England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISON
(MR DAVID DONALDSON QC)
HC09C00275

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th November 2009

Sir John Chadwick :

1. This is an appeal from an order made on 11 February 2009 by Mr David Donaldson QC, sitting as a Deputy Judge of the High Court, in proceedings brought by Mr Chatain Choudhary and others in relation to the affairs of the Barnagore Jute Factory Plc ("the Company").
2. The Company was incorporated in England on 22 July 1872 under the Companies Act 1862 for the purpose of carrying on the business of jute manufacturers at Barnagore, near Calcutta, in what is now the Republic of India. That remains the sole business of the Company. It is common ground that the Company has, now, no connection with England; save that it was incorporated here, maintains its registered office in London and is required to make annual returns to Companies House.
3. The first issue raised in this appeal is whether the judge was correct to hold that, in the light of article 22 of Council Regulation (EC) No 44/2001 ("the Judgments Regulation") and the decision of the Court of Justice in Owusu v Jackson [2005] QB 801, he was bound to accept jurisdiction. The second issue is whether, if so, he erred in deciding, in the exercise of his discretion, that the claimants should have interim relief in the terms of the injunction which he granted, or at all.

The background to the dispute

4. The background to the present dispute is set out by the judge at paragraphs 2 to 8 of his judgment, [2009] EWHC 314 (Ch). Those paragraphs may be summarised as follows:

(1) In the 1980s the Company encountered financial difficulties. On 28 October 1987 the Indian Companies Court ordered that the Company should be wound up, and the Official Liquidator was directed to take possession of the Company and its assets.

(2) In September 1988, in the context of applications to the Indian Companies Court for a scheme to be ordered by the court for the revival of the Company and the stay of the winding-up in the meantime, the Indian Court appointed a Committee of Management for the purpose of re-opening the jute mill and running it in accordance with the scheme. The winding-up was stayed for a period of six months. The Court directed the Official Liquidator to continue in possession of the jute factory; but not to interfere with the management by the Committee of Management.

(3) That position continued for several years: with the stay of the winding up extended and changes made to the composition of the Committee of Management from time to time. On 18 November 2004, or thereabouts, the Committee of Management was replaced by the first and second claimants in these proceedings - Mr Choudhary and Mr Rakecha - who (it seems) were then the sole directors of the company and had assumed the management of the business. They were appointed as the Committee of Management, initially for a period of six months, in the context of a scheme for the management of the Company with a view to its eventual exit from winding-up. The interim stay was further extended from time to time for successive periods of six months; and, from 31 March 2006, for an indefinite period until further order.

(4) The Company approached the Board for Industrial and Financial Reconstruction ("BIFR"). On 7 June 2006 BIFR declared the Company to be a sick industrial company for the purposes of Sick Industrial Companies Act ("SICA"); and commissioned a report.

(5) In September 2007 Mr Choudhary and Mr Rakecha, as the only directors of the company, appointed Mr Damodar Bhatter, the first defendant to these proceedings, as a co-director. It is said that their intention was that Mr Bhatter, who lives at the workers' colony adjacent to the factory, would assist them with the day-to-day management of the business in conjunction with the general manager, the commercial manager, and the in-house accountant; and would report to them in their capacity as the Committee of Management. In practice, it seems, Mr Bhatter was left to oversee the day-to-day management of the Company on his own: Mr Choudhary and Mr Rakecha rarely, if ever, visiting the factory.

(6) On 2 December 2008 BIFR proposed a Draft Rehabilitation Scheme ("the DRS"); and directed publication of those proposals. Objections to those proposals were to be considered by the Court at a hearing on 19 February 2009.

(7) The proposals in the DRS were for relief from central and state governments, the sale of surplus land, and the provision of 50 million rupees (about £700,000) by way of equity and unsecured loans (and further funds if required) from two existing minority shareholders, Yashdeep Trexim Pvt Ltd ("Yashdeep") and Namokar Vinimay Pvt Ltd ("Namokar"). Yashdeep and Nakomar are, respectively, the Fourth Claimant and the Second Defendant to these proceedings.

5. The report to BIFR had disclosed that the combined shareholding of those two shareholders, along with their associates, amounted to 29% of the total share capital; and that the balance was held by public financial institutions (5.16%), by banks (0.02%), and by the general public (66.15%). Of a total issued share capital of 175,000 ordinary shares, Yashdeep and Namokar had acquired, respectively, 10,839 and 16,000 ordinary shares some years earlier; but it is said by Mr Bhatter and Nakomar (but disputed by Mr Choudhary, Mr Rakecha and Yashdeep) that Yashdeep subsequently reduced its holding down to 2,950 shares. Mr Krishna Tapuriah, the third claimant in these proceedings, was registered as the holder of 120,000 shares; but those shares are shown as partly paid, with a balance of 577,366 Pounds outstanding. The register of members as at 31 December 2008 shows that there were a very large number of small holdings, not infrequently in single figures, by individual members of the general public. Mr Choudhary and Mr Rakecha each hold 200 shares. Mr Tapuriah, Yashdeep and Namokar also hold preference shares. Mr Bhatter is not a shareholder.

The events leading to these proceedings

6. These proceedings arise out of events which are said (by Mr Bhatter and Namokar) to have taken place following the release of the DRS on 2 December 2008. Those events are described by the judge at paragraph 10 of his judgment:

"10 . . . (1) At an EGM purportedly held in Kolkata on 5 December 2008 it was resolved that

a. the auditors and the company secretary should be replaced;

b. the registered office be moved from the existing company secretary to the offices of Morgan Walker, solicitors, in Chancery Lane;

c. Mr Tapuriah's shareholding be forfeited for non-payment of an alleged call on 28 March 2008.

(2) At a Board Meeting purportedly held in Kolkata on 5 December 2008 it was resolved that there be no further change in the registered office, the company secretary, or the authorised capital of the company without the signed approval of all directors.

(3) At a Board Meeting purportedly held in Kolkata on 17 December 2008 it was resolved that Mr Toshniwal, Mr Roshanlal Pugalia, Mr Jhanwar, Mr Vyas and Mr Vijay Pugalia be appointed as new directors, the quorum for any Board meeting be increased to five, and all further resolutions and decisions must be approved by at least five directors.

(4) By letters purportedly signed by the First and Second Claimants on 18 December 2008 each resigned as director of the company."

7. Mr Choudhary and Mr Rakecha assert that they had no part in any of these events. As the judge explained:

"11. . . . (1) They dispute that the EGM of [5] December 2008 was properly called or took place, saying that their signatures upon an alleged notice dated 4 November 2008 purporting to convene that meeting were forged, as were their signatures on the alleged minutes of the meeting. They further deny that any call had been made on Mr Tapuriah which would enable the company to forfeit the shares under its Articles, saying that their signatures on (a) a letter dated 28 March 2008 (purporting to repeat a call said to have been previously made) and (b) a letter dated 6 June 2008 (purporting to give notice of an intended forfeiture) are forged. Mr Tapuriah also says that he never received any such letters.

(2) They say that they were not present at the alleged Board meeting of 5 December 2008, that Mr Bhatter on his own would not have constituted the minimum quorum of two, and that their signatures on a copy of the alleged resolution have been forged.

(3) The same applies to the alleged Board Meeting on 17 December 2008, and to the apparent signature of the First Claimant on the purported resolution to appoint the five new directors (and on two of the forms 288a sent to Companies House recording the appointments).

(4) Neither the First nor the Second Claimant agreed or intended to resign as a director and their signatures on the purported letters of 18 December 2008 were forged."

8. The meetings which are said to have taken place on 5 and 17 December 2008, and the letters of resignation dated 18 December 2008, must be set in the context of the other events which the judge described at paragraphs 12 to 14 of his judgment:

"12. In a letter dated 5 December 2008 from Mr Bhatter to Namokar he wrote to inform them that:

'Vide an order dated 2^nd December 2008 BIFR has sanctioned a scheme. This makes it imperative on our part to bring in additional capital to the company for implementation of the scheme. Kindly let me know when I could call upon you to discuss this case.'

In suggesting that the scheme had already been sanctioned, Mr Bhatter appears to have both jumped the gun and prejudged events: the scheme was still only a draft and would not be adopted (if at all) until BIFR had considered any suggestions/objections at the hearing announced for 19 February 2009.

13. In its reply dated 6 December 2008 Namokar stated that 'Funds in BJF [i.e. the company] and function of the BJF has not been at par with our expectation' and that it had requested an accountant's report on loans and unsecured advances given to 'the Association of the Directors, the accounts and shareholders/promoters'. On 9 December 2008 it sought the consent of the company to its accountants doing due diligence on the company's accounts: their report was produced on 15 December 2008. Though not referred to in that report, I do not understand it to be in dispute that an unsecured loan of about 27 million rupees (ca. £378,000) advanced to Yashdeep by the company some years ago under the aegis of the First and Second Claimants remains unpaid.

14. On 16 December 2008 Namokar wrote to Mr Bhatter enclosing a draft agreement, which the company was required to execute as a condition precedent to Namokar introducing new capital into the company. The letter also stipulated that (1) the First and Second Claimants must resign as directors and (2) the company should appoint five independent directors with experience and knowledge of the jute industry. . . ."

9. As the judge observed, Namokar's letter of 16 December 2008 was followed, within a couple of days, by the appointment (or purported appointment) of new directors - Mr Toshniwal, Mr Roshanlal Pugalia, Mr Jhanwar, Mr Vijay Pugalia and, perhaps, Mr Vyas (but see paragraph 21.4.1 of the particulars of claim) - at the alleged Board Meeting on 17 December 2008 and the letters of resignation dated 18 December 2008 and signed (or purportedly signed) by Mr Choudhary and Mr Rakecha. For their part, Mr Choudhary and Mr Rakecha assert that they were not informed of any of the correspondence or negotiations with Namokar, or of the proposed agreement.
10. The proposed agreement between the Company and Namokar, described as a "Memorandum of Understanding" ("the MoU"), was dated 19 December 2008. It was signed on behalf of the Company by Mr Bhatter. The MoU provided (inter alia): (i) that Namokar should subscribe for 117,000 ordinary shares in the Company for a consideration of 5 million rupees to be paid within 30 days and for a further 216,000 ordinary shares against part payment of 10%; and (ii) that, in addition to the existing board, three nominees of Namokar were to be appointed by the Company as directors and any resolution other than one relating to its day-to-day business affairs was to require the affirmative vote of at least two of those nominated directors.
11. On 8 January 2009 returns were filed at Companies House in respect of allotments to Namokar of (a) 117,000 fully paid ordinary shares and (b) 216,000 partly paid (to the extent of 10%) ordinary shares. The allotments were made pursuant to a written Board resolution dated 7 January 2009. It was said that they were made against the payment of some 50 million rupees by Namokar: monies which were required, as a matter of urgency, to defray the Company's expenses, including the purchase of raw materials. It is not, I think, in dispute that those monies were paid by Namokar to the Company on or about 7 January 2009.
12. On 12 or 14 January 2009 three further directors, Mr Pawan Kumar Bajaj, Mr Abhishek Sharma and Mr Shobhanand Jha, were appointed (or purportedly appointed) to the board of the Company.
13. Mr Choudhary and Mr Rakecha challenge the validity of the MOU on the grounds that it was made without authority. They challenge the allotment of shares to Namokar. They assert that Mr Bhatter and Namokar have sought to effect a coup d'etat by a series of forgeries and illegalities designed to move majority ownership and control of the Board to Namokar.
14. The response of Mr Bhatter and Namokar is that Mr Choudhary and Mr Rakecha were well aware of, and participated in the events as they occurred, up to and including their resignation from the Board on 18 December 2008. They assert that the present litigation is driven by Mr Tapuriah's desire to reverse the forfeiture of his shares (for non-payment of calls) and by Yashdeep's desire to avoid a demand for immediate repayment of the 27 million rupee loan made to it by the Company.

These proceedings

15. On 9 January 2009 – that is to say, immediately following the return of allotments filed at Companies House – the claimants (Mr Choudhary, Mr Rakecha, Mr Tapuriah and Yashdeep) issued an application notice in the matter of intended proceedings against Mr Bhatter and the Company. The claimants sought an order in the form of the draft attached to that notice. In particular, relief was sought against Mr Bhatter under six heads: restraining him from (i) acting upon the purported resignations (in the letters of 18 December 2008) of Mr Choudhary and Mr Rakecha; (ii) taking any further steps to remove Mr Choudhary or Mr Rakecha as a director of the Company, or voting at any meeting of directors so as to restrict their roles in the management of the Company as those roles existed prior to 18 December 2008; (iii) causing any payment to be made by the Company (or by any bank with which the Company has an account) without the prior written approval of Mr Choudhary and Mr Rakecha; (iv) causing the day to day business of the Company to be conducted otherwise than under the direction of the Committee of Management established by the order of the High Court of Kolkata dated 18 November 2004 (on the basis that that Committee of Management comprised Mr Choudhary and Mr Rakecha); (v) causing the Company to increase its share capital or to allot any further shares; and (vi) acting as if the company secretary of the Company was other than Cavendish Secretarial Limited or its registered office elsewhere than 72 Cavendish Street, London W1. The relief sought against the Company was a direction that the company secretary (which, for that purpose was to be deemed to be Cavendish Secretarial Limited) file with Companies House a Form 288a confirming the appointment of Mr Choudhary and Mr Rakecha as directors of the Company. It was said, in the application notice, to be just and convenient that relief be granted in those terms and that "the refusal of such relief would facilitate a wrongful departure from the existing state of affairs in relation to the management of the business and affairs of [the Company] as that has been sanctioned by Orders of the High Court of Calcutta made on 18 November 2004 and subsequently". The application was supported by a witness statement made by the London solicitor acting for the claimants.
16. The application came before the judge for hearing on 27 January 2009. The judge noted that, at the commencement of that hearing, proceedings had not been issued. Namokar was not a respondent to the application. Nor were the four (or five) new directors purportedly appointed by resolution on 17 December 2008 or the three new directors purportedly appointed on 12 or 14 January 2009 respondents to the application. No relief was claimed against Namokar or the new directors on the application. Neither Namokar nor the new directors were represented before the judge; and they have not been represented in this Court.
17. The Claim Form was issued on 3 February 2009: that is to say, between the completion of the oral hearing before the judge and the delivery of his judgment. Namokar is named as a defendant to the claim; but none of the new directors is a defendant. The relief sought includes: (i) a declaration that the purported forfeiture of Mr Tapuriah's shares is void and of no effect; (ii) alternatively, relief from such forfeiture; (iii) a declaration that the allotment of shares to Namokar is void; (iv) a declaration that Mr Bhatter is liable to make compensation pursuant to section 92 of the Companies Act 1985 with interest; and (v) rectification of the Company's register of members "to reflect the above". The particulars of claim seek, in addition, (vi) declarations that the purported resignations from the board of directors of Mr Choudhary and Mr Rakecha on 18 December 2008 and of three other directors (Mr Somani, Mr Maity and Mr Gupta) on 9 January 2009 were void and of no effect; (vii) a declaration that each appointment to the board after 12 December 2008 – that is to say, the appointments of Mr Toshniwal, Mr Rohsanlal Puglia, Mr Jhanwar, Mr Vijay Puglia and, perhaps, Mr Vyas on 17 December 2008 and of Mr Bajaj, Mr Sharma and Mr Jha on 12 and 14 January 2009 - was invalid and of no effect; and (viii) that the replacement of Cavendish Secretarial Limited as company secretary and the change in the Company's registered office are invalid and of no effect.
18. On 11 February 2009 the judge made an order restraining Mr Bhatter from (i) acting in relation to the management of the Company's business and affairs otherwise than as directed or authorised by Mr Choudhary and Mr Rakecha or as directed by a Court of competent jurisdiction in India and (ii) convening a general meeting of the Company or procuring a decision of the directors to alter either the composition of the board of directors or the shareholdings in the Company. He went on to give pre-trial directions on the basis of an expedited trial to take place not before 21 April 2009 but as soon as possible thereafter.

This appeal

19. The appeal is brought with the permission of Lord Justice Stanley Burnton, granted on 19 March 2009. As I have said, the first issue raised on this appeal is whether the judge erred in law in accepting that the English court had to accept jurisdiction in this dispute. It is said (at ground (1) in the grounds of appeal) that the judge ought to have held that he had a discretion as to whether the English court should accept jurisdiction; and that, in the exercise of that discretion, he ought to have declined to accept jurisdiction on the basis that the Indian courts were the proper and convenient forum for the determination of this dispute.
20. The second issue raised on the appeal is whether, if so, he erred in granting an interim injunction in the terms which I have described, or at all. It is said, first, that the judge erred in finding, on the material before him, that Mr Choudhary and Mr Rakecha were the only members of the Committee of Management (to the exclusion of Mr Bhatter) and that they had power in that capacity to give instructions which Mr Bhatter was obliged to carry out (ground 2 of the grounds of appeal). There are, it is said, substantial issues of fact and law between the parties as to the relative powers of the Committee of Management and the board of directors (of which Mr Bhatter is accepted to be a member) and the judge should not have sought to resolve those issues at this stage. Second, it is said, the judge erred in principle in making the order that he did (grounds (3) to (7) of the grounds of appeal).

Jurisdiction

21. There is no dispute that proceedings against the Company itself can be brought in the English court. The registered office of the Company is in London. The Company can be served there, without the need for an order for service out of the jurisdiction. But, as the judge thought, "the application did not in terms seek any order against the company" (paragraph 22(2) of his judgment); no order was made against the Company; and it is difficult to see how the Company could take any part in the proceedings, given that the question who is entitled to give instructions on its behalf lies at the heart of the dispute.
22. There was no application notice before the judge seeking permission – pursuant to CPR 6.36 and paragraph 3.1(3) of Practice Direction Part 6B, or otherwise – to serve the claim form out of the jurisdiction on Mr Bhatter (or on Namokar); but, it is said, an oral application for permission was made in the course of the hearing. The judge made no order on that application. He had accepted, at paragraph 40 of his judgment, that "the Claimants do not need the permission of the court to serve the proceedings in India on the Second and Third Defendants: see CPR 6.33(2)(a)(ii)". He took the view that the claim fell within article 22 of the Judgments Regulation.
23. The scope of the Judgments Regulation is defined by article 1. Article 1(2) provides that the regulation shall not apply (inter alia) to:

". . . (b) bankruptcy, proceedings relating to the winding up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; . . ."

The judge rejected the submission that the present action fell within that exclusion. Whether he was correct to do so is a question raised on this appeal.

24. Articles 2, 3 and 4 of the Judgments Regulation - which, together, comprise Section 1 ("General Provisions") in Chapter II ("Jurisdiction") - are in the following terms, so far as material:

"2(1) Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.

. . .

3(1) Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.

. . .

4(1) If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 22 and 23, be determined by the law of that Member State.

. . ."

25. Section 2 of the Judgments Regulation ("Special Jurisdiction") contains special rules relating to claims in contract, tort, restitution, trust and salvage. Section 3 ("Jurisdiction in Matters relating to Insurance"), Section 4 ("Jurisdiction over Consumer Contracts") and Section 5 ("Jurisdiction over Individual Contracts of Employment") contain special rules relating to those matters. Those rules operate by way of exception to the general rule – set out in Article 2(1) – that a person domiciled in a Member state shall be sued in the courts of that Member State.
26. Section 6 of the Judgments Regulation ("Exclusive Jurisdiction") contains article 22 and is in these terms, so far as material:

"22 The following courts shall have exclusive jurisdiction regardless of domicile:

. . .

(2) in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law.

(3) in proceedings which have as their object the validity of entries in public registers, the courts of the Member State in which the register is kept.

. . . "

27. It is not in dispute that the seat of the Company is in England and Wales: that point is put beyond argument by section 43 of the Civil Jurisdiction and Judgments Act 1982. In those circumstances, the judge held that article 22 gave the English court jurisdiction in proceedings against Mr Bhatter. His reasons, put shortly, were: (i) that the effect of the words "regardless of domicile" was that article 22 applied as well to persons who were not domiciled in any Member State as to persons who were domiciled in a Member State (paragraph 36 of his judgment); and (ii) that the present proceedings did have as their object "the validity of the constitution" – in that they sought determination of the composition of the board of directors, the composition of the general body of shareholders and matters relating to the internal management of the Company (paragraph 34 of his judgment) – and so fell within article 22(2). Whether he was correct on those points is for consideration on this appeal. The judge did not find it necessary to decide whether the proceedings would also have fallen within article 22(3) on the basis that the register of members of the Company was a public document (paragraph 35 of his judgment).
28. There is a further matter under this head. The judge held (at paragraph 37 of his judgment) that where jurisdiction exists under the Judgment Regulation, the court on which it is conferred is obliged to hear and determine the claim even where the potential alternative court (in this case, the High Court of Calcutta) is not that of a Member State. He took the view that that proposition was established by the decision of the Court of Justice in Owusu v Jackson [2005] QB 801. It is said on behalf of the appellant that the judge was wrong to think that he had no discretion to decline jurisdiction: and, it is said, he should have done so.
29. There are, therefore, potentially five questions to be addressed in relation to jurisdiction: (i) whether the present proceedings fall outside the scope of the Judgments Regulation by reason of article 1(2)(b); (ii) whether article 22 can found jurisdiction in respect of a person (Mr Bhatter) who is not domiciled in a Member State; (iii) whether the claim against Mr Bhatter in the present proceedings falls within article 22(2); (iv) whether, if jurisdiction in respect of Mr Bhatter is conferred by article 22(2), the English court is precluded, by the decision in Owusu, from declining jurisdiction; and (v) whether, if the English court is not so precluded, the judge should have declined jurisdiction on forum non conveniens grounds. The questions are sequential: in the sense that, if the appellant succeeds on an earlier question, the later questions do not arise.

(i) Do the present proceedings fall outside the scope of the Judgments Regulation by reason of article 1(2)(b)?

30. In my view, the judge was correct to answer this question in the negative. Although the evidence as to the nature of the current proceedings in India is incomplete, I am prepared to assume that it can be said that the Company is subject, in that jurisdiction, to winding up proceedings or (at the least) to proceedings which are analogous to winding up proceedings, judicial arrangements or compositions. But it is not, I think, possible to say that the proceedings which the claimants seek to bring against Mr Bhatter are proceedings "relating to" winding up or analogous proceedings.
31. The only claim against Mr Bhatter in the present proceedings is for compensation pursuant to section 92 of the Companies Act 1985, with interest on any sum payable pursuant to section 35A of the Supreme Court Act 1981: see paragraph (4) of the Claim Form, paragraph 27.8 of the Particulars of Claim and paragraph 2 in the prayer for relief. There are, as I have said, claims for declarations - that the purported forfeiture of Mr Tapuriah's shares is void and of no effect and that the allotment of shares to Namokar is void – a claim by Mr Tapuriah (in the alternative) for relief from forfeiture and a claim to rectify the register of members "to reflect the above"; but, properly understood, those are not claims against Mr Bhatter. He is not a shareholder. Those claims are against the Company and Namokar. The Particulars of Claim seek, in addition, declarations that each appointment to the board of directors after 12 December 2008 and the replacement of Cavendish Secretarial Limited as company secretary and the change in the Company's registered office are of no effect. But, again, properly understood those are not claims against Mr Bhatter: those are (or would be, if they were defendants) claims against the Company, the new directors and the new company secretary.
32. Section 92 of the 1985 Act is ancillary to sections 89(1) and 90(1) to (5) and (6): which require shares to be allotted first to be offered to existing shareholders on a pre-emptive basis. Section 92 of the Act provides for compensation to be awarded against a company which allots shares in contravention of those provisions; and against every officer of the company who knowingly authorised such contravention. Although the decision to allot shares to Namokar (without first offering them to the existing shareholders) may be said to have arisen in the context of the DRS proposed by BIFR – and so in the context of the proceedings in India – the allotment was not by way of implementation of any proposal sanctioned by the Indian court; and cannot, I think, be said to be an allotment "relating to" the Indian proceedings.

(ii) Can article 22 found jurisdiction in respect of a person (Mr Bhatter) who is not domiciled in a Member State?

33. It is convenient to set out, again, the opening words of article 22 of the Judgments Regulation:

"The following courts shall have exclusive jurisdiction, regardless of domicile"

In reaching his conclusion that those words were apt to confer jurisdiction on the English Court in respect of a person (Mr Bhatter) who was not domiciled in any Member State this point, the judge relied – and relied only - on the phrase "regardless of domicile". But that, as it seems to me, is to take that phrase out of context.

34. It must be kept in mind that the purpose and object of the Judgments Regulation is to promote "measures relating to judicial cooperation in civil matters which are necessary for the sound operation of the internal market" (paragraph (1) in the preamble): "Accordingly common rules on jurisdiction should, in principle, apply when the defendant is domiciled in one of [the Member States bound by the Regulation]" (paragraph (8) of the preamble): "A defendant not domiciled in a Member State is in general subject to national rules of jurisdiction applicable in the territory of the Member State of the court seised" (paragraph (9) of the preamble). It is, I think, clear that the direction in the opening words of article 22 as to the courts which are to have "exclusive jurisdiction" is a direction which was intended to apply only as between the courts of those Member States which are bound by the regulation. The direction was not intended to apply to the courts of a Member State (say, Denmark) who was not bound by the regulation (paragraph (21) of the preamble). A fortiori, the direction was not intended to apply as between the courts of Member States and the courts of non-Member States. It would be absurd to construe article 22 as an attempt to exclude the jurisdiction of, say, the Indian courts in a case where the seat of a company was in England.
35. The words "shall have exclusive jurisdiction" displace the general rule – set out in article 2(1) – that a person domiciled in a Member State shall be sued in the courts of that Member State. That is emphasised by the words "regardless of domicile". The latter words distinguish the provisions in Section 6 of the regulation (article 22) from provisions in Sections 2, 3, 4 and 5 under which, generally, the regulation gives a choice between suing in the courts of the Member State in which the defendant is domiciled or in the courts of a Member State with which there is some other connecting factors: see, for example, article 5 ("a person domiciled in a Member State may, in another member State, be sued . . . etc"); article 16(1) ("A consumer may bring proceedings against the other party to a [consumer] contract either in the courts of the member State in which that party is domiciled or in the courts for the place where the consumer is domiciled" – and contrast article 16(2)); and article 19 ("An employer domiciled in a member State may be sued either in the courts of the Member State where he is domiciled or in another Member State (a) in the courts for the place where the employee habitually carries out his work . . ." - and contrast article 20).
36. The words "shall have exclusive jurisdiction" also displace the general rule – set out in article 4(1) – that in the case of a defendant not domiciled in a Member State – the jurisdiction of the courts of each Member State shall be determined by the law of that Member State. That is made clear by the words in article 4(1) itself "subject to Article 22 and 23". A Member State cannot, under its own law, assume jurisdiction in respect of a person not domiciled in any Member State in a case where, under articles 22 or 23, the court of another Member State has exclusive jurisdiction.
37. The words "regardless of domicile" must be construed in that context. As I have said, they have an obvious purpose in that they emphasise that the effect of article 22 – in contrast to articles in earlier sections of the regulation – is wholly to displace the general rule set out in article 2(1) in a case where the person sued is domiciled in a Member State. In a case within article 22 there is no choice: a person domiciled in a Member State cannot be sued in that state unless it is the state to which article 22 directs the suit. The words have no purpose, in the context of promoting "the sound operation of the internal market" (which is the object of the Judgments Regulation) in a case where the person sued is not domiciled in a Member State. In that context, the object is achieved by article 4(1), read with the words "shall have exclusive jurisdiction" in article 22.
38. In the absence of authority which compels a different conclusion, I would hold that it is unnecessary – and wrong – to construe the words "regardless of domicile" in article 22 as having any application to a case where the person to be sued is not domiciled in a Member State. I can see no reason why the Council of the European Union should be taken to have intended, by those words in the Judgments Regulation, to confer on the courts of a Member State a jurisdiction in respect of persons not domiciled in any Member State which those courts would not otherwise have under their own national law. In this context it is pertinent to note, as Lord Justice Stuart-Smith observed in Grupo Torras SA v Al-Sabah [1996] 1 Lloyds Rep 7, 15, "it is generally accepted as a matter of private international law that the law of the place of incorporation determines the capacity of the company, the composition and powers of the various organs of the company, the formalities and procedures laid down for them, the event of an individual member's liability for the debts and liabilities of the company, and other matters of that kind": so there was no void which needed to be filled.
39. No authority was cited to us which does compel a different conclusion. In particular the Owusu case does not do so; as will appear from an examination of that case later in this judgment. I should, however, refer to the decision of this Court in Speed Investments Ltd v Formula One Holdings Ltd [2004] EWCA Civ 1512, [2005] 1BCLC 455, on which the judge relied in reaching his conclusion not on this question but on the question which I have identified as question (iii): whether the claim against Mr Bhatter in the present proceedings falls within article 22(2).
40. The dispute in Speed Investments was as to the future control of Formula One racing. A number of companies, including the claimants and the first and second defendants, were parties to a shareholders' agreement, of which the governing law was English law, but under which they submitted to the exclusive jurisdiction of the courts of Geneva. The claimants, both Jersey companies, brought proceedings in England challenging the validity of the appointments by the second defendant (another Jersey company) of the third and fourth defendants (Swiss citizens, domiciled in Switzerland) as directors of Formula One Holdings Ltd (the first defendant, an English company). The claimants relied on article 22 of the Judgments Regulation to found jurisdiction in respect of the second defendant and on article 16 of the Lugano Convention 1988 (incorporated into English law by section 3A of the Civil Justice and Jurisdiction Act 1982) to found jurisdiction in respect of the third and fourth defendants. So far as material, the provisions of those articles were the same. The defendants challenged the jurisdiction of the English court on the ground that the claim was outside those provisions. The principal issue was whether the proceedings had as their object "the validity of the constitution, the nullity or the dissolution of companies" or "the validity of the decisions of their organs" within the meaning of those expressions in article 22 of the Judgments Regulation and article 16 of the Convention (as the case might be). This Court (Lord Justice Carnwath, Lord Justice Neuberger and Sir William Aldous) held that they did; and it is for that finding that the case was cited to the judge in the present case.
41. In the context of the question whether article 22 of the Judgment Regulations could found jurisdiction in respect of a defendant who was not domiciled in a Member State Speed Investments provides little, if any, assistance. Lord Justice Carnwarth (who gave the only substantive judgment) pointed out (ibid, [12], 458f) that Switzerland was not a member of the European Union, but was a contracting state for the purposes of the Lugano Convention; and went on to observe (ibid, [13], [14], 458g to 459a), that it was "common ground that in respect of Bambino [the second defendant], not being domiciled in a member state, the issue turns on art 22 of the judgments regulation"; but "The position of the Argands [the third and fourth defendants], as Swiss citizens, is governed by the Lugano Convention". In those circumstances the question now under consideration did not arise in relation to the third and fourth defendants: they were citizens of and domiciled in a contracting state. Prima facie, the question did arise in relation to the second defendant; but it does not seem to have been the subject of any argument. Speed Investments cannot be regarded as a decision on this question.

(iii) does the claim against Mr Bhatter in the present proceedings fall within article 22(2)?

42. If I am correct in the conclusion which I have reached on question (ii) this question does not arise.
43. As I have said, the judge relied on Speed Investments in reaching his conclusion that the answer to this question was "Yes". He said this:

"34. The present case is on all fours in so far as it seeks the determination of the composition of the board of directors. It is also covered by Article 22 as regards the determination of the composition of the general body of shareholders and their entitlement to vote at general meeting. The remaining points with which the proceedings are concerned are also properly to be regarded as addressing questions as to the internal management of the company or concerned with the validity of the decisions of its organs. . . ."

44. Article 22(2) of the Judgments Regulation applies to "proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies . . . or of the validity of the decisions of their organs . . .". In Grupo Torras SA v Al-Sabah [1996] 1 Lloyds Rep 7, 15, Lord Justice Stuart-Smith rejected as "far too wide" a submission that an article in those terms "extends to all disputes which arise out of the relationship between a company and its officers or shareholders or between its shareholders and officers, and possibly even between its shareholders inter se". He explained that whether an action fell within the article "depends upon its subject matter - the nature of the dispute - not upon the relationship between the parties". He gave as an example: "A claim by an officer of a company for wrongful dismissal . . . does not fall within the article, though a claim that the decision to dismiss him had been taken by a meeting of the board which was inquorate would do so".
45. The relief sought in Speed Investments was (i) a declaration as to the identity of the directors of the first defendant company, (ii) rectification of invalid entries in the register of directors of the company and (iii) a declaration as to the validity of a written resolution of the board of directors of the company. But it is important to have in mind that the persons against whom that relief was sought were the company, the second defendant (a shareholder in the company) and the individuals, the third and fourth defendants, whom the second defendant had purported to appoint as directors of the company. Lord Justice Carnwath, after citing the observations of Lord Justice Stuart-Smith in Grupo Torras to which I have just referred, went on to say this:

"24 Reading that explanation literally, and taking a simple view of the present dispute, it seems to me to fall clearly within the Article. It is a dispute about the composition of the Board of FOH. Thus the 'subject matter' of the dispute is a 'question concerning the internal management of the company', or, more specifically, concerning the 'composition of… (one of the) organs of the company'. It also accords with practical convenience, and with the reasonable expectations of those involved, that issues of internal management such as arise in this case (who should be admitted to Board meetings? who should approve the accounts? who should be on the register of directors?) should be decided in the courts in which the company has its seat.

25. It is true that this interpretation involves some expansion of the language of the Article. The issue is not, strictly, 'the validity' of the constitution, or of any actual board decisions. However, determining the composition of the Board is clearly essential for the validity of future decisions. Stuart-Smith LJ regarded that as within the purpose of the provision. It is also consistent with the objective, which he identified, of assimilating the jurisdiction under the Convention rules to choice-of-law principles of private international law. Thus, Dicey and Morris, Conflict of Laws 13^th Ed, gives the following rule: 'Rule 154(2) All matters concerning the constitution of a corporation are governed by the law of the place of incorporation.' The supporting text (under the heading 'Internal management') states: 'The cases at least establish that the law of the place of incorporation determines whether directors have been validly appointed' (emphasis added; the footnote cites Sierra Leone Telecommunications Ltd v Barclays Bank plc [1998] 2 All ER 821). That sentence encapsulates the issue in this case."

46. There are, as I have said, claims for declarations in the present case that the purported forfeiture of shares, the allotment of shares to Namokar, resignations from and appointments to the board of directors and the change in company secretary and registered office are void, a claim (in the alternative) for relief from forfeiture and a claim to rectify the register of members. Those claims are properly brought against the Company in the English court (under article 22(2) – if not under article 2 - of the Judgments Regulation); and, if I were wrong in the conclusion which I have reached that article 22 does not found jurisdiction in respect of a person not domiciled in any Member State, could (on the authority of Speed Investments) be properly brought in the English court under article 22(2) against Namokar and the new directors. But, as I have sought to explain, on a proper understanding those claims are not claims made against Mr Bhatter.
47. The question for decision under this head is whether the proceedings against Mr Bhatter – in which the only claim against him is a claim for compensation under section 92 of the Companies Act 1985 – can be said to have as its object the validity of the constitution of the Company or the validity of the decision of one of its organs – the board of directors. In my view, the answer to that question is "No". It is important to have in mind that neither a decision of the board to allot shares in circumstances which contravene sections 89(1) and 90(1) to (5) and (6) of the 1985 Act, nor the allotment pursuant to that decision, are made invalid by the Act: the consequence of a contravention is that the company and any officer who knowingly authorised the contravention are liable to compensate any person to whom a pre-emption offer should have been made for loss sustained by reason of the contravention.

(iv) If jurisdiction in respect of Mr Bhatter were conferred by article 22(2), was the English court precluded from declining that jurisdiction?

48. If I am correct in the conclusions which I have reached on either of questions (ii) or (iii) this question does not arise.
49. The judge relied on the decision of the Court of Justice in Owusu v Jackson and others (Case C-281/02) [2005] QB 801 in reaching the conclusion that the answer to this question is "Yes". He said this:

"37. Where jurisdiction exists under the Regulation, the court on which it is conferred is obliged to hear and determine the claim even where the potential alternative court is not that of a Member State. That was established unequivocally by the ECJ in Owusu v Jackson [2005] QB 801."

50. The question for the Court of Justice in Owusu was whether a court of a contracting state was precluded from declining the jurisdiction conferred on it by article 2 of the Brussels Convention (now article 2 of the Judgments Regulation) on the ground that a court of a non-contracting state would be a more appropriate forum for the trial of the action even if the jurisdiction of no other contracting state were in issue or the proceedings had no connecting factors to any other contracting state.
51. The circumstances in which that question arose can be summarised as follows. The claimant, domiciled in England, had let from the first defendant, also domiciled in England, a holiday villa in Jamaica. The villa had access to a private beach. The claimant suffered severe injuries when diving from that beach onto a submerged sandbank. The claimant brought proceedings in England against the first defendant and five other defendants, who were Jamaican companies. The English court granted leave to serve the proceedings out of the jurisdiction on the Jamaican companies; and service was, in fact, effected on three of them – the third, fourth and sixth defendants. The first defendant applied to stay the proceedings and the third, fourth and sixth defendants applied (in effect) to set aside the order for service on them on the ground that the Jamaican courts were the forum in which the case might be tried most suitably for the interests of all parties and the ends of justice. The judge held that it was not open to him, having regard to the decision of the Court of Justice in Universal General Insurance Co (UGIC) v Group Josi Reinsurance Co SA (Case C-412/98) [2001] QB 68, to stay the action against the first defendant. He held, further, that – because he was precluded from staying the action against the first defendant – he was unable to stay the action (or set aside service) against the other defendants, notwithstanding the connecting factors that the action brought against them might have with Jamaica, because (if he were to do so) there was a risk that the courts in two jurisdictions might reach different conclusions on trials of the same factual issues and the same or similar evidence. On appeal from that decision, the Court of Appeal referred the question to the Court of Justice.
52. It is important to have in mind that the Convention did not give the English court jurisdiction in respect of the Jamaican defendants. The Court of Justice was not concerned with the question whether or not the English court had been right to refuse a stay of the action (or refuse to set aside service) against them. It was concerned only with the position of the first defendant, who was domiciled in a contracting state. Properly understood, the decision in Owusu provides no direct authority on the question whether a court of a contracting state is precluded from declining the jurisdiction (if any) conferred on it by article 22 of the Judgments Regulation in respect of a person not domiciled in a Member State on the ground that a court of a non-contracting state would be a more appropriate forum for the trial of the action.
53. A decision which is, perhaps, more directly in point is that of Mr Justice Beatson in Equitas Limited v Allstate Insurance Company [2008] EWHC 1671 (Comm), [2009] Lloyd's Rep IR 227. That was a case in which the English court had exclusive jurisdiction by virtue of articles 4(1) and 23 of the Judgments Regulation (ibid, [64]). Allstate sought a stay of the English action pending an arbitration in Texas to which it was party. Mr Justice Beatson held that to grant a stay in those circumstances would have the capacity to subvert the Owusu principle (ibid, [71], [72]).
54. The question whether there is any room at all for a Court having exclusive jurisdiction under the Judgments Regulation to stay proceedings on forum non conveniens grounds, even in a case where that jurisdiction arises in respect of a person who is not domiciled in a Member State, is a matter of controversy. It may be that the Court of Justice will take the opportunity to resolve that question on the reference which I understand to have been made by the Supreme Court of Ireland in Goshawk Dedicated Receivables Ltd v Life Receivables Ireland Ltd [2009] IESC 7, [2009] ILPr 26. Given the conclusions which I have reached on questions (ii) and (iii) it is unnecessary to resolve that question in these proceedings. I prefer to express no view: it would, I think, be inappropriate to do so.

(v) if the English Court is not precluded from declining jurisdiction on forum non conveniens grounds, should the judge have done so?

55. Given the conclusions which he had reached on questions (ii) or (iii) it was not necessary for the judge to address this question; and he did not do so. If I am correct in the conclusions which I have reached on those question (or either of them) this question does not arise on the appeal. I need not consider it.

The injunction granted

56. The second issue raised on the appeal is whether, if the judge could properly entertain proceedings against Mr Bhatter (in the absence of permission to serve the proceedings on him out of the jurisdiction), he erred in granting an interim injunction in the terms which I have described, or at all. It is said, correctly, that this Court will not interfere with the judge's exercise of discretion unless he can be shown to have erred in principle.
57. The judge directed himself that, in a case where the underlying issue – who is entitled to control the Company – could not be decided without a trial, the approach of the court should be "to hold the ring". That, as he put it, "necessarily requires restrictions on both sides which would preclude them in the meantime from seeking by the convening of a general meeting or the decision of directors to alter the composition, whatever it may be contended to be, of the board or the shareholding in the company". He took an undertaking from the claimants to that effect; and imposed a reciprocal restriction on Mr Bhatter by paragraph 1.2 of the order which he made on 11 February 2009.
58. The judge then went on to consider how best to deal with what he described as "the more acute question": that is to say "the practical management of the company's business, which cannot be frozen in the same way". After referring to arguments advanced in support of the contention that Mr Bhatter and the new directors should be left free to manage the Company to the exclusion of Mr Choudhary and Mr Rakecha, the judge said this:

"46. To my mind, . . . , the factor of paramount importance - both in general and in considering the status quo which the court should seek to preserve - is that there is in place in India a legal regime for the management of this company. By order of the Indian court it is entrusted to the Committee of Management subject to the supervision of the Joint Special Officers in the context of a suspended winding-up of the company's business located (entirely) in India. That is an order within the territorial jurisdiction of the Indian court, and it would be a serious breach of comity for the English court to endorse or proceed on the basis of any course of action in conflict with it. So long as the Indian court has not revoked its appointment of the First and Second Claimants as the Committee of Management it is wrong for any other person, whether or not a validly appointed director, to seek to manage the business of the company in their stead. It is also right for this court to reflect in its decision as to how in the interim period before trial the company's business is to be managed in India that by reason of the Indian court's order only the First and Second Claimants are currently authorised or permitted to perform this function."

And he went on:

"47. . . . If, for the reasons advanced by the defendants or otherwise, it is desirable or appropriate that the management of the company's business should be moved from the First and Second Claimants, the Indian court can change the Committee of Management, and it is better placed than this court to evaluate the rival contentions and to consider what is the best solution in the interests of all parties, including the workers and creditors as well as the other shareholders, in the light of all the circumstances (which may include the BIFR rehabilitation scheme, if it is in due course adopted). It goes almost without saying that nothing in any order made by this court should preclude any of the parties to these proceedings from making or opposing an application to the Indian court for such a change."

59. With those considerations in mind the judge held that the appropriate way to deal with the practical management of the Company's business pending resolution of the underlying dispute was to direct that Mr Bhatter should act in relation to the management of the company's business only as directed or authorised by Mr Choudhary and Mr Rakecha (as the Committee of Management established by the existing order of the High Court of Kolkata) or as might be ordered by a competent court in India. He gave effect to that view in paragraph 1.1 of his order.
60. In my judgment the only criticism that can properly be made of the order which the judge made against Mr Bhatter - assuming that he had jurisdiction to make any order in the absence of permission to serve out – is that he failed to consider whether an order in those terms served any purpose. That, I think, is a criticism which has force in circumstances where – if the order is to be enforced against Mr Bhatter – it will be enforced in India. It is wrong in principle, as it seems to me, to make an order which serves no proper purpose: a fortiori in circumstances where, if the order is to be enforced, it will have to be enforced outside the jurisdiction.
61. It is essential to keep in mind that the whole business of the Company is carried on in India; that that is where all relevant management decisions are made; and that the Indian court has directed that the body by which those decisions are to be made is the Committee of Management which that court has established. The affairs of the Company are subject to the supervision of officers appointed by the Indian court. A scheme of proposals for the rehabilitation of the Company is before the Indian court for consideration. In those circumstances the English court should be very slow to intervene: it should confine its intervention to matters which need to be done (or restrained) in England.
62. If the judge was correct in his view as to the position under the existing order of the High Court of Kolkata – and there is nothing to suggest that he was not – paragraph 1.1 of his order was unnecessary. Prima facie, that paragraph does no more than require Mr Bhatter to act in the management of the Company's business in the manner that he is already required to act by the Indian court. If it adds nothing, the English court should not be seen to suggest that it was thought necessary to reinforce the existing order of the Indian court in relation to matters in India which were under the direct supervision of that court. And, if it is thought to add something, the English court should not be trespassing upon the role of the Indian court.
63. Paragraph 1.2 of the order was also unnecessary. The appropriate order (if any) for the English court to make was an order against the Company restraining it from acting in England on any resolution that might be passed by a general meeting or the board of directors pending resolution of the underlying dispute or further order of the Indian court: and, in particular, restraining the Company from making any change to its register of members or to the particulars filed at Companies House without further order. There was no need for an order against Mr Bhatter personally; no need for undertakings by Mr Choudhary or Mr Rakecha; and no purpose in either the order or the undertakings if the other directors were free to act without restraint.
64. For those reasons I would have held, had it been necessary to do so, that the judge erred in principle in making an interim order in the terms that he did.

Conclusion

65. I would allow this appeal and set aside the order of 11 February 2009.

Further matters

66. In accordance with the usual practice, our judgments on this appeal were provided to counsel in draft before formal hand down. Counsel for the respondents took the opportunity to invite the Court to address two further matters: (i) whether, in the light of the Court's decision that permission to serve the claim form on Mr Bhatter and Namokar out of the jurisdiction was a necessary pre-requisite for the assumption of jurisdiction over those parties, such permission should now be granted; and (ii) whether, in place of the injunction granted by the judge, an order should now be made against the Company substantially in the form indicated in paragraph 63 of this judgment.
67. In my view it would not be appropriate for this Court, on this appeal, to make an order granting permission for service of the claim form on either Mr Bhatter or Namokar out of the jurisdiction. First, there is no cross-appeal from the judge's decision not to grant permission to serve out. Namokar is not party to the appeal; and it would be wrong for this Court to make any order against it. The application, in relation to Mr Bhatter, is made in the respondents' notice; but, in that context, there is no basis on which it could succeed. The appeal (to which the respondents' notice is a response) is from the order which the judge made. That was an order restraining Mr Bhatter from acting in relation to the Company's business and affairs (save as directed or authorised by the Committee of Management or the court in India) and from procuring certain decisions of the Company or its board of directors. For the reasons already set out, that was an order which should not have been made; even if the judge had assumed jurisdiction on the basis of permission to serve out. There is no purpose, in the context of an appeal from that order, in this Court granting permission to serve out: the appeal could not succeed even if permission to serve out were granted.
68. Second, even if there were a cross-appeal from the judge's decision not to grant permission to serve out before this Court, this Court does not have the benefit of a judgment explaining why, in the exercise of his discretion, the judge would or would not have granted permission to serve out (had he not thought that permission was unnecessary); and it does not have the material on which it could now exercise its own discretion de novo. As I have indicated, earlier in this judgment, objections to BIFR's proposals in the DRS were to be considered by the Indian court in February 2009. It may, I think, be assumed that that did not take place; but, plainly there are ongoing proceedings in the Indian court. This Court has not been given information as to the state of those proceedings, or as to their outcome (if any). The Court does not know whether the disputes between the parties have now been – or are likely to be (and, if so, when) - resolved by decisions in the Indian court.
69. Nor do I think it appropriate to make an order against the Company at this stage. The respondents did not seek to persuade the judge to make such an order: they were content, with (it seems) the judge's encouragement, to accept an order against Mr Bhatter alone. Given the absence of information as to the position in the Indian proceedings, I am not persuaded that an order against the company, at this stage, would serve any useful purpose.

Lord Justice Stanley Burnton:

70. I agree.
71. On the issue of permission to serve out of the jurisdiction, as appears from my Lord's judgment, the assets of the Company are in India; its affairs are subject to the jurisdiction of the courts in India; the events that gave rise to this litigation took place in India; and the individual parties, the witnesses and evidence are in India. It is obvious that the issues in these proceedings should be tried in India. When they have been determined, it may conceivably be necessary for consequential orders to be made in this country in respect of the Company. As it is, permission to serve out is inappropriate.

Lord Justice Ward

72. I agree with both judgments. I do not see that any purpose would be served by granting permission to serve out of the jurisdiction. Moreover the most convenient forum for resolving the dispute between these parties is the Indian court, not the courts of this country.