COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE LAWRENCE COLLINS
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE HOOPER
| YAHYA MURAT DEMIREL
|- and -
|TASARRUF MEVDUATI SIGORTA FONU
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Mr Lawrence Cohen QC and Mr Alexander Pelling (instructed by Messrs Berwin Leighton Paisner LLP) for the Defendant/Appellant
Hearing dates: 25 July 2007
Crown Copyright ©
Sir Anthony Clarke MR:
This is a judgment of the court.
i) set aside the order granting permission to serve the proceedings out of the jurisdiction in relation to judgments no 2001/1300 dated 26 November 2001 and no 2002/551 dated 11 June 2002 respectively; and
ii) set aside the freezing injunction.
The judge did not, however, set aside the order granting permission to serve the proceedings out of the jurisdiction in so far as it related to judgment no 2001/1461 dated 20 November 2001, which was in the principal sum of US$30,000,000.
The issues in the appeal
i) that the court had no jurisdiction to permit service out of the jurisdiction on the true construction of CPR 6.20(9) ("the jurisdiction point");
ii) if there was jurisdiction, that permission to serve out should have been refused on the ground that the proceedings would serve no useful purpose ("the no useful purpose point"); and
iii) in any event, that the claim should be heard in the Cayman Islands and not here ("the forum conveniens point").
The jurisdiction point
"6.20 In any proceedings to which rule 6.19 does not apply, a claim form may be served out of the jurisdiction with the permission of the court if
(9) a claim is made to enforce any judgment or arbitral award."
These are not proceedings to which rule 6.19 applies because that rule applies to cases where the permission of the court is not required and this is not such a case.
"During these present sittings Vaughan Williams L.J. and myself have on more than one occasion had to consider Order xi, and we have had many authorities discussed and fully considered by the Court, and the conclusion to which the authorities led us I may put under three heads. First we adopted the statement of Pearson J, in Société Générale de Paris v Dreyfus Brothers (1), that "it becomes a very serious question, and ought always to be considered a very serious question, whether or not, even in a case like that, it is necessary for the jurisdiction of the Court to be invoked, and whether this Court ought to put a foreigner, who owes no allegiance here, to the inconvenience and annoyance of being brought to contest his rights in this country, and I for one say, most distinctly, that I think this Court ought to be exceedingly careful before it allows a writ to be served out of the jurisdiction." The second point which we considered established by the cases was this, that, if on the construction of any of the sub-heads of Order xi. there was any doubt, it ought to be resolved in favour of the foreigner; and the third is that, inasmuch as the application is made ex parte, full and fair disclosure is necessary, as in all ex parte applications, and a failure to make such a full and fair disclosure would justify the Court in discharging the order, even although the party might afterwards be in a position to make an another application."
It is the second point which is relevant or potentially relevant to the first ground of appeal.
"This paragraph blocks a small but irritating loophole in the law.
The presence of assets within the jurisdiction does not in itself give the English Courts jurisdiction over a person outside the jurisdiction. Accordingly a foreign judgment could not be enforced against English assets in cases not falling within the provisions for the reciprocal enforcement of judgments legislation unless the debtor could be served in England or was "domiciled or ordinarily resident within the jurisdiction". Now the foreign judgment or award is itself a sufficient ground for the grant of leave."
The words which we have italicised have been in every edition of the White Book since 1985 and are still in the note on the rule in the 2007 edition. The statement that the foreign judgment is itself a sufficient ground for the grant of leave is to our mind inconsistent with the submission that it is necessary that there be assets within the jurisdiction.
"It is true that the language is entirely general, but, as Millett J said in In re International Tin Council  Ch 419, 450:
'It is one thing to give effect to plain and unambiguous language in a statute. It is quite another to insist that general words must invariably be given their fullest meaning and applied to every object which falls within their literal scope, regardless of the probable intentions of Parliament.'"
However, the correct approach in each case depends upon the context in which the particular rule is to be construed. Thus an important factor in the decision of the House of Lords was that the language of the rule being construed derived from language used in 1854. Lord Bingham said this at :
"The language used in 1854 has, until very recently, been reproduced with remarkably little change, and I think it rather unlikely that parliament in 1854 was directing its mind to garnishees served within the jurisdiction but owing debts to the judgment debtor abroad. Since no order attaching a foreign shows in action has been made in any reported case, there can have been no pressing need for the Rules Committee to clarify any suggested ambiguity in the rules."
The no useful purpose point