institutions which the third paragraph of article 177 of the . .
Cited – Kalfelis v Bankhaus Schroder, Munchmeyer, Hengst and Co and others ECJ 27-Sep-1988
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 – Universal Music International Holding BV v Schilling and others ECJ 16-Jun-2016
ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 44/2001 – Special jurisdiction – Article 5(3) – Tort, delict or quasi-delict – Harmful event – . .
Cited – Folien Fischer Ag and Another v Ritrama Spa ECJ 19-Apr-2012
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 – . .
Cited – 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 . .
Cited – Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV ECJ 21-May-2015
ECJ Judgment – Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in civil and commercial matters – Regulation (EC) No 44/2001 – Special jurisdiction – Article 6(1) . .

Cited by:

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

Jurisdiction

Updated: 03 February 2022; Ref: scu.577934

Erich 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 relying upon a choice of forum term to that effect in the trading terms.
Held: The country first seised of the matter retained jurisdiction in preference to a country of choice under the contract. A national court could refer to the European court a request for interpretation of the Brussels Convention where it thought this necessary, and even though it had not yet made an assessment of the merits of the case. Such Conventions are based on the mutual trust and confidence which each contracting state accords to the legal systems and judicial institutions of the other contracting states. A court of a Member State on which exclusive jurisdiction has been conferred pursuant to article 23 cannot issue an injunction to restrain a party from prosecuting proceedings before a court of another Member State if that court was first seised of the dispute.

Judges:

V Skouris, P

Citations:

C-116/02, Times 12-Dec-2003, [2004] 1 Lloyd’s Rep 222, [2003] EUECJ C-116/02, [2003] ECR I-14693, [2005] 1 QB 1, [2003] ECR 14, [2004] 3 WLR 1070, [2004] ILPr 7, [2005] All ER (EC) 517, [2005] 1 All ER (Comm) 538

Links:

Bailii

Statutes:

Brussels Convention 17

Jurisdiction:

European

Cited by:

Cited – Speed Investments Ltd and Another v Formula One Holdings Limited and Others (No 2) ChD 20-Jul-2004
The defendants sought a stay of the action, arguing that proceedings had begun first in Switzerland.
Held: An English court became seised of an action for the purposes of the Convention at the time when the proceedings were served. Under the . .
Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Cited – 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 . .
Cited – West 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. . .
Cited – 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 . .
Cited – Starlight 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 . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Updated: 03 February 2022; Ref: scu.189894

Marzillier, Dr Meier and Dr Guntner Rechtsanwaltsgesellschaft Mbh v AMT Futures Ltd: CA 26 Feb 2015

Claims were to be made against the execution only broker defendant by the claimants who were based in Germany. The contracts provided for the exclusive jurisdiction of the EW Courts.
Held: The English courts did not have jurisdiction as the relevant harm had occurred in Germany.

Judges:

Laws, Tomlinson, Clarke LJJ

Citations:

[2015] EWCA Civ 143, [2015] ILPr 20, [2015] 3 WLR 282, [2015] WLR(D) 95, [2015] 1 QB 699

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – AMT Futures Ltd v Marzillier, Dr Meier and Dr Guntner Rechtsanwaltsgesellschaft Mbh ComC 11-Apr-2014
Application by the Defendant for a declaration that the court did not have jurisdiction over it in respect of the subject matter of the claim and for an order setting aside service of the Claim Form.
Held: The English courts had jurisdiction. . .

Cited by:

At CA – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 03 February 2022; Ref: scu.543491

AMT Futures Ltd v Marzillier, Dr Meier and Dr Guntner Rechtsanwaltsgesellschaft Mbh: ComC 11 Apr 2014

Application by the Defendant for a declaration that the court did not have jurisdiction over it in respect of the subject matter of the claim and for an order setting aside service of the Claim Form.
Held: The English courts had jurisdiction. The exclusive jurisdiction clause was a benefit derived from the contract, and its denial would be a harm suffered in that jurisdiction within article 5(3) of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Judges:

Popplewell J

Citations:

[2014] EWHC 1085 (Comm), [2015] 1 All ER (Comm) 374, [2014] WLR(D) 182, [2014] 2 Lloyd’s Rep 349, [2014] 1 CLC 531, [2014] CTLC 190, [2015] 2 WLR 187, [2015] ILPr 18

Links:

Bailii, WLRD

Statutes:

Council Regulation (EC) No 44/2001, art 5(3)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Marzillier, Dr Meier and Dr Guntner Rechtsanwaltsgesellschaft Mbh v AMT Futures Ltd CA 26-Feb-2015
Claims were to be made against the execution only broker defendant by the claimants who were based in Germany. The contracts provided for the exclusive jurisdiction of the EW Courts.
Held: The English courts did not have jurisdiction as the . .
At ComC – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, European

Updated: 03 February 2022; Ref: scu.523698

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.

Judges:

Jaaskinen AG

Citations:

C-228/11, [2012] EUECJ C-228/11

Links:

Bailii

Statutes:

Regulation (EC) No 44/2001 5(3)

Jurisdiction:

European

Cited by:

Opinion – Melzer v MF Global UK ECJ 16-May-2013
Judicial cooperation in civil matters – Special jurisdiction in matters of tort, delict and quasi-delict – Cross-border participation by several persons in the same unlawful act – Possibility of establishing territorial jurisdiction according to the . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 03 February 2022; Ref: scu.466426

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

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.

Judges:

Askinen AG

Citations:

C-133/11, [2012] EUECJ C-133/11, [2013] ILPr 1, [2013] QB 523, [2014] 1 All ER (Comm) 569, [2013] 2 WLR 373, ECLI:EU:C:2012:664, [2012] WLR(D) 292, [2013] CEC 727

Links:

Bailii, WLRD

Statutes:

Regulation (EC) No 44/2001 5(3)

Jurisdiction:

European

Cited by:

Opinion – Folien 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’) . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 03 February 2022; Ref: scu.460413

Handelskwekerij GJ Bier Bv v Mines De Potasse D’Alsace Sa: ECJ 30 Nov 1976

Europa Where the place of the happening of the event which may give rise to liability in tort, delict or quasi-delict and the place where that event results in damage are not identical, 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, must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it. The result is that the defendant may be sued, at the option of the plaintiff, either in the courts for the place where the damage occurred or in the courts for the place of the event which gives rise to and is at the origin of that damage.

Citations:

R-21/76, [1976] EUECJ R-21/76, [1978] QB 708, [1977] 1 CMLR 284, ECLI:EU:C:1976:166, [1976] ECR 1735, [1977] 3 WLR 479

Links:

Bailii

Statutes:

Brussels Convention 1968

Jurisdiction:

European

Cited by:

Cited – ABCI v Banque Franco-Tunisienne and others CA 27-Feb-2003
‘The thinking behind the CPR was that they would speak for themselves and that courts would not have to refer to an ever increasing body of authority in order to apply them.’ . .
Mentioned – Cooley v Ramsey QBD 1-Feb-2008
The claimant sought damages after being severely injured in a road traffic accident in Australia caused by the defendant. The defendant denied that the court had jurisdiction to permit service out of the jurisdiction. The claimant said that the . .
Cited – Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd CA 2-Apr-2009
The appellant entered into two aircraft leasing agreements but were unable to maintain payments. They appealed against rejection of their argument that the agreements were not exempt from the controls under the 1977 Act by being international supply . .
Cited – JSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 03 February 2022; Ref: scu.214503

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

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.

Citations:

C-189/87, [1988] ECR 5565, R-189/87, [1988] EUECJ R-189/87, [1988] ECT 6656

Links:

Bailii

Statutes:

Convention on Jurisdiction And The Enforcement Of Judgments 5

Jurisdiction:

European

Cited by:

Cited – Mazur Media Limited and Another v Mazur Media Gmbh in Others ChD 8-Jul-2004
Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to . .
Cited – 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 . .
Cited – Shahar 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 . .
Cited – Masri 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 . .
Cited – Casio 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 . .
Cited – 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 . .
Cited – Kinnear 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 . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Lists of cited by and citing cases may be incomplete.

European, Jurisdiction

Leading Case

Updated: 03 February 2022; Ref: scu.134648

Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc: ComC 3 Feb 2017

The court was asked whether so-called asymmetric jurisdiction clauses confer exclusive jurisdiction on the court or courts of a Member State within the terms of Article 31(2) of Regulation (EU) 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters .

Judges:

Cranston J

Citations:

[2017] EWHC 161 (Comm), [2017] WLR(D) 78

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Jurisdiction

Updated: 31 January 2022; Ref: scu.575364

AMCHEM 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 Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Prerogative writs – Injunctions – Appropriate forum for bringing action – 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 Canadian courts to prevent action in U.S. courts – Whether or not an injunction appropriate.
Conflict of laws – Courts – 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 Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Sopinka J discussed the importance of comity considerations in anti-suit injunction applications and held: ‘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 [for an anti-suit injunction] should be dismissed.’

Judges:

La Forest, Sopinka, Gonthier, Cory and McLachlin JJ

Citations:

[1993] 1 SCR 897, (1993) 102 DLR (4th) 96, [1993] 3 WWR 441, 77 BCLR (2d) 62, 150 NR 321, 23 BCAC 1, [1993] CarswellBC 47, JE 93-674

Links:

Canlii

Cited by:

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

Commonwealth, Jurisdiction, Contract, International

Updated: 31 January 2022; Ref: scu.228197

Al-Bassam v Al-Bassam: CA 1 Jul 2004

The claimant sought administration of her husband’s estate according to his domicile in England. The defendant claimed the estate under Islamic law, and that there had been no marriage, and that he had been domiciled in Saudi Arabia.
Held: The real issue was as to whether Sharia law should be applied and whether the will was executed properly. Issues to be decided by a court in Saudi would follow the decisions to be made first by the English court. Case management directions were to be made to bring before the English court the issues which that court can, and should, decide before addressing issues of Islamic law. The perpetual restraint against the defendant issuing proceedings in Riyadh was lifted, and the claimant was to be allowed to amend her pleadings.

Judges:

Sir Andrew Morritt VC, Lord Justice Chadwick, Lord Justice Carnwath

Citations:

[2004] EWCA Civ 857, Times 22-Jul-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – Wim Harry Gerard Maronier v Bryan Larmer CA 29-May-2002
The defendant had been a dentist in the Netherlands. An action for damages was begun against him, but then stayed. Judgment was later entered in the Netherlands after he had moved to the UK, and of which he was ignorant. There was no subsisting . .
Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
Cited – Pelligrini v Italy ECHR 2002
. .
Cited – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Jurisdiction

Updated: 31 January 2022; Ref: scu.198514

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.’

Judges:

Laws, Rix and Longmore LJJ

Citations:

[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

Links:

Bailii

Statutes:

Contracts (Applicable Law) Act 1990

Jurisdiction:

England and Wales

Citing:

Cited – Donohue 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. . .
Cited – The Eleftheria 1970
In general, and all other things being equal, it is more satisfactory (from the point of view of ensuring that justice is done) for the law of a foreign country to be decided by the courts of that country.
Brandon J said: ‘I further regard, . .
Cited – The 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 . .
Cited – Vita 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, . .
Cited – Adams 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 . .
Cited – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – AMCHEM 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 – Erich 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 . .
Cited – Sabah Shipyard (Pakistan) Ltd v The Islamic Republic of Pakistan and Another CA 14-Nov-2002
An order was sought to restrain proceedings in Pakistan.
Held: The agreement provided that it should be subject to the exclusive jurisdiction of England. The national state was also party to the agreement, and had waived sovereign immunity. It . .
Cited – Aggeliki 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 . .
Cited – Continental 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 . .
Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
Cited – The 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.’ . .
Cited – The 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. . .
Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Cited – Turner v Grovit ECJ 27-Apr-2004
The claimant had been employed as a solicitor by the respondent at locations across Europe, and came to claim in England that they had wrongly implicated him in unlawful activity. The company sought to issue proceedings in Spain.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Leading Case

Updated: 31 January 2022; Ref: scu.226156

National 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 the TOA and an injunction to prevent the defendants proceeding in California. The defendants appealed. There were allegations of the withholding of information which would be treated differently in the two courts.
Held: If the agent had no obligation to disclose anything, his failure to do so could not be characterised as fraudulent or negligent, whatever his motives may have been. The agreement gave explicit preference to English law. The clause specifying what was to be disclosed was neither unfair nor unreasonable. The injunction was correctly granted.

Judges:

Lord Justice Aldous, Lord Justice Clarke, And Lord Justice Laws

Citations:

[2001] EWCA Civ 658, [2001] 3 All ER 733

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977 2(2), Misrepresentation Act 1967 3

Jurisdiction:

England and Wales

Citing:

Cited – Reichhold Norway ASA and Reichhold Chemicals Inc v Goldman Sachs International CA 28-Jun-1999
An application was made to stay proceedings to await the decision of a foreign court. At first instance, Moore-Bick J had held that a Court has an interest in deciding the order in which related proceedings should be tried ‘not only because the . .
Cited – Sheffield v Oxford Controls Co Ltd EAT 18-Dec-1978
The company had been owned equally by Mr. Sheffield and Mr. Raison. The Raisons gained effective control of the company on the issue of shares. Mr. and Mrs. Sheffield had been employed, but after a row, she was told she would have to go. This . .
Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
Cited – Continental 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 . .
Cited – Aggeliki 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 . .
Cited – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – Roger Thomas Donohue v Armco Inc and others CA 29-Mar-2000
The claimant sought an order restraining the defendants from pursuing a claim in America. The parties were party to a contract governed by English law, but the allegation was one of fraud, and the defendants said this was outside the provisions of . .
Cited – Canada Steamship Lines Ltd v The King PC 21-Jan-1952
A lease of a freight shed exonerated the lessor from ‘any claim . . for . . damage . . to . . Goods . . being . . in the said shed’ and requiring the lessee to indemnify the lessor ‘from and against all claims’. The negligent use of an oxy-acetylene . .
Cited – Smith v UMB Chrysler (Scotland) Ltd HL 9-Nov-1977
The principles set out in Canada Steamship apply to ‘clauses which purport to exempt one party to a contract from liability’. The principles should be applied without ‘mechanistic construction’.
Lord Keith of Kinkel said: The tests were . .
Cited – Phillips Products Ltd v Hyland CA 1987
To decide whether a clause is an exclusion clause it is necessary to look at the effect of the clause and not its form. ‘There is no mystique about `exclusion’ or `restriction’ clauses. To decide whether a person `excludes’ liability by reference to . .
Cited – de Dampierre v de Dampierre HL 1988
The existence and state of foreign proceedings are relevant to the exercise of the court’s discretion to stay an action on the ground of forum non conveniens. The essential test on which the court might exercise its discretion to stay the petition . .
Cited – Smith v Eric S Bush, a firm etc HL 20-Apr-1989
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Stewart Gill Ltd v Horatio Myer and Co Ltd CA 1992
The ‘guidelines’ in Schedule 2 are usually regarded as of general application to the question of reasonableness under the 1977 Act. The effect of s13 which deals with exemption clauses, is to apply s3 inter alia to ‘no set off’ clauses. The . .
Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .

Cited by:

Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – Sheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
Lists of cited by and citing cases may be incomplete.

Banking, Jurisdiction, Contract

Updated: 31 January 2022; Ref: scu.135463

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

Judges:

Keith of Kinkel, Griffiths, Mackay of Clashfern, Goff of Chieveley LL, Sir John Megaw

Citations:

[1987] 1 AC 871, [1987] UKPC 12

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – National 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 . .
Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Cited – Fort Dodge Animal Health Ltd v Akzo Nobel Nv CA 27-Oct-1997
(Patents) ‘The United Kingdom courts have jurisdiction to prevent vexation and oppression by persons subject to their jurisdiction. In particular, the courts are entitled to prevent persons domiciled in this country from being submitted to vexatious . .
Cited – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – Al-Bassam v Al-Bassam CA 1-Jul-2004
The claimant sought administration of her husband’s estate according to his domicile in England. The defendant claimed the estate under Islamic law, and that there had been no marriage, and that he had been domiciled in Saudi Arabia.
Held: The . .
Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 31 January 2022; Ref: scu.443457

Connelly 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 its discretion to grant a stay. For that purpose, he has to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum in which jurisdiction has been founded by the plaintiff as of right. In considering that question, the court will look first to see what factors there are which point in the direction of another forum, ie connecting factors which indicate that it is with the other forum that the action has its most real and substantial connection. That is the first stage. However, even if the court concludes at that stage that the other forum is clearly more appropriate for the trial of the action, the court may nevertheless decline to grant a stay if persuaded by the plaintiff, on whom the burden of proof then lies, that justice requires that a stay should not be granted. That is the second stage.’

Judges:

Lord Goff of Chievely

Citations:

Times 04-Aug-1997, Gazette 28-Aug-1997, [1997] UKHL 30, [1998] AC 854, [1997] 4 All ER 335, [1997] 3 WLR 373

Links:

House of Lords, Bailii

Statutes:

Legal Aid Act 1988 31(1)(b)

Jurisdiction:

England and Wales

Citing:

Appeal from – Connelly v RTZ Corporation Plc CA 29-Sep-1995
Availability of legal aid to a party is not a relevant consideration to rules of forum non conveniens. . .

Cited by:

Cited – Malekout v Medical Sickness Annuity and Life Assurance Society Limited CA 21-May-1998
The plaintiff sought to appeal against a stay of his action so that it could be referred to arbitration. His claim was under insurance policies containing clauses providing for arbitration of disputes.
Held: The judge had failed to take . .
Cited – 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 . .
Cited – Vedanta Resources Plc and Another v Lungowe and Others SC 10-Apr-2019
The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. In the Court of Appeal the defendants’ appeals were dismissed. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice, Legal Aid

Updated: 30 January 2022; Ref: scu.158908

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’.

Judges:

Lord Templeman, Lord Goff of Chieveley

Citations:

[1987] 1 AC 460, [1986] 3 All ER 843, [1986] 3 WLR 972, [1986] UKHL 10

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Sim v Robinow 1892
The task of the court in deciding jurisdiction is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice: . .

Cited by:

Cited – Staines 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 . .
Cited – Mukta Gokaldas Hindocha (widow of C S Gheewala) and Others v Mahesh Shamjibhal Juthabhai Gheewala and Others PC 20-Nov-2003
PC (Jersey) The defendant sought a stay of the action, arguing it should be heard in another jurisdiction. He wanted the estate to be administered in Kenya, a jurisdiction which would apply Hindu laws of . .
Cited – Turner v Grovit and others HL 13-Dec-2001
The applicant was a solicitor employed by a company in Belgium. He later resigned claiming unfair dismissal, saying he had been pressed to become involved in unlawful activities. The defendants sought to challenge the jurisdiction of the English . .
Cited – Tryg 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. . .
Cited – Lewis 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 . .
Cited – Dow 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 . .
Cited – Pt 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 . .
Cited – Limit (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.
Cited – Crofts 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 . .
Cited – Sawyer 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 . .
Cited – Islamic 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 . .
Cited – Ashton 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 . .
Cited – Dellar 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 . .
Cited – Cooley v Ramsey QBD 1-Feb-2008
The claimant sought damages after being severely injured in a road traffic accident in Australia caused by the defendant. The defendant denied that the court had jurisdiction to permit service out of the jurisdiction. The claimant said that the . .
Cited – Berezovsky 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 – 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 . .
Cited – 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 . .
Cited – Agbaje 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 . .
Cited – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
Cited – Ashby 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 . .
Cited – Birmingham 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 . .
Cited – Birmingham 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 . .
Cited – 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 . .
Cited – Novus 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 . .
Cited – 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 . .
Cited – Ahuja 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 . .
Cited – Vedanta Resources Plc and Another v Lungowe and Others SC 10-Apr-2019
The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. In the Court of Appeal the defendants’ appeals were dismissed. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Torts – Other

Leading Case

Updated: 30 January 2022; Ref: scu.192613

Deripaska v Cherney: CA 31 Jul 2009

The court considered where the trial of the action should take place.
Held: The defendant’s appeal failed. Even though the rights sought to be protected were of a proprietary nature, where the rights could properly be said to have arisen under an English contract, the English court could use its discretion to assert jurisdiction. Though Russia might otherwise be the natural place for the trial of the action, the claimant had proper concerns for the risks he would face if he returned there for the case.
Waller LJ set out some of the elements required for jurisdiction under forum conveniens: ‘In my view the summary in the notes on page 22 of the White Book under CPR 6.37(4) Forum Conveniens summarises the position correctly:-
‘Subject to the differences set out below, the criteria that govern the application of the principle of forum conveniens where permission is sought to serve out of the jurisdiction are the same as those that govern the application of the principle of forum non conveniens where a stay is sought in respect of proceedings started within the jurisdiction. Those criteria are set out in The Spiliada . .:
(i) The burden is upon the claimant to persuade the court that England is clearly the appropriate forum for the trial of the action.
(ii) The appropriate forum is that forum where the case may most suitably be tried for the interests of all the parties and the ends of justice.
(iii) One must consider first what is the ‘natural forum’; namely that with which the action has the most real and substantial connection. Connecting factors will include not only factors concerning convenience and expense (such as the availability of witnesses), but also factors such as the law governing the relevant transaction and the places where the parties reside and respectively carry on business.
(iv) In considering where the case can be tried most ‘suitably for the interests of all the parties and for the ends of justice’ ordinary English procedural advantages such as a power to award interest, are normally irrelevant as are more generous English limitation periods where the claimant has failed to act prudently in respect of a shorter limitation period elsewhere.
(v) If the court concludes at that stage that there is another forum which is apparently as suitable or more suitable than England, it will normally refuse permission unless there are circumstances by reason of which justice requires that permission should nevertheless be granted. In this inquiry the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence that the claimant will not obtain justice in the foreign jurisdiction. Other factors include the absence of legal aid or the ability to obtain contribution in the foreign jurisdiction.
(vi) Where a party seeks to establish the existence of a matter that will assist him in persuading the court to exercise its discretion in his favour, the evidential burden in respect of that matter will rest upon the party asserting it.’

Judges:

Waller, Moore-Bick LJJ, Sir John Chadwick

Citations:

[2009] EWCA Civ 849, [2009] CP Rep 48, [2010] 2 All ER (Comm) 456

Links:

Times, Bailii

Statutes:

Civil Procedure Rules 6.37(4)

Jurisdiction:

England and Wales

Citing:

Appeal From – Cherney v Deripaska ComC 3-Jul-2008
Renewed application for leave to serve proceedings out of jurisdiction. The court considered a submission that a fair trial would not be possible in Russia: ‘An English court will approach with considerable circumspection any contention that a . .

Cited by:

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

Jurisdiction

Updated: 30 January 2022; Ref: scu.368593

OJSC VTB Bank v Parline Ltd and Others: ComC 25 Oct 2013

Application by the second defendant to set aside service on her out of the jurisdiction in Russia.

Citations:

[2013] EWHC 3538 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Jurisdiction

Updated: 30 January 2022; Ref: scu.636180

Vava and Others v Anglo American South Africa Ltd: QBD 16 Jul 2012

Judges:

Silber J

Citations:

[2012] EWHC 1969 (QB), [2013] BUS LR D48

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Personal Injury, Jurisdiction

Updated: 30 January 2022; Ref: scu.462838

Vedanta Resources Plc and Another v Lungowe and Others: SC 10 Apr 2019

The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. In the Court of Appeal the defendants’ appeals were dismissed.
Held: The appeals failed save that the UK was not the proper jurisdiction to bring the case. The claim was an abuse of EU law by the use of one defendant to notionally create a jurisdiction. There was a real and triable issue against Vedanata on the allegations. The defendant had offered to submit to the jurisdiction of Zambia, and there was a risk by granting UK jurisdiction of conflicting decisions. However there were undeniable difficulties in pursuing the case in Zambia particularly as regards group claims, and sufficiently experienced legal teams.

Judges:

Baroness Hale of Richmond PSC, Lord Wilson, Lord Hodge, Lady Black, Lord Briggs JJSC

Citations:

[2019] 2 WLR 1051, [2019] WLR(D) 241, [2019] UKSC 20, UKSC 2017/0185, [2020] AC 1045, [2019] 2 All ER (Comm) 559, [2019] 1 CLC 619, [2019] BLR 327, [2019] BCC 520, [2019] Env LR 32, [2019] 2 Lloyd’s Rep 399, [2019] 3 All ER 1013

Links:

Bailii Summary, Bailii, WLRD, SC, SC Summary, SC Summary Video, SC 19 Jan 15 am Video, SC 19 Jan 15 pm Video, SC 19 Jan 16 am Video, SC 19 Jan 16 pm Video

Statutes:

Parliament and Council Regulation (EU) No 1215/2012, art 4

Jurisdiction:

England and Wales

Citing:

At TCC – Lungowe and Others v Vedanta Resources Plc and Another TCC 27-May-2016
‘The claimants are 1,826 Zambian citizens who are residents of four communities (Shimulala, Hellen, Kakosa and Hippo Pool) in the Chingola region of Zambia. On 31 July 2015, they commenced these proceedings alleging personal injury, damage to . .
Appeal from – A 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 . .
See Also – Lungowe and Others v Vedanta Resources Plc and Another CA 13-Oct-2017
Appeal against jurisdiction order . .
See Also – Vedanta Resources Plc and Another v Lungowe and Others SC 10-Apr-2019
The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. In the Court of Appeal the defendants’ appeals were dismissed. . .
Cited – Elmes and others v Vedanta Lisheen Mining Ltd and others 21-Feb-2014
High Court of Ireland . .
Cited – U and M Mining Zambia Ltd v Konkola Copper Mines Plc ComC 10-Oct-2014
Application on notice to continue world wide freezing orders obtained ex parte. The defendant alleged that the Claimant had not established a risk of dissipation, that it was not just and convenient to grant a WFO, and that the Claimant had failed . .
Cited – Konkola Copper Mines PLC v Nyasulu and Other 1-Apr-2015
Supreme Court of Zambia – Without any agreement otherwise it will be necessary for each individual claimant to prove both causation and loss, and to value their loss. . .
Cited – Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV ECJ 21-May-2015
ECJ Judgment – Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in civil and commercial matters – Regulation (EC) No 44/2001 – Special jurisdiction – Article 6(1) . .
Cited – AMT Futures Ltd v Marzillier and Others SC 1-Mar-2017
AMT entered into many financial services agreements providing for exclusive EW jurisdiction. It now sought to restrain the defendant German lawyers from encouraging litigation in Germany saying that induced breaches of the contracts. It also sought . .
Cited – Wenlock v Moloney CA 1965
The plaintiff alleged a conspiracy to deprive him of his shares and interest in a company. Each side filed affidavit evidence raising issues of fact. With no oral evidence or cross examination on the affidavits, the Master, after a four day hearing, . .
Cited – Dorset Yacht Co Ltd v Home Office HL 6-May-1970
A yacht was damaged by boys who had escaped from the supervision of prison officers in a nearby Borstal institution. The boat owners sued the Home Office alleging negligence by the prison officers.
Held: Any duty of a borstal officer to use . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Cited – AAA and Others v Unilever Plc and Another CA 4-Jul-2018
Sales LJ said: ‘There is no special doctrine in the law of tort of legal responsibility on the part of a parent company in relation to the activities of its subsidiary, vis-a-vis persons affected by those activities. Parent and subsidiary are . .
Cited – Ogale Community and Others v Royal Dutch Shell Plc and Another CA 14-Feb-2018
The claimants sought damages after widescale historic damage to areas of Nigeria by subsidiaries of the defendant. The defendant said that the court did not have jurisdiction to hear such a claim.
Held: The claimants had not established the . .
Cited – Rome v Punjab National Bank 1989
. .
Cited – 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 . .
Cited – OJSC VTB Bank v Parline Ltd and Others ComC 25-Oct-2013
Application by the second defendant to set aside service on her out of the jurisdiction in Russia. . .
Cited – Melzer v MF Global UK ECJ 16-May-2013
Judicial cooperation in civil matters – Special jurisdiction in matters of tort, delict and quasi-delict – Cross-border participation by several persons in the same unlawful act – Possibility of establishing territorial jurisdiction according to the . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Connelly 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 . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Vava and Others v Anglo American South Africa Ltd QBD 16-Jul-2012
. .
Cited – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
Cited – Chandler v Cape Plc CA 25-Apr-2012
. .
Cited – 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 . .
Cited – Deripaska v Cherney CA 31-Jul-2009
The court considered where the trial of the action should take place.
Held: The defendant’s appeal failed. Even though the rights sought to be protected were of a proprietary nature, where the rights could properly be said to have arisen under . .
Cited – Freeport plc v Arnoldsson ECJ 11-Oct-2007
(Opinion) The claimant sought to use article 6.1 of the Judgments Regulation (EC) No 44/2001 as a means of invoking the jurisdiction of the Swedish courts over a claim against an English company, because a Swedish company was a co-defendant. One of . .

Cited by:

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

Jurisdiction, Litigation Practice, European, Torts – Other

Updated: 30 January 2022; Ref: scu.636997

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

Developing Law – Summary Procedures Very Limited

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

Judges:

Lord Phillips, Lord Mance, Lord Collins, Lord Kerr, Lord Dyson

Citations:

[2011] UKPC 7, [2012] 1 All ER (Comm) 319, [2011] 1 CLC 205, [2012] 1 WLR 1804, [2011] 4 All ER 1027

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Cited – 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 . .
Cited – Abela 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 . .
Applied – Williams 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 . .
Cited – Williams 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 . .
Cited – 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’ . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Cited – Four 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 . .
Applied – Ahuja 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 . .
Cited – Vedanta Resources Plc and Another v Lungowe and Others SC 10-Apr-2019
The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. In the Court of Appeal the defendants’ appeals were dismissed. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Litigation Practice

Leading Case

Updated: 30 January 2022; Ref: scu.430511

Freeport plc v Arnoldsson: ECJ 11 Oct 2007

(Opinion) The claimant sought to use article 6.1 of the Judgments Regulation (EC) No 44/2001 as a means of invoking the jurisdiction of the Swedish courts over a claim against an English company, because a Swedish company was a co-defendant. One of the objections raised by the English defendant was that the claimant was making an abusive use of article 6.1, by joining the Swedish company as a vehicle for that purpose, so as to disable the primary rule (in article 2) requiring the English company to be sued in England.
Held: Advocate General Mengozzi said that in order to disapply article 6.1 it would be necessary to show not merely that the claimant had joined the Swedish defendant for the ‘sole object of removing one of those defendants from the courts of his own domicile’ but also that it would be necessary to show, not merely fraudulent or wrongful intent, but ‘that the action bought against the defendant domiciled in the forum member state appears to be unfounded . . manifestly unfounded in all respects – to the point of proving to be contrived – or devoid of any real interest for the claimant’.

Judges:

Advocate General Mengozzi

Citations:

[2008] QB 634, [2008] 2 WLR 853, [2007] All ER (D) 160, [2007] EUECJ C-98/06, [2008] CEC 21, [2007] ECR I-8319

Links:

Bailii

Jurisdiction:

European

Cited by:

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

Jurisdiction

Updated: 30 January 2022; Ref: scu.671690

Melzer v MF Global UK: ECJ 16 May 2013

Judicial cooperation in civil matters – Special jurisdiction in matters of tort, delict and quasi-delict – Cross-border participation by several persons in the same unlawful act – Possibility of establishing territorial jurisdiction according to the place where the act was committed by one of the perpetrators of the damage other than the defendant (‘wechselseitige Handlungsortzurechnung

Judges:

A Tizzano, President of the Chamber, a Borg Barthet, J-J Kasel, M Safjan (Rapporteur) and M Berger, Judges

Citations:

[2013] EUECJ C-228/11, [2013] ILPr 30, [2013] WLR(D) 196, [2013] 3 WLR 883, [2013] 1 QB 1112, [2013] CEC 1023, ECLI:EU:C:2013:305, [2013] QB 1112

Links:

Bailii, WLRD

Jurisdiction:

European

Citing:

Opinion – 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 . .

Cited by:

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

Jurisdiction

Updated: 30 January 2022; Ref: scu.671689

Lungowe and Others v Vedanta Resources Plc and Another: CA 13 Oct 2017

Appeal against jurisdiction order

Judges:

Jackson, Simon, Asplin LJJ

Citations:

[2017] EWCA Civ 1528, [2017] BCC 787, [2018] 1 WLR 3575, [2017] WLR(D) 741

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – Lungowe and Others v Vedanta Resources Plc and Another TCC 27-May-2016
‘The claimants are 1,826 Zambian citizens who are residents of four communities (Shimulala, Hellen, Kakosa and Hippo Pool) in the Chingola region of Zambia. On 31 July 2015, they commenced these proceedings alleging personal injury, damage to . .

Cited by:

Appeal from – Vedanta Resources Plc and Another v Lungowe and Others SC 10-Apr-2019
The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. . .
See Also – Lungowe v Vedanta Resources Plc and Others TCC 27-Mar-2020
. .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Torts – Other, Jurisdiction

Updated: 29 January 2022; Ref: scu.596092

Magiera v Magiera: CA 15 Dec 2016

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

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

Jurisdiction, European, Trusts

Updated: 27 January 2022; Ref: scu.572417

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

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

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

Jurisdiction

Updated: 26 January 2022; Ref: scu.571760

JEB Recoveries Llp v Binstock: CA 19 Oct 2016

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

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

Jurisdiction, Contract

Updated: 24 January 2022; Ref: scu.570175

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

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

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

Jurisdiction

Updated: 23 January 2022; Ref: scu.570006

Aziz v Republic of Yemen: CA 17 Jun 2005

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

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

Lists of cited by and citing cases may be incomplete.

Employment, Jurisdiction

Updated: 22 January 2022; Ref: scu.226829

Re DB: CoP 17 Jun 2016

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

Baker J
[2016] EWCOP 30
Bailii
England and Wales

Health, Jurisdiction

Updated: 21 January 2022; Ref: scu.568152

Gazdasagi Versenyhivatal v Siemens Aktiengesellschaft Osterreich: ECJ 28 Jul 2016

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

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

Commercial, Jurisdiction

Updated: 20 January 2022; Ref: scu.567790

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

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

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

Human Rights, Jurisdiction

Updated: 20 January 2022; Ref: scu.178513

Cherney v Deripaska: ComC 3 Jul 2008

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

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

Cited by:
Cited – 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 . .
Appeal From – Deripaska v Cherney CA 31-Jul-2009
The court considered where the trial of the action should take place.
Held: The defendant’s appeal failed. Even though the rights sought to be protected were of a proprietary nature, where the rights could properly be said to have arisen under . .
Cited – Varsani 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 . .
Cited – Williams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 20 January 2022; Ref: scu.270635

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

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

Scarman J
[1968] P 675, [1967] 3 WLR 401, [1967] 3 All ER 318
England and Wales
Citing:
Cited – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

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

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Family, Litigation Practice, Wills and Probate

Updated: 20 January 2022; Ref: scu.186118

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

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

Lawrence Collins J
[2003] EWHC 1798 (Ch), [2004] 1 Lloyd’s Rep 652
Bailii
Companies Act 1985 402
England and Wales
Citing:
Cited – The Abidin Daver HL 1984
The House considered the application of the doctrine of forum conveniens.
Held: A stay of an English action on the ground of forum non conveniens could be resisted on the ground that justice could not be obtained in the otherwise more . .
Cited – Konamaneni v Rolls Royce Industrial Power (India) Limited ChD 20-Dec-2001
The claimants founded their action on the assertion that the defendants had been corrupt in obtaining contracts in India. The defendants argued that the English courts had no jurisdiction. The claimants held various small shareholdings in a company . .
Cited – MacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation ChD 1986
A plaintiff in an English action had obtained an order against an American bank, served on its London office, requiring production of books and papers at its New York head office.
Held: The court pointed out the distinction between ‘personal . .
Cited – Pickering v Stephenson 1872
A company’s money should not be expended on disputes between the shareholders. . .
Cited – Re Crossmore Electrical and Civil Engineering Ltd 1989
Disputes between shareholders should not be settled with assistance form the funds of the company. . .
Cited – Re A Company No 01126 of 1992 1993
Company funds should not be used to support disputes between shareholders. . .
Cited – Seaconsar 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 . .
Cited – The Sky One 1988
RSC O.11, r.6(3)) did not provide exclusive methods of service. Service might be effected by private means rather than through the methods set out there, provided always that nothing was done in the country where service was to be effected which was . .
Cited – Knauf 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 . .
Cited – Anderton 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 . .
Cited – National Carriers Ltd v Panalpina (Northern) Ltd HL 11-Dec-1980
No Frustration of Lease through loss of access
The tenant’s access to the premises was closed by the local authority because it passed by a derelict and dangerous building. The tenant argued that its tenancy was frustrated.
Held: The lease was not frustrated. The lease had a term of ten . .
Cited – The Chaparral CA 1968
A contract conferred exclusive jurisdiction on the English court as a neutral forum. In the context not only of English and other jurisdiction clauses the court held: ‘In the present case the choice of the parties was the English Court, and . . I . .
Cited – Akai Pty Ltd v People’s Insurance Co Ltd 1998
The principles applicable in deciding whether an exclusive jurisdiction clause applies are the same whether the jurisidiction selected is England or Wales or otherwise. . .
Cited – Import Export Metro Ltd and Another v Compania Sud Americana De Vapores S A ComC 23-Jan-2003
. .
Cited – Attock Cement Co v Romanian Bank for Foreign Trade CA 1989
Where the parties to a contract have agreed to an English forum it would require strong grounds for one of the parties to resist the exercise of jurisdiction by the English court: ‘We should also look with favour on a choice of our own jurisdiction, . .
Cited – British Aerospace v Dee Howard 1993
Where a contract contained an exclusive jurisdiction clause providing for a case to be tried in the UK, it was relevant that the circumstances which might now suggest a trial elsewhere were perfectly foreseeable at the time of the contract. The new . .
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Cited – Credit Suisse Fides Trust SA v Cuoghi; Credit Suisse Fides Trust SA and Amhurst Brown Colombotti (a Firm) CA 11-Jun-1997
The claimant brought proceedings in Switzerland (a party to the Lugano Convention) against the defendant who was domiciled in England, alleging that he had conspired with one of the claimant’s employees to misappropriate some US$ 21 million. It was . .
Cited – REFCO Capital Markets Ltd and Another v Eastern Trading Co, Credit Suisse (First Boston) Ltd and Another CA 17-Jun-1998
An application for Mareva relief was granted under s.25 where proceedings were pending in the US against Lebanese defendants arising out of futures transactions with respect of assets in England. On the application to discharge the order, the lower . .
Cited – Motorola Credit Corporation v Uzan and Others CA 26-Jun-2002
A world wide asset freezing order had been made. The defendants sought that it be set aside. Pending the hearing of their application, they sought also delay of their obligation to co-operate in providing full details of their finances.
Held: . .
Cited – Babanaft 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 . .
Cited – Castanho v Brown and Root (UK) Ltd HL 1981
A claim was made for an anti-suit injunction.
Held: The court is reluctant to make orders which would be ineffective to achieve what they set out to do, but the fear that the defendant will not obey an injunction is not a bar to its grant. The . .

Cited by:
Cited – Basil 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 . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company

Updated: 20 January 2022; Ref: scu.186465

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

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

Hoffmann J
[1986] Ch 482
Bankers Books Evidence Act 1879 87
England and Wales
Citing:
Approved – Regina v Grossman CA 1981
An application was made against Barclays Bank in London to obtain inspection of an account held at a branch of the bank in the Isle of Man.
Held: The Civil Division of the Court of Appeal which determined the application was later held to have . .

Cited by:
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Cited – BAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp v Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc ChD 25-Jul-2003
The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed . .
Cited – Mahme Trust v Lloyds TSB Bank plc ChD 29-Jul-2004
The claimant began an action in England. The defendant sought a stay, saying the appropriate forum was Switzerland.
Held: The defendant was a truly multi-national orgaisation and had branches in many countries. The choice of forum belongs to . .
Cited – Mitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .

Lists of cited by and citing cases may be incomplete.

Banking, Jurisdiction

Updated: 20 January 2022; Ref: scu.183552

Mt Hojgaard And Zublin v Banedanmark: ECJ 24 May 2016

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

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

Jurisdiction

Updated: 19 January 2022; Ref: scu.564890

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

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

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

Jurisdiction

Updated: 12 January 2022; Ref: scu.561501

Knight v Axa Assurances: QBD 24 Jul 2009

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

Sharp J
[2009] EWHC 1900 (QB), [2009] Lloyds Rep IR 667
Bailii
Brussels I (Council Regulation 44/2001, Supreme Court Act 1981 35A
England and Wales
Citing:
Cited – Raffelsen Zentralbank Osterreich Ag v Five Star General Trading Llc and Others CA 1-Mar-2001
An assigned marine insurance policy was subject to a claim. The issue was the ability of an assignee to claim as a claim in contract where the proper law was that under which the contract was made, or a claim of an intangible right to claim against . .
Cited – Maher 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. . .
Cited – FBTO 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 . .
Cited – Harding 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: . .
Cited – Criminal 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 . .
Cited – Mendes 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 . .
Cited – Macmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) CA 2-Nov-1995
The question of ownership of a company is to be decided according to law of country where the company is incorporated. Conflict of laws rules are to be used to look to the issue in the case not the cause of action.
Staughton LJ said: ‘In any . .
Cited – Macmillan 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 . .
Cited – Jefford 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 . .
Cited – Midland International Trade Services v Al Sudairy ChD 11-Apr-1990
The court had power to order the payment of interest on a judgment of a court in Saudi Arabia even though a Saudi court would have applied Sharia law. That law follows the teaching in the Koran forbidding the payment or receipt of interest. . .
Cited – Kuwait Oil Tanker Company SAK and another v Bader and others 17-Dec-1998
. .

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

Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages, Jurisdiction

Updated: 12 January 2022; Ref: scu.375078

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

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

The Hon Mr Justice Moore-Bick
[2003] EWHC 2632 (Comm)
Bailii
England and Wales
Cited by:
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Appeal from – Limit (No 3) Ltd and others v PDV Insurance Company CA 11-Apr-2005
There had been substantial oil leaks in Venezuela, which had been insured and then re-insured in London. Permission had been given to serve the defendant out of the jurisdiction, but that permission had been set aside. The claimant now appealed.
Jurisdiction

Updated: 12 January 2022; Ref: scu.187556

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

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

Leggatt J
[2016] EWHC 454 (Comm)
Bailii

Jurisdiction

Updated: 11 January 2022; Ref: scu.560756

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

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

[1563] Mor 7324
Bailii

Scotland, Jurisdiction

Updated: 11 January 2022; Ref: scu.560740

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

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

Henry Carr J
[2016] EWHC 217 (Ch), [2016] WLR(D) 101
Bailii, WLRD
Civil Procedure Rules 11(2), Regulation (EC) 44/2001 1(2)(a) 24
England and Wales
Citing:
Cited – 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 . .
Cited – Harada Limited (T/A Chequepoint) v Turner CA 2-Dec-2003
Applications for leave to appeal. The claimant had alleged unfair dismissal. The respondent denied jurisdiction. . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Wills and Probate, European

Updated: 10 January 2022; Ref: scu.560278

Hill v Generali Zrt: QBD 14 Dec 2021

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

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

Insurance, Jurisdiction

Updated: 10 January 2022; Ref: scu.670544

Apollo Ventures Co Ltd v Manchanda: ComC 30 Nov 2021

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

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

Jurisdiction

Updated: 09 January 2022; Ref: scu.670488

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

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

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

Jurisdiction, Trusts

Updated: 08 January 2022; Ref: scu.539286