The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from the basic principle of domicile in Article 2, the provisions of Article 5 are to be construed restrictively. In this case, the beneficiary was being sued for overpayment as part of the trust. ‘It would be quite inconsistent with the restrictive approach to the special head of jurisdiction in Article 5(6) to read the words ‘as trustee’ in the expansive way, in which they would have to be read, to produce a result in favour of the claimants.’ Even if the powers on which the claim was based are classified as fiduciary, the first defendant is not being sued in the second claim ‘as a trustee . . of a trust created . . by a written instrument’ for the purposes of Article 5(6).
Lawrence Collins LJ, Jacobs LJ
 EWCA Civ 1065
Council Regulation (EC) 44/2001 2 5(6), Jurisdiction and Judgments Act 1982
England and Wales
Appeal from – 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 . .
Cited – Duke of Marlborough v Attorney General 1945
The Court was asked whether foreign shares held on trust were taxable as on a succession on the death of the beneficiary of the trust.
Held: The proper law of a marriage settlement ‘can only be the law by reference to which the settlement as . .
Cited – In re Diplock’s estate CA 1948
After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were . .
Cited – Bonython v Commonwealth of Australia PC 1951
Lord Simonds defined the proper law governing a contract to be: ‘the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connection.’ . .
Mentioned – Ministry of Health v Simpson; In re Diplock dec HL 1950
The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . .
Cited – Reisch Montage AG v Kiesel Baumaschinen Handels GmbH (Area Of Freedom, Security and Justice) ECJ 13-Jul-2006
Europa Regulation (EC) No 44/2001 – Article 6(1) – Cases where there is more than one defendant – Action brought in a Member State against a person domiciled in that State who is the subject of bankruptcy . .
Cited – Chellaram and Another v Chellaram and others (No 2) ChD 16-Apr-2002
One of the defendants had not been properly served by posting the proceedings to an address at which he stayed on his very occasional visits to London. The proceedings had not been issued for the purposes of service abroad, because at the time of . .
Cited – In re United Railways of the Havana v Regla Warehouses Ltd CA 1960
There had been a financing transaction by way of a lease by a Pennsylvania corporation, as trustee for foreign bondholders, to an English company carrying on business in Cuba, of assets in Cuba. By a Cuban decree the assets were transferred to the . .
Cited – Kleinwort Benson Limited v City of Glasgow District Council HL 19-Jun-1997
Restitution when Contract Void ab initio
A claim for restitution of money paid under a contract which was void ab initio is not a claim in contract, nor tort, nor delict, it was justiciable only in the court of domicile. The Brussels Convention does not decide jurisdiction. ‘But it is . .
Cited – Kalfelis v Bankhaus Schroder, Munchmeyer, Hengst and Co and others ECJ 27-Sep-1988
ECJ For Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters to apply, a connection must exist between the various actions brought . .
Cited – In re United Railways of Havana and Regla Warehouses Ltd; Tomkinson v First Pennsylvania Banking and Trust Co HL 1960
A sum was held to be due from that company in US dollars under a lease and another agreement which were both governed by the law of Pennsylvania.
Held: The sum provable in the liquidation of the company was to be converted at the rates of . .
Cited – Mettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
Cited – Re Freiburg Trust 2004
(Jersey) . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2021; Ref: scu.276660