Category: Jurisdiction

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

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

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

Jurisdiction

Updated: 06 January 2022; Ref: scu.670489

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

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

Teare J
[2015] EWHC 3076 (Comm)
Bailii

Jurisdiction

Updated: 05 January 2022; Ref: scu.554220

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

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

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

Jurisdiction

Updated: 05 January 2022; Ref: scu.554118

SF v HL: FD 8 Oct 2015

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

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

Children, Jurisdiction

Updated: 05 January 2022; Ref: scu.553919

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

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

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

Jurisdiction

Updated: 05 January 2022; Ref: scu.553683

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

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

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

Jurisdiction

Updated: 04 January 2022; Ref: scu.553091

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

EAT JURISDICTIONAL POINTS
By a Treaty of 1960, the UK constituted the island of Cyprus an independent state, but retained two areas of the Island as military base areas (the Sovereign Base Areas – ‘SBAs’). Civilians who were dependents of service personnel or civil servants accompanying the Armed Forces in the SBAs engaged while in Cyprus as employees of the MOD complained to an ET in the UK that the terms of other civilians also engaged locally were better, and that this was discriminatory on the grounds of national origin or marital status. The ET had jurisdiction only if the territorial reach of the Equality Act 2010 encompassed the Claimants. An EJ held it did, since the connection with the UK and UK law was sufficiently close for this to be the case. In doing so, she considered that English law applied to the contracts of employment the Claimants had agreed with the MOD. This was held in error, since the law of the SBAs was that which applied (although one effect of this was that it many respects it adopted principles of or familiar to English Law), and it invalidated her overall conclusion. In particular, she had not been shown the authorities which made it clear that the Crown in relation to a British Overseas Territory such as an SBA was the Crown acting in right of the BOT, and not in right of the UK. Had she been, she would not necessarily have concluded as she did as to the strength of the connection between the Claimants and UK law. The question of the territorial reach of the Equality Act was remitted for fresh determination by the same judge.

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

Employment, Jurisdiction

Updated: 03 January 2022; Ref: scu.550674

Brownlie v Four Seasons Holdings Incorporated: CA 3 Jul 2015

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

Arden, Bean, King LJJ
[2015] EWCA Civ 665, [2015] 2 CLC 151, [2015] CP Rep 40, [2016] PIQR P2, [2015] WLR(D) 292, [2016] 1 WLR 1814
Bailii, WLRD
Council Regulation (EC) No 864/2007, Civil Procedure Rules 6, Law Reform (Miscellaneous Provisions) Act 1934
England and Wales
Cited by:
At CA – 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 . .

Lists of cited by and citing cases may be incomplete.

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

Updated: 01 January 2022; Ref: scu.549764

TSN Kunststoffrecycling Gmbh v Jurgens: CA 25 Jan 2002

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

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

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Civil Procedure Rules, European

Updated: 01 January 2022; Ref: scu.167467

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Criminal Practice, International, Jurisdiction

Updated: 31 December 2021; Ref: scu.463144

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

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

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

Jurisdiction, Litigation Practice

Updated: 30 December 2021; Ref: scu.547124

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

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

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

Jurisdiction

Updated: 29 December 2021; Ref: scu.545617

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

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

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

Lists of cited by and citing cases may be incomplete.

Defamation, Jurisdiction, Information

Updated: 29 December 2021; Ref: scu.670640

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

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

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

Jurisdiction

Updated: 29 December 2021; Ref: scu.657562

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

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

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

Jurisdiction, International, Arbitration

Updated: 27 December 2021; Ref: scu.542026

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

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

[1978] QB 708, [1976] ECR 1735
European
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 27 December 2021; Ref: scu.220245

Snetzko v Snetzko: 27 Jun 1996

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

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

Lists of cited by and citing cases may be incomplete.

Children, International, Jurisdiction

Updated: 27 December 2021; Ref: scu.654501

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

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

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

Jurisdiction

Updated: 27 December 2021; Ref: scu.667384

Chai v Peng (2): FD 17 Oct 2014

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

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

Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction

Updated: 23 December 2021; Ref: scu.538864

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

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

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

Lists of cited by and citing cases may be incomplete.

Insolvency, Jurisdiction

Leading Case

Updated: 23 December 2021; Ref: scu.457573

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

The court had no jurisdiction in a claim by the three claimants against their mother, the first defendant, arising out of a trust created by their father. The family was Spanish and the trust was expressed to be governed by English law. The defendants said that the income subject to the claim was subject to Spanish law.

[2008] EWHC 259 (Ch), [2008] 3 WLR 309
Bailii
Council Regulation (EC) 44/2001 5(6), Jurisdiction and Judgments Act 1982
England and Wales
Cited by:
Appeal from – 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 . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 23 December 2021; Ref: scu.264586

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

The claimants founded their action on the assertion that the defendants had been corrupt in obtaining contracts in India. The defendants argued that the English courts had no jurisdiction. The claimants held various small shareholdings in a company used as a vehicle for paying bribes, and sought return of the money paid. It was a derivative action.
Held: The company should normally be claimant in such an action. Such claims need not be restricted to English companies, and the English courts were the appropriate lex fori for this claim, but only if there was no other appropriate forum. The parties could offer to submit to Indian jurisdiction, and the defendant had done so. The courts of the place of incorporation will almost invariably be the appropriate forum for issues which relate to the existence of the right of shareholders to sue on behalf of the company. Most of the witnesses would be in India. The Indian connections of this case were overwhelming.

Justice Lawrence Collins
Times 31-Jan-2002, [2001] EWHC Ch 470, [2002] 1 WLR 1269
Bailii
Civil Procedure Rules 19.9 6.21 2(a)
England and Wales
Citing:
Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
Cited – Heyting v Dupont CA 1964
The plaintiff owned shares in a company registered in Jersey and created to make the most of an invention. The articles contained a deadlock provision.
Held: This was ‘essentially a dispute between two discordant partners’ There was a general . .
Applied – BP Exploration Co (Libya) Ltd v Hunt 1976
The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
The court should be careful before describing as non-disclosure as material not included in an affidavit in . .

Cited by:
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 – 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 – Metropolitan International Schools Ltd. (T/A Skillstrain And/Or Train2Game) v Designtechnica Corp (T/A Digital Trends) and Others QBD 16-Jul-2009
The claimant complained that the defendant had published on its internet forums comments by posters which were defamatory of it, and which were then made available by the second defendant search engine. The court was asked what responsibility a . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Cited – Iesini and Others v Westrip Holdings Ltd and Others ChD 16-Oct-2009
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company, Civil Procedure Rules

Updated: 23 December 2021; Ref: scu.167403

John Pfeiffer Pty Limited v Rogerson: 16 Apr 1999

(High Court of Australia) The double actionability rule should be discarded with regard to claims brought in an Australian court in respect of a civil wrong arising out of acts or omissions that occurred wholly within one or more of the law areas of the Commonwealth of Australia.

[2000] HCA 36, (2000) 203 CLR 503
Austlii
Australia
Cited by:
Cited – Harding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Jurisdiction, Torts – Other

Updated: 21 December 2021; Ref: scu.222523

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

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

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

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Transport

Updated: 20 December 2021; Ref: scu.264639

Young v Anglo American South Africa Ltd and Others: CA 31 Jul 2014

The parties disputed whether the claimant had a ‘good arguable case’ that the defendant had its central administration in England so as to give the court jurisdiction.

Lord Dyson MR, Aikens LJ, Janet Smith D
[2014] EWCA Civ 1130, [2014] WLR(D) 370
Bailii, WLRD
Brussels 1 Regulation (Regulation EC 44/2001 60
England and Wales

Jurisdiction

Updated: 18 December 2021; Ref: scu.535462

Vallee And Others v Dumergue: CExC 6 Jul 1849

A provision in the constitution of a company regulated proceedings against shareholders. The plaintiff liquidators sought enforcement in England of a French judgment against a shareholder for his contribution to the debts of the company. The judgment debtor was resident in England. It was pleaded by the liquidators that under French law it was necessary for a shareholder to elect a domicile in France, at which the directors of the company might notify him of all proceedings relative to the company, or to the defendant as such shareholder; and that the defendant made election of domicile at a place in Paris, and gave notice thereof to the plaintiffs.
Held: Submission to the foreign court would occur where the judgment debtor had ‘expressly or implicitly contracted to submit to the jurisdiction’ of the foreign court.
It was not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have had actual notice of them.

Alderson, B
[1849] EngR 834, (1849) 4 Exch 290, (1849) 154 ER 1221
Commonlii
England and Wales
Cited by:
Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company, Natural Justice

Updated: 18 December 2021; Ref: scu.299139

Sarrio SA v Kuwait Investment Authority: ComC 12 Oct 1995

cw Conflict of laws – Brussels Convention – articles 21-22 – right to invoke – independent of domicile – forum conveniens – defendant domiciled in non-Contracting State – exclusion of common law rules – same cause of action – meaning – jurisdiction – related actions – meaning

Mance J
[1996] 1 Lloyd’s Rep 650, [1996] CLC 211
Brussels Convention 21 22 23
England and Wales
Citing:
Reversed on appeal – Sarrio SA v Kuwait Investment Authority CA 12-Aug-1996
. .

Cited by:
Appeal from – Sarrio SA v Kuwait Investment Authority CA 12-Aug-1996
. .
At First Instance – Sarrio Sa v Kuwait Investment Authority HL 17-Nov-1997
The parties were spanish companies. They were involved in proceedings against each other in Spain. The respondent had begun an action here for negligent misrepresentation against the appellant. The appellant argued that given the Spanish . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 18 December 2021; Ref: scu.183291

Sarrio SA v Kuwait Investment Authority: CA 12 Aug 1996

[1996] EWCA Civ 575, [1997] 1 Lloyd’s Rep 113, [1997] CLC 280, [1997] IL Pr 481, Independent 03-Oct-1996
England and Wales
Citing:
Appeal from – Sarrio SA v Kuwait Investment Authority ComC 12-Oct-1995
cw Conflict of laws – Brussels Convention – articles 21-22 – right to invoke – independent of domicile – forum conveniens – defendant domiciled in non-Contracting State – exclusion of common law rules – same . .

Cited by:
Reversed on appeal – Sarrio SA v Kuwait Investment Authority ComC 12-Oct-1995
cw Conflict of laws – Brussels Convention – articles 21-22 – right to invoke – independent of domicile – forum conveniens – defendant domiciled in non-Contracting State – exclusion of common law rules – same . .
Appeal from – Sarrio Sa v Kuwait Investment Authority HL 17-Nov-1997
The parties were spanish companies. They were involved in proceedings against each other in Spain. The respondent had begun an action here for negligent misrepresentation against the appellant. The appellant argued that given the Spanish . .
Cited – In re The Alexandros T SC 6-Nov-2013
The parties had disputed insurance claims after the foundering of the Alexandros T. After allegations of misbehaviour by the underwriters, the parties had settled the claims in a Tomlin Order. Five years later, however, the shipowners began . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 18 December 2021; Ref: scu.140442

BB and Others v Al Khayyat and Others: QBD 17 Sep 2021

Application by the third defendant the bank for orders vacating the forthcoming hearing of and temporarily staying more generally a forum non conveniens application made by it in these proceedings. The substantive claim is a foreign law tort claim for damages brought by a number of anonymised individuals.

[2021] EWHC 2551 (QB)
Bailii
England and Wales

Torts – Other, Jurisdiction

Updated: 17 December 2021; Ref: scu.669930

Harding v Wealands: CA 17 Dec 2004

The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to be displaced. Roerig implied a bright line between matters of assessment and heads of damages. Applying Boys v Chapman there was no such clear line. Though the 1995 Act may have abolished the common law rule of double actionability, at the same time it intended to vary the common law so far as quantification and assessment of damages was concerned. The meaning of substance and procedure for the purposes of section 14 of the 1995 Act must be sought in the context of the 1995 Act. (Majority) The judge had been wrong to apply English law in preference to the restrictions on damages which would apply under the New South Wales Act.
Lady Justice Arden: ‘In the context of section 14, a principled approach requires the court to start from the position that it has already decided that the proper law of the tort is not the law of the forum, ie that some other law applies to the tort, either because it is the lex loci delicti or because it is substantially more appropriate than the lex loci delicti. On this basis, a reference to the law of the forum must be the exception, and it must be justified by some imperative which, relative to the imperative of applying the proper law, has priority.’ There is ‘a guiding principle’ that: ‘Once the court has decided that the law of New South Wales is the proper law of the tort, it is logical, so far as possible, to apply the law of New South Wales throughout.’

Lord Justice Waller Lady Justice Arden Sir William Aldous
[2004] EWCA Civ 1735, Times 05-Jan-2005, [2005] 1 WLR 1539
Bailii
Private International Law (Miscellaneous Provisions) Act 1995 11
England and Wales
Citing:
Appeal from – Harding v Wealands QBD 27-May-2004
The claimant had been injured in a traffic accident in Australia. The parties lived together in England, but the driver was insured by an Australian company. He sought to sue here to avoid a limitation on damages imposed by Australian law. The issue . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Cited – Boys v Chaplin HL 1969
The plaintiff sued in England for a traffic accident which had happened in Malta. The law of Malta would have denied certain elements of damages which would be available in this jurisdiction.
Held: Liability in respect of the road accident in . .
Cited – Edmunds v Simmonds QBD 4-Oct-2000
The claimant suffered damages in a road traffic accident in Spain caused by the respondent. A Spanish court would have allowed much lower damages. Such damages should normally be assessed in accordance with the law of the country where the accident . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Cited – Mehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
Cited – Stevens v Head 18-Mar-1993
(High Court of Australia) The court considered a claim for damages arising out of a motor accident in New South Wales, where the claim had been brought in the courts of Queensland. The questions arose as to whether or not a provision in the Motor . .
Cited – Cope v Doherty 1858
Owners of an American ship which had collided with and sunk another American ship applied to limit their liability pursuant to section 504 of the Merchant Shipping Act 1854.
Held: The section did not apply to collisions between foreigners. . .
Cited – Cope v Doherty CA 2-Jan-1858
Turner LJ: ‘An attempt was made on the part of the appellants to bring this case within Don v Lippman and cases of that class, but I think those cases have no bearing upon the point. This is a question of liability, and not of procedure.’ . .
Cited – John Pfeiffer Pty Limited v Rogerson 16-Apr-1999
(High Court of Australia) The double actionability rule should be discarded with regard to claims brought in an Australian court in respect of a civil wrong arising out of acts or omissions that occurred wholly within one or more of the law areas of . .
Cited – Phillips v Eyre CEC 1870
The court considered the rule of double actionability. The court laid down the test for whether a tort committed abroad was actionable in this jurisdiction: ‘As a general rule, in order to found a suit in England for a wrong alleged to have been . .
Cited – Base Metal Trading Ltd v Shamurin CA 14-Oct-2004
The claimant sought damages from what were said to be speculative trades carried out by the defendant whilst working in Russia. The claims were in both equity and in tort. He was a director of the company which was incorporated in Guernsey.
Cited – Konamameni v Rolls Royce Industrial Power (India) Ltd 2002
The entitlement to bring a derivative action in the English courts is governed by the law of the place of incorporation of the company in question. . .
Cited – Caltex Singapore Pte Ltd v BP Shipping Ltd 1996
A provision of Singapore law giving a ship-owner the right to limit his liability for damage resulting from a collision in Singapore was procedural, or at least not substantive. The limitation in question did not qualify the right of the claimants . .

Cited by:
Cited – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
Appeal from – 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: . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Jurisdiction

Updated: 16 December 2021; Ref: scu.220346

Chowdhury v PZU Sa: QBD 12 Nov 2021

Whether the courts of England and Wales have jurisdiction to try a personal injury case brought by the Claimant against the Defendant arising from a road traffic accident. The parties disputed the claimant’s domicile.

Mr Justice Ritchie
[2021] EWHC 3037 (QB)
Bailii
England and Wales

Jurisdiction

Updated: 13 December 2021; Ref: scu.669933

Clark (Inspector of Taxes) v Oceanic Contractors Inc: HL 16 Dec 1982

HL Income tax, Schedule E – Non-resident employer – Employees working in U.K. sector of North Sea – Whether employer liable to deduct tax from emoluments – Income Tax (Employments) Regulations 1973 – Income and Corporation Taxes Act 1970, s 181 and s 204 – Finance Act 1973, 5 38 – Continental Shelf Act 1964 – A foreign company which was not resident in, but maintained places of business within the United Kingdom, engaged personnel (United Kingdom residents and others) to work on barges and other vessels in the United Kingdom sector and other sectors of the North Sea. The employees were paid in U.S. dollars by cheques drawn in Brussels on a New York bank account. Cheques might be (a) deposited in a bank designated by the employee, (b) seat to any person designated by the employee or (c) delivered to the employee himself on his barge or vessel.
The House considered the principle of statutory interpretation that a statute should be confined to the territory within which it operates. Lord Wilberforce said: ‘That principle, which is really a rule of construction of statutes expressed in general terms, and which as James LJ said is a ‘broad principle’, requires an enquiry to be made as to the persons with respect to whom Parliament is presumed, in the particular case, to be legislating. Who, it is to be asked, is within the legislative grasp or intendment, of the statute under consideration?’ and
Lord Scarman said: ‘the general principle . . is simply that, unless the contrary is expressly enacted or is so plainly implied that the courts must give effect to it, United Kingdom legislation is applicable only to British subjects or to foreigners who by coming to the United Kingdom, whether for a short or a long time, have made themselves subject to British jurisdiction. Two points would seem to be clear: first, that the principle is a rule of construction only, and secondly, that it contemplates mere presence within the jurisdiction as sufficient to attract the application of British legislation.’
Whether and to what extent a law applies in relation to foreigners outside the jurisdiction depends upon who is ‘within the legislative grasp, or intendment’ of the relevant provision.

Lord Wilberforce, Lord Scarman
[1983] 2 AC 130, [1982] UKHL TC – 56 – 183
Bailii
Income Tax (Employments) Regulations 1973, Income and Corporation Taxes Act 1970 181 204, Finance Act 1973 38, Continental Shelf Act 1964
England and Wales
Citing:
Approved – Ex parte Blain; In re Sawers CA 1-Aug-1879
Where legislation regulates the conduct of an individual, it may be so construed as to limit it to conduct by United Kingdom citizens anywhere.
James LJ referred to ‘broad, general, universal principle that English legislation, unless the . .

Cited by:
Cited – Serco Ltd v Lawson and Foreign and Commonwealth Office CA 23-Jan-2004
The applicant had been employed to provide services to RAF in the Ascension Islands. He alleged constructive dismissal. There was an issue as to whether somebody working in the Ascension Islands was protected by the 1996 Act. The restriction on . .
Cited – Gaudiya Mission and others v Brahmachary CA 30-Jul-1997
The High Court had found the plaintiff to be a charity, and ordered the Attorney-General to be joined in. The A-G appealed that order saying that the plaintiff was not a charity within the 1993 Act. The charity sought to spread the Vaishnava . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited – Agassi v Her Majesty’s Inspector of Taxes HL 17-May-2006
The tax payer played tennis and was paid sums for when he played in England. The sums were paid to his overseas based company.
Held: The revenue’s appeal succeeded. The ‘legislative intendment in relation to sections 555 and 556, and their . .
Cited – Office of Fair Trading v Lloyds TSB Bank PlC and Others HL 31-Oct-2007
The House was asked whether the liability of a credit card company under the 1974 Act applied where the contract was performed abroad and subject to foreign law.
Held: The principle which disapplied an English statute in an extra-territorial . .
Mentioned – 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 – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Taxes Management, Income Tax

Updated: 10 December 2021; Ref: scu.192277

P v G: FD 30 Apr 2010

Application made by the plaintiff father, P, by way of an originating summons. He seeks an order that certain Children Act proceedings commenced by the defendant mother, G, should be stayed pursuant to s.5 of the Family Law Act 1986. The basis of his application is that the matters before the court should be heard in Scotland and not England.

Mrs Justice Eleanor King
[2010] EWHC 1311 (Fam)
Bailii
England and Wales

Jurisdiction, Children

Updated: 10 December 2021; Ref: scu.420700

Ex parte Blain; In re Sawers: CA 1 Aug 1879

Where legislation regulates the conduct of an individual, it may be so construed as to limit it to conduct by United Kingdom citizens anywhere.
James LJ referred to ‘broad, general, universal principle that English legislation, unless the contrary is expressly enacted or so plainly implied as to make it the duty of an English court to give effect to an English statute, is applicable only to English subjects or to foreigners who by coming into this country, whether for a long or short time, have made themselves during that time subject to English jurisdiction . . But, if a foreigner remains abroad, if he has never come into this country at all, it seems to me impossible to imagine that the English legislature could have ever intended to make such a man subject to particular English legislation.’

James LJ
(1879) 12 Ch D 522, [1879] UKLawRpCh 277
Commonlii
England and Wales
Cited by:
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited – Agassi v Her Majesty’s Inspector of Taxes HL 17-May-2006
The tax payer played tennis and was paid sums for when he played in England. The sums were paid to his overseas based company.
Held: The revenue’s appeal succeeded. The ‘legislative intendment in relation to sections 555 and 556, and their . .
Cited – Office of Fair Trading v Lloyds TSB Bank PlC and Others HL 31-Oct-2007
The House was asked whether the liability of a credit card company under the 1974 Act applied where the contract was performed abroad and subject to foreign law.
Held: The principle which disapplied an English statute in an extra-territorial . .
Approved – Clark (Inspector of Taxes) v Oceanic Contractors Inc HL 16-Dec-1982
HL Income tax, Schedule E – Non-resident employer – Employees working in U.K. sector of North Sea – Whether employer liable to deduct tax from emoluments – Income Tax (Employments) Regulations 1973 – Income and . .
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 – Bilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Insolvency

Updated: 10 December 2021; Ref: scu.238147

Axis Corporate Capital UK Ltd and Others v ABSA Group Ltd and Others: ComC 2 Feb 2021

Application by the claimants for three things: (1) an interim anti-suit injunction; (2) permission, insofar as it is necessary to obtain permission, to serve the claim form and other associated documents on the defendants out of the jurisdiction; and (3) permission to serve the claim form and other documents on the defendants by alternative means.

Mr Justice Calver
[2021] EWHC 225 (Comm)
Bailii
England and Wales

Jurisdiction, Litigation Practice

Updated: 07 December 2021; Ref: scu.658134

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

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

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough Lord Millett
[2003] UKHL 31, Times 13-Jun-2003, Gazette 17-Jul-2003, [2003] 3 All ER 501, [2004] 1 AC 300, [2003] ILPr 45, [2003] 2 All ER (Comm) 101, [2003] 1 CLC 1206, [2003] 3 WLR 14
House of Lords, Bailii
Civil Jurisdiction and Judgments Act 1982 3A
England and Wales
Citing:
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 – Denilauler v SNC Couchet Freres (Judgment) ECJ 21-May-1980
The courts of the place or, in any event, of the Contracting State, where the assets subject to the measures sought are located, are those best able to assess the circumstances which may lead to the grant or refusal of the measures sought or to the . .
Cited – AS-Autoteile Service GmbH v Pierre Malhe (Judgment) ECJ 4-Jul-1985
The particular areas which fall under Article 16, certain disputes regarding tenancies, companies, registers, industrial property and the enforcement of judgments, are matters which, because of their particular difficulty or complexity, require that . .
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 – Reichert and Kockler v Dresdner Bank ECJ 26-Mar-1992
The case concerned article 16(5) of the Brussels Convention, among other articles.
Held: It is necessary to take account of the fact that the essential purpose of the exclusive jurisdiction of the courts of the place in which the judgment has . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Banking

Updated: 05 December 2021; Ref: scu.183380

Lloyd v Google LLC: SC 10 Nov 2021

No damages for Loss of Control of Data

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

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

Information, Jurisdiction, Litigation Practice

Updated: 04 December 2021; Ref: scu.669785

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

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

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

European, Jurisdiction

Updated: 03 December 2021; Ref: scu.526063

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

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

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

Jurisdiction

Updated: 29 November 2021; Ref: scu.667434

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

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

Tugendhat J
[2014] EWHC 13 (QB), [2014] WLR(D) 21, [2014] FSR 30, [2014] 1 WLR 4155, [2014] EMLR 14, [2014] 1 CLC 201
Bailii, WLRD
Data Protection Act 1998 4(4), Civil Procedure Rules 6.37
England and Wales
Citing:
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 – Kitetechnology v Unicor GmbH Plastmaschinen 1995
It would not be correct to describe a infringement of breach of privacy as a tort. . .
Cited – Bacon v Automattic Inc QBD 2011
Tugendhat J set out the reasons why the existence of a jurisdiction to provide for service out of the jurisdiction, was previously considered doubtful but rightly considered that Cecil v Bayat has now settled the matter, because CPR 6.37(5)(b)(i) . .
Cited – Vestergaard Frandsen A/S and Others v Bestnet Europe Ltd and Others SC 22-May-2013
The claimant companies appealed against a reversal of their judgment against a former employee that she had misused their confidential trade secrets after leaving their employment. The companies manufactured and supplied bednets designed to prevent . .

Cited by:
Appeal from – 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 – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .

Lists of cited by and citing cases may be incomplete.

Information, Jurisdiction

Updated: 28 November 2021; Ref: scu.519957

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

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

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

Jurisdiction

Updated: 27 November 2021; Ref: scu.668511

Re International Tin Council: ChD 1987

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

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

Cited by:
Appeal from – Re International Tin Council CA 1989
Creditors sought to treat the International Tin Council as an ‘association’ for the purposes of a provision under the Companies Act 1985 allowing for unregistered companies to be wound up.
Held: The decision in Re a Company was binding. The . .
Cited – Hackney v Side By Side (Kids) Ltd QBD 14-Jul-2003
The defendant sought a stay of a warrant for possession. It had submitted to an order for possession by consent in return for a promise of alternative accomodation. They sought a stay under section 89, saying that the claimant had not complied with . .
Cited – McGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Cited – Bilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Jurisdiction

Updated: 19 November 2021; Ref: scu.185746

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

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

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

Jurisdiction

Updated: 17 November 2021; Ref: scu.513744

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

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

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

Jurisdiction

Updated: 17 November 2021; Ref: scu.421037

Vizcaya Partners Ltd v Picard and Another: PC 3 Feb 2016

No Contractual Obligation to Try Case in New York

(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The appeal was allowed. There was no basis in the evidence for the assertion that there was a contractual term that Vizcaya submitted to the New York jurisdiction. The jurisdiction agreement would be governed by New York law, and what disputes to which it is applicable would be a question of interpretation governed by the applicable law. But there was no evidence of any rules of interpretation under New York law which could lead the Gibraltar court to the conclusion that any implied submission under the clause would apply to avoidance proceedings.

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Collins
[2016] UKPC 5, [2016] Bus LR 413, [2016] WLR(D) 70
Bailii, WLRD
Foreign Judgments (Reciprocal Enforcement) Act 1933 4(2)
England and Wales
Citing:
Cited – Copin v Adamson CA 1875
The plaintiff sought to enforce here a judgment obtained in France against the defendant, who now pleaded that he was not a native of and had not lived in France. He had not been served with any process or had any involvement in or knowledge of the . .
Cited – Feyerick v Hubbard 1902
A contract between a British subJect and resident and a foreigner provided for the contact to be governed by the courts of Belgium.
Held: The clause was enough to give the Belgian courts jurisdiction and for the finding to be effective though . .
Cited – Schibsby v Westenholz CA 1980
The parties were both Danish, the plaintiffs resident in France and the defendants in London. The plaintiffs now sought to enforce a judgment obtained against the defendangt in France in default of their appearance. The defendants had no property in . .
Cited – Vallee And Others v Dumergue CExC 6-Jul-1849
A provision in the constitution of a company regulated proceedings against shareholders. The plaintiff liquidators sought enforcement in England of a French judgment against a shareholder for his contribution to the debts of the company. The . .
Cited – The Bank of Australasia v Harding 1850
The members, resident in England, of a company formed for the purpose of carrying on business in a place out of England, are bound, in respect of the transactions of that company, by the law of thc country in which the business is carried on . .
Cited – The Bank of Australasia v Nias 1851
By an Act of the Colonial Legislature of New South Wales, it was provided tbat a banking company should sue and be sued in the name of its chairman, arid that execution on any judgment against the oompany might be issued against the property of any . .
Cited – Sirdar Gurdyal Singh v The Rajah of Faridkote PC 28-Jul-1894
(Punjab) THe Rajah of Faridkote had obtained in the Civil Court of Faridkote (a native state) ex parte judgments against Singh (his former treasurer), which he sought to enforce in Lahore, in British India. Singh was not then resident in Faridkote . .
Cited – Blohn v Desser 1962
The plaintiff had obtained a default judgment in Austria against an Austrian partnership, and sought to enforce it in England against an English resident who was a sleeping partner in the firm. Her name was registered as a partner in the commercial . .
Cited – Vogel v RA Kohnstamm Ltd 1973
Enforcement at common law wa sought of an Israeli default judgment in favour of an Israeli buyer of leather against an English company. The plaintiffs argued that the defendants were resident in Israel or had by implication agreed to submit . .
Cited – Rubin and Another v Eurofinance Sa and Others SC 24-Oct-2012
The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
Cited – Mattar and Saba v Public Trustee 1952
Alberta Appellate Division – The court denied enforcement of a Quebec judgment on promissory notes, and held that an agreement to submit to the jurisdiction of a foreign court is not to be implied from the fact that the defendant has entered into a . .
Cited – Sfeir and Co v National Insurance Co of New Zealand 1964
The court was asked as to the enforceability of a Ghanaian judgment on a marine insurance contract under the 1920 Act.
Held: Mocatta J accepted that ‘an implied submission or agreement to submit can satisfy the words of [section 9(2)(b)]’. But . .
Cited – Adams v Cape Industries plc ChD 1990
The piercing of the veil argument was used to attempt to bring an English public company, which was the parent company of a group which included subsidiaries in the United States, within the jurisdiction of the courts of the United States. Where a . .
Cited – Jamieson v Northern Electricity Supply Corp (Private) Ltd 1970
It was argued that there had been an implied submission to the Zambian courts by an employee because the contract of employment was entered into in, and to be performed in Zambia, and assumed to be governed by Zambian law, and that a Azambian . .
Cited – Dunbee Ltd v Gilman and Co, (Australia) Pty Ltd 1968
New South Wales Court of Appeal -The court was asked to enforce an English default judgment. The judgment debtor had ‘agree[d] to submit to the jurisdiction’ of the English court by virtue of a contractual provision that the agreement was ‘governed . .
Cited – Sirdar Gurdyal Singh v The Rajah of Faridkote PC 28-Jul-1894
(Punjab) THe Rajah of Faridkote had obtained in the Civil Court of Faridkote (a native state) ex parte judgments against Singh (his former treasurer), which he sought to enforce in Lahore, in British India. Singh was not then resident in Faridkote . .
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 – Luxor (Eastbourne) v Cooper HL 1941
The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
Cited – SA Consortium General Textiles v Sun and Sand Agencies Ltd CA 1978
The expression ‘agreed . . to submit to the jurisdiction’ in the 1933 Act meant ‘expressed willingness or consented to or acknowledged that he would accept the jurisdiction of the foreign court. It does not require that the judgment debtor must have . .
Cited – King v Brandywine Reinsurance Company CA 10-Mar-2005
Excess of Loss reinsurance. In the civil courts of England and Wales is that (with one obvious exception) expert evidence on the domestic law is inadmissible. . .
Cited – Emmott v Michael Wilson and Partners Ltd CA 12-Mar-2008
The court considered the implication of the obligation of confidentiality in banking contracts or in arbitration agreements. It is ‘really a rule of substantive law masquerading as an implied term’. . .
Cited – Societe Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Cited – AWB (Geneva) SA and Another v North America Steamships Ltd and Another CA 18-Jul-2007
A swap agreement provided that pursuant to the ISDA Master Agreement, the agreement was governed by English law and subject to the exclusive jurisdiction of the English courts. The trustee of one of the parties brought statutory avoidance . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other, Jurisdiction

Leading Case

Updated: 11 November 2021; Ref: scu.559694

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

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

Times 28-Dec-1994, C-406/92, [1994] EUECJ C-406/92, [1995] 1 Lloyd’s Rep 302, [1995] ILPr 81, [1999] QB 515, [1995] All ER (EC) 229, [1994] ECR I-5439, [1995] CLC 275, [1999] 2 WLR 181
Bailii
Brussels Convention 21 22
European
Cited by:
Cited – Sarrio Sa v Kuwait Investment Authority HL 17-Nov-1997
The parties were spanish companies. They were involved in proceedings against each other in Spain. The respondent had begun an action here for negligent misrepresentation against the appellant. The appellant argued that given the Spanish . .
Cited – Television Autonomica Valenciana, Sa v Imagina Contenidos Audiovisuales, Sl ChD 8-Feb-2013
The defendant sought a stay of these proceedings pending the outcome of related proceedings in Spain. The claimant sought a declaration that a contract was terminated and damages for such breach. The Spanish proceedings were first in time.
Cited – In re The Alexandros T SC 6-Nov-2013
The parties had disputed insurance claims after the foundering of the Alexandros T. After allegations of misbehaviour by the underwriters, the parties had settled the claims in a Tomlin Order. Five years later, however, the shipowners began . .
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 – British American Tobacco Denmark A/S v Kazemier Bv SC 28-Oct-2015
One container loaded with cigarettes was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express . .
Cited – Wright v Granath QBD 16-Jan-2020
Defamation across borders – Jurisdiction
The claimant began an action for defamation in an online publication. The Norwegian resident defendant had begun an action there seeking a declaration negating liability. The Court was now asked by the defendant whether under Lugano, the UK action . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, European, Transport

Leading Case

Updated: 11 November 2021; Ref: scu.161021

Ceska Sporitelna As v Gerald Feichter: ECJ 20 Sep 2012

ceska_feighterECJ2012

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

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

European, Jurisdiction, Contract, Consumer

Updated: 11 November 2021; Ref: scu.464420

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

Restitution when Contract Void ab initio

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

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

Cited by:
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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Leading Case

Updated: 11 November 2021; Ref: scu.135204

Apostolides v Orams and Others: CA 19 Jan 2010

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

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

Lists of cited by and citing cases may be incomplete.

Jurisdiction, European

Updated: 11 November 2021; Ref: scu.393376