swarb.co.uk - law index
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Jurisdiction - From: 1995 To: 1995
This page lists 12 cases, and was prepared on 02 April 2018.
Aggeliki Charis Compania Maritima SA v Pagnan SpA - The Angelic Grace [1995] 1 Lloyd's Rep 87
1995
CA
Leggatt LJ, Millett LJ, Neill LJ
Jurisdiction, Contract
On the charterers' orders the Angelic Grace was required to tie up alongside another vessel which they owned. Whilst unloading the weather turned and the vessels collided. Each blamed the other and the owners claimed a salvage. The court considered the clause "all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying on business in London." Held: The judgment of Rix J was approved. The parties had most probably wished to have one stop adjudication, so that if a part of the claim or cross claim arose out of the contract it was inherently likely that the parties intended that they should all be heard in one forum if the facts were closely knitted together.
The court rejected the idea that the grant of an injunction to restrain foreign proceedings which were in clear breach of contract would offend against comity. It did so on the basis that it is vexatious and oppressive for a party to maintain proceedings in breach of its agreement not to do so. Millett LJ: "In my judgment, the time has come to lay aside the ritual incantation that this is a jurisdiction which should only be exercised sparingly and with great caution. There have been many statements of great authority warning of the danger of giving an appearance of undue interference with the proceedings of a foreign Court. Such sensitivity to the feelings of a foreign Court has much to commend it where the injunction is sought on the ground of forum non conveniens or on the general ground that the foreign proceedings are vexatious or oppressive but where no breach of contract is involved. In the former case, great care may be needed to avoid casting doubt on the fairness or adequacy of the procedures of the foreign Court. In the later case, the question whether proceedings are vexatious or oppressive is primarily a matter for the Court before which they are pending. But in my judgment there is no good reason for diffidence in granting an injunction to restrain foreign proceedings on the clear and simple ground that the defendant has promised not to being them.
I cannot accept the proposition that any Court would be offended by the grant of an injunction to restrain a party from invoking a jurisdiction which he had promised not to invoke and which it was its own duty to decline.
In my judgment, where an injunction is sought to restrain a party from proceeding in a foreign Court in breach of an arbitration agreement governed by English law, the English Court need feel no diffidence in granting the injunction, provided that it is sought promptly and before the foreign proceedings are too far advanced. I see no difference in principle between an injunction to restrain proceedings in breach of an arbitration clause and one to restrain proceedings in breach of an exclusive jurisdiction clause as in Continental Bank NA v Aeakos Compania Naviera SA, [1994] 1WLR 588. The justification for the grant of the injunction in either case is that without it the plaintiff will be deprived of its contractual rights in a situation in which damages are manifestly an inadequate remedy. The jurisdiction is, of course, discretionary and is not exercised as a matter of course, but good reason needs to be shown why it should not be exercised in any given case."
Leggatt LJ said: "The question in a nutshell is whether the relevant claims and cross-claims arise out of the contract. It is common ground that the question must be answered in the light of The Playa Larga [1983] 2 Lloyd's Law Reports 171, in which the Court upheld the dictum of Mr Justice Mustill that a tortious claim does arise out of a contract containing an arbitration clause if there is a sufficiently close connection between the tortious claim and a claim under the contract. In order that there should be a sufficiently close connection, as the Judge said, the claimant must show either that the resolution of the contractual issue is necessary for a decision on the tortious claim, or, that the contractual and tortious disputes are so closely knitted together on the facts that an agreement to arbitrate on one can properly be construed as covering the other."
1 Cites
1 Citers
Owens Bank v Etoile Commerciale [1995] 1 WLR 44
1995
Jurisdiction
The principles of abuse of process may apply even though the relevant earlier proceedings have taken place before a foreign court.
1 Citers
Shevill, Ixora Trading Inc., Chequepoint SARL and Chequepoint International Ltd v Presse Alliance SA; ECJ 7-Mar-1995 - C-68/93; [1995] ECR I-415; [1995] EUECJ C-68/93; [1995] 2 AC 18
Grupo Torras Sa and Another v Sheikh Fahad Mohammed Al Sabah and Others Independent, 05 July 1995; [1996] 1 Lloyd's Rep 7; [1995] EWHC 1 (Comm)
26 May 1995
CA
Stuart-Smith LJ
Jurisdiction
A UK court may continue to hear a Spanish company's claim against it's own directors if a court was first seized of the matter here. Where a case concerned matters as to the constitution of a company, the courts of the company in which the company was incorporated had exclusive jurisdiction.
Stuart-Smith LJ: "The test laid down in Zelger is a chronological test. It requires a moment in time to be identified. When were the requirements first fulfilled? A doctrine of relation back cannot alter the answer to be given to this question. Under Spanish law, the requirement for pendency was not fulfilled until the proceedings were served on Grupo Torras in October, 1993. Again, the argument of the defendants confuses the fulfilment of the requirement with the consequences of that fulfilment in the domestic procedural law."
European Convention on Civil Jurisdiction and Judgments 16-2
1 Cites
1 Citers
[ Bailii ]
United Arab Emirates v Abdelghafar and Another [1995] UKEAT 768_94_1007; [1995] ICR 65; [1995] IRLR 243
10 Jul 1995
EAT
Mummery P J
Employment, Jurisdiction
The appellant challenged a decision by the tribunal made in its absence that the tribunal had jurisdiction to hear against it a claim for unfair dismissal. Held: The tribunal had erred. Though Sengupta had been decided under common law, it remained instructive. Though the tribunal had cited the section, it had not applied it correctly. This was a case of state immunity which had to be clearly distinguished from diplomatic immunity. The fact that he had been employed by a British citizen did not mean that state immunity was not available.
Mummery P J considered the principles applied by the Courts in considering whether to grant extensions of time under the Rules of the Supreme Court. He drew attention to two intersecting principles; the first that rules [and orders] should be obeyed, and the second that a party should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. The application of these principles is sensitive to the stage at which the application is made. Applications to extend time made at an early stage in proceedings are far more likely to receive sympathetic consideration than those made in relation to an appeal: "the approach is different, however, if the procedural default as to time relates to an appeal against a decision on the merits by the court or tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result he should act promptly. The grounds for extending his time are not as strong as where he has not yet had a trial. The interests of the parties and the public in certainty and finality of legal proceedings make the court more strict about time limits on appeals. An extension may be refused, even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings.
(4) An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default."
. . "In accordance with the general principles stated above, the Appeal Tribunal follows the guidelines for the exercise of its discretion to extend time. They are only guidelines. They do not fetter the exercise of the discretion. They are intended to ensure, as far as possible, consistency of treatment, predictability of result and the attainment of justice.(1) The timetable set by the EAT Rules should be observed by the parties and their lay and professional advisers. Although more sympathy may be shown to a party who is unrepresented, as many are, there is no excuse, even in the case of an unrepresented party, for ignorance of the time limit or of the importance of compliance. When parties are notified of the reasons for the industrial tribunal's decision they are informed of the 42-day time limit for appealing. The limits will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules.
(2) The tribunal's discretion will not be exercised, unless the appellant provides the tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted. Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred. For example, the following explanations have been rejected by the Appeal Tribunal as excuses for delay: ignorance of the time limit; oversight of the passing of the limit, for example, by a solicitor under pressure of work; prior notification to the Employment Appeal Tribunal or the Industrial Tribunal or to the successful party of the intention to appeal; the existence of pending applications for review of the decision or for remedies; delay in the processing of an application for legal aid or of an application for advice or support from elsewhere, such as the Equal Opportunities Commission or the Commission for Racial Equality. It is always possible, in cases where there may be unavoidable delay, for an extension to be agreed between the parties or granted by order of the Appeal Tribunal before the period has expired. Alternatively, a notice of appeal may be served in order to comply with the Rules, with a covering letter saying that it may be necessary to apply to amend it later. (3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion. It is, of course, impossible to make an exhaustive list of factors. The Appeal Tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default. The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the notice of appeal was served only one day out of time. Parties who have decided to appeal are also strongly advised not to leave service of the notice of appeal until the last few days of the 42-day period. If they do, they run the risk of delay in the delivery of post or of the misdirection of mail. That risk can be avoided by service of the notice of appeal well within the period. The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal. Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance. If there is irreparable concrete prejudice, that will strengthen the opposition to the application for extension; but even if there is no prejudice, the application may still be refused. Thus, the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are: (a) What is the explanation for the default? (b) Does it provide a good excuse for the default? (c) Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time.
State Immunity Act 1978 1(2) 4 16(1)(a)
1 Cites
1 Citers
[ Bailii ]
Danvaern Production v Schuhfabriken Otterbeck [1995] ECR I-2053; C-341/93; [1995] EUECJ C-341/93
13 Jul 1995
ECJ
Jurisdiction
ECJ Judgment - Convention on Jurisdiction and the Enforcement of Judgments - Special jurisdiction - Counterclaim - Definition - Claim by the defendant in the main proceedings seeking the pronouncement of a separate judgment or decree Defence seeking to set off a claim by the defendant against a claim by the plaintiff - Excluded
[ Bailii ]
SISRO v Ampersand Software; ECJ 11-Aug-1995 - C-432/93; [1995] EUECJ C-432/93
Re V; Handicapped Adult: Right to Decide Residence Ind Summary, 14 August 1995
14 Aug 1995
FD
Jurisdiction, Health
The court may intervene to decide on the care of a mentally handicapped adult where there is a risk of harm to that adult if no care arrangements are made.
Connelly v RTZ Corporation Plc; CA 29-Sep-1995 - Independent, 29 September 1995; Times, 20 October 1995
Sarrio SA v Kuwait Investment Authority; ComC 12-Oct-1995 - [1996] 1 Lloyd's Rep 650; [1996] CLC 211
Bankers Trust International plc v PT Dharmala Sakti Sejahtera ; PT Dharmala Sakti Sejahtera v Bankers Trust International plc Unreported 19 October 1995
19 Oct 1995
ComC
Mance J
Jurisdiction
cw Conflict of laws - jurisdiction to restrain party to English proceedings from pursuing foreign proceedings - competing sets of substantive proceedings - abusive and oppressive pursuit of foreign proceedings
Danielsson, Largenteau and Haoa v Commission of the European Communities T-219/95; [1995] EUECJ T-219/95
22 Dec 1995
ECFI
European, Jurisdiction, Environment
ECFI Nuclear tests conducted by a Member State - Application for interim relief -Article 34 of the EAEC Treaty - Application for suspension of the operation of a Commission decision regarding nuclear tests. In principle, the issue of the admissibility of the main action should not be examined in proceedings relating to an application for interim measures, so as not to prejudge the Court' s decision on the substance of the case. It should be reserved for the examination of the main action, unless it is apparent at first sight that the latter is manifestly inadmissible. When that is the case, for example because the applicant is seeking the annulment of a decision addressed to a Member State and cannot be regarded as being prima facie individually concerned by that decision, the interim application must be dismissed.
EAEC Treaty 34
[ Bailii ]