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Jurisdiction - From: 1960 To: 1969

This page lists 11 cases, and was prepared on 02 April 2018.


 
 Adams v National Bank of Greece; HL 1961 - [1961] AC 255
 
Blohn v Desser [1962] 2 QB 116
1962

Diplock J
Jurisdiction, Contract
The plaintiff had obtained a default judgment in Austria against an Austrian partnership, and sought to enforce it in England against an English resident who was a sleeping partner in the firm. Her name was registered as a partner in the commercial register in Vienna. Held: The claim against her failed. Although the defendant, as a partner in the firm, must be regarded as having carried on business in Vienna through an agent resident there and that, having permitted those matters to be notified to persons dealing with the firm by registration in a public register, she had impliedly agreed with those persons to submit to the jurisdiction of the court of Vienna, and that, therefore, the English courts would recognise the judgment, in this case, the judgment against the partnership firm was not enforceable against the defendant as either it was not a judgment against her personally or, if it was, by reason of the defences which would be available to her in Vienna it was not a final and conclusive judgment.
Diplock J said that it was "clear law that the contract . . to submit to the forum in which the judgment was obtained, may be express or implied" and "It seems to me that, where a person becomes a partner in a foreign firm with a place of business within the jurisdiction of a foreign court, and appoints an agent resident in that jurisdiction to conduct business on behalf of the partnership at that place of business, and causes or permits, as in the present case, these matters to be notified to persons dealing with that firm by registration in a public register, he does impliedly agree with all persons to whom such a notification is made - that is to say, the public - to submit to the jurisdiction of the court of the country in which the business is carried on in respect of transactions conducted at that place of business by that agent."
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 Essex County Council v Essex Incorporated Congregational Church Union; HL 1963 - [1963] AC 808
 
Sfeir and Co v National Insurance Co of New Zealand [1964] 1 Lloyds Rep 330
1964

Mocatta J
Jurisdiction
The court was asked as to the enforceability of a Ghanaian judgment on a marine insurance contract under the 1920 Act. Held: Mocatta J accepted that "an implied submission or agreement to submit can satisfy the words of [section 9(2)(b)]". But it was not enough that it should be reasonable to find the implied submission or agreement: it must be a necessary one. It could not be implied from a choice of the governing law nor from the fact that claims were payable in Ghana.
Administration of Justice Act 1920 9(2)(b)
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In re Grosvenor Hotel, London (No 2) [1965] Ch 1210; [1964] 3 All ER 354
1964
CA
Lord Denning MR, Salmon LJ
Jurisdiction, Litigation Practice
Lord Denning MR said that the Rules Committee "can make rules for regulating and prescribing the procedure and practice of the Court, but cannot alter the rules of evidence." Public policy protects against disclosure any documents which relate to the framing of government policy at a high level.
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Garthwaite v Garthwaite [1964] P 356
1964
CA
Diplock LJ
Jurisdiction
The court discussed what was constitutive jurisdiction: "The 'jurisdiction' of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of those factors."
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In the Estate of Fuld, decd (No 3) [1968] P 675; [1967] 3 WLR 401; [1967] 3 All ER 318
1967
ChD
Scarman J
Jurisdiction, Family, Litigation Practice, Wills and Probate
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile. Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the legal system of the territory which invokes his personal law is based on a combination of residence and intention. Everybody has a domicile of origin, which may be supplanted by a domicile of choice.
Scarman J said: "First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time." and
"(1) The domicile of origin adheres unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it is affirmatively shown that the propositus is resident in a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn; the ultimate decision in each case is one of fact-of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres . . ." and
"necessary intention must be clearly and unequivocally proved. " The domicile of origin is more enduring than the domicile of choice: " . . It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the person asserting the change . . What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B in Barry v. Butlin [1838] 2 Moo P.C.C. 480) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear-first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words."
Scarman J dismissed the idea that the standard of proof required to prevent an inference of the revival of a domicile of origin on the loss of a domicile of choice was the criminal standard. An inference drawn by the court must be consistent with all the relevant proved or admitted facts. He said: "There remains the question of standard of proof. It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change. But it is not so clear what is the standard of proof: is it to be proved beyond reasonable doubt or upon a balance of probabilities, or does the standard vary according to whether one seeks to establish abandonment of a domicile of origin or merely a switch from one domicile of choice to another? Or is there some other standard?
In Moorhouse v. Lord, Lord Chelmsford said that the necessary intention must be clearly and unequivocally proved. In Winans v. Att.-Gen., Lord Macnaghten said that the character of a domicile of origin "is more enduring, its hold stronger and less easily shaken off." In Ramsay v. Liverpool Royal Infirmary, the House of Lords seemed to have regarded the continuance of a domicile of origin as almost an irrebuttable presumption. Danger lies in wait for those who would deduce legal principle from descriptive language. The powerful phrases of the cases are, in my opinion, a warning against reaching too facile a conclusion upon a too superficial investigation or assessment of the facts of a particular case. They emphasise as much the nature and quality of the intention that has to be proved as the standard of proof required. What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B. in Barry v. Butlin) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear - first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words."
. . And: "when all is dark, it is dangerous for a court to claim that it can see the light."
When the court is asked to grant probate in solemn form it is called upon to decide whether the instrument propounded expresses the real intention of the testator. The law requires the court to exercise vigilant care and scrutiny whenever a case reveals reasonable grounds for suspicion. Scarman J said: "Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguard in will cases. The first type of safeguard is part of the substantive law - the requirements of proper form and due execution. Such requirements . . are no mere technicalities. They are the first line of defence against fraud upon the dead.
The second type of safeguard is the second line of defence. It is invoked where there are circumstances which give rise to suspicion; it is the safeguard of strict proof. In cases where no suspicion reasonably arises the court will allow inferences - presumptions as they are sometimes called - to be drawn from the regularity of a testamentary instrument upon its face, or the fact of due execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the will: and 'he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator'."
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Boys v Chaplin [1968] 2 QB 1; [1967] EWCA Civ 3; [1968] 1 All ER 283; [1968] 2 WLR 328
1968
CA
Lord Denning MR, Lord Upjohn
Jurisdiction, Damages
The plaintiff had been injured in a road accident in Malta. By the law of Malta, non-economic damage (pain and suffering, loss of amenity) was not actionable. Only financial loss was compensatable. The plaintiff brought proceedings in England. The court was asked whether the rule excluding liability for non-economic damage was part of the substantive law of Malta or concerned only the remedies which a Maltese court could provide.
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[ Bailii ]

 
 The Chaparral; CA 1968 - [1968] 2 Lloyds Rep 158
 
Boys v Chaplin [1971] AC 356; [1969] 3 WLR 322; [1969] 2 All ER 1085
1969
HL
Hodson, Wilberforce, Pearson LL
Damages, Jurisdiction
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 which only English parties were involved was governed by English law. The House was asked whether the rule which excluded liability for non-economic damages was substantive law or concerned only the remedies available. (Majority) The rule was part of the substantive law of tort liability. This was a 'general' rule which would 'normally' apply to foreign torts. The rule should be interpreted flexibly, 'so as to leave some latitude in cases where it would be against public policy to admit or to exclude claims'. So far as damages are concerned it is a question for the substantive law whether a head of damage is recoverable, but quantification of the actual head is procedural. The House also considered the double-actionability rule.
Lord Hodson said: "I am now, however, persuaded that questions such as whether loss of earning capacity or pain and suffering are admissible heads of damage must be questions of substantive law. The law relating to damages is partly procedural and partly substantive, the actual quantification under the relevant heads being procedural only."
Lord Wilberforce said: "The broad principle should surely be that a person should not be permitted to claim in England in respect of a matter for which civil liability does not exist, or is excluded, under the law of the place where the wrong was committed. This non-existence of exclusion may be for a variety of reasons and it would be unwise to attempt a generalisation relevant to the variety of possible wrongs. But in relation to claims for personal injuries one may say that provisions of the lex delicti, denying, or limiting, or qualifying recovery of damages because of some relationship of the defendant to the plaintiff, or in respect of some interest of the plaintiff (such as loss of consortium) or some head of damage (such as pain and suffering) should be given effect to."
Lord Pearson said: "If the difference between the English law and the Maltese law could be regarded only as a difference of procedural (or adjectival or non-substantive) law, there would be an easy solution of the problem in this appeal. On that basis the nature and extent of the remedy would be matters of procedural law regulated by the lex fori, which is English, and the proper remedy for the plaintiff in this case according to English law would be that he should recover damages for all the relevant consequences of the accident, including pain and suffering as well as pecuniary expense and loss…But I am not convinced that the difference between the English law and the Maltese law can reasonably be regarded as only a difference of procedural law. There is a radical difference in the cause of action, the right of action, the jus actionis. A claim to be reimbursed or indemnified or compensated for actual economic loss is substantially different in character from a claim for damages for all the relevant consequences of the accident to the plaintiff, including pain and suffering. If an accident caused no economic loss, but only pain and suffering, there would be a cause of action according to English law, but not according to Maltese law. Surely that must be a matter of substantive law."
Lord Guest (dissenting): "It would not be correct, in my view, to talk of compensation for pain and suffering as a head of damage apart from patrimonial loss. It is merely an element in the quantification of the total compensation"
Lord Donovan (dissenting) said that once the claim was actionable in an English court, "it was right that it should award its own remedies".
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 Nissan v The Attorney General; HL 11-Feb-1969 - [1970] AC 179; [1969] UKHL 3
 
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