The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the allegation was that the contract was broken by reason of a failure to deliver in Liverpool the goods that were the subject of the contract. Leave was given ex parte and upheld inter partes. The plaintiffs now conceded that the way that their claim had been advanced had been misconceived in that a CIF contract involves an obligation to deliver documents, not the goods to which the documents relate. The plaintiffs tried to persuade the Court to uphold the leave given to serve out on the basis of substituting for the original claim a claim for failure to deliver the relevant documents in Liverpool.
Held: Permission was refused. A L Smith MR said: ‘It was not until the case came into this Court that the plaintiff set up another cause of action. That could not be allowed.’
Collins LJ said: ‘an application for leave to issue a writ for service out of the jurisdiction ought to be made with great care and looked at strictly. If a material representation upon which the leave was obtained in the first instance turned out to be unfounded, the plaintiff ought not to be allowed . . to set up another and a distinct cause of action which was not before the Judge upon the original application. It was clear from the affidavit that the only case made on the original application was that the defendants were bound to deliver the goods in this country, and that there was a breach of that contract here, and upon that representation alone leave was originally granted to issue the writ and serve notice thereof abroad.’
Romer LJ said: ‘an application for leave to issue a writ for service out of the jurisdiction ought to be made with great care and looked at strictly. If a material representation upon which the leave was obtained in the first instance turned out to be unfounded, the plaintiff ought not to be allowed, when an application was made by the defendant to discharge the order for the issue of the writ and the service, to set up another and a distinct cause of action which was not before the judge upon the original application.’
Judges:
A L Smith MR, Collins, Romer LJJ
Citations:
(1901) 17 TLR 299
Jurisdiction:
England and Wales
Cited by:
To be confined to its facts – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Applied – Re Jogia (A Bankrupt) 1988
Application was made for leave to serve proceedings out of the jurisdiction in a claim for money had and received in connection with payments made to the defendant after a receiving order.
Held: A plaintiff who has been given permission to . .
Cited – Metall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 1990
There was a complicated commercial dispute involving allegations of conspiracy. A claim by the plaintiffs for inducing or procuring a breach of contract would have been statute-barred in New York.
Held: Slade LJ said: ‘The judge’s approach to . .
Cited – AB v CD QBD 3-Jan-2014
The parties were contracted to each other in respect of an internet based marketing system for metals and other resources. The claimant had contracted in effect to promote the system. The claimant sought an injunction to prevent termination of . .
Lists of cited by and citing cases may be incomplete.
Jurisdiction, Litigation Practice
Updated: 21 August 2022; Ref: scu.441563