The Judicial Committee of the Privy Council Decisions

Calyon v Michailaidis & Ors (Gibraltar) [2009] UKPC 34 (15 July 2009)

Privy Council Appeal No 55 of 2008

Calyon (a company incorporated

under the laws of the Republic of France) Appellant

v.

(1) Irene Michailaidis

(2) Jonathan Guy Anthony Phillips

(3) Robert Andrew Harland (suing as Administrator

of the Estate of Christo Michailidis) Respondents

FROM

THE COURT OF APPEAL OF

GIBRALTAR

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 23^rd July 2009

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Present at the hearing:-

Lord Rodger of Earlsferry

Lord Brown of Eaton-under-Heywood

Lord Mance

Sir Henry Brooke

Sir Robin Auld

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[Delivered by Lord Rodger of Earlsferry]

1. In the Paris of the 1920s and 1930s Eileen Gray designed and made furniture in a style which would today be described as "Art Deco". Subsequently, her work was neglected until, towards the end of her long life, in the 1970s her designs came to be recognised as classics and the value of her furniture rose accordingly. This appeal concerns the ownership of one collection of her furniture.
2. Christo Michailidis ("Christo") came from a Greek shipping family, his father being Alexander Joseph Michailidis, who died in 1995, and his mother being Irene Michailidis ("Mrs Michailidis"), who is the first claimant in the present proceedings. His sister is Despina Papadimitriou ("Mrs Papadimitriou"). Members of the family have long been interested in collecting art and antiquities. From about the 1970s Christo lived with Robin Symes, a prominent dealer in antiquities, in a house (formerly two houses) at 1/3 Seymour Walk in Kensington. That was the position when, on 5 July 1999, Christo died as a result of a fall during a dinner party in a villa in Umbria. At the time of his death he was domiciled in Greece and under Greek Law Mrs Michailidis and Mrs Papadimitriou were his heirs. In February 2001 the second and third claimants, Jonathan Guy Anthony Phillips and Robert Andrew Harland, were appointed administrators of Christo's estate in England ("the administrators").
3. Christo's untimely death was to lead to a web of intricate and hard-fought litigations in various jurisdictions concerning the affairs of his family and Mr Symes. For instance, a case in the English courts, relating to a statue of the Egyptian Pharaoh, Akhenaten, reached the House of Lords on a procedural point: Phillips and Another v Symes and Others [2008] UKHL 1; [2008] 1 WLR 180. There was also litigation in the Isle of Man about the Seymour Walk house, title to which was vested in a Panamanian company, with the shares being held under an Isle of Man trust: Papadimitriou and Michailidis and Ledger (IOM) Trustee Company, Chancery Division, 18 September 2002. So the present case against Colyon in Gibraltar has to be seen as only one strand in this web of cases.
4. For a long time before Christo's death the Seymour Walk house was home to a collection of some 14 items of Eileen Gray furniture, including tables, chairs, mirrors and lacquered screens. This is "the Collection" whose ownership gives rise to the issue in the appeal. After Christo's death Mr Symes continued to live in the house, but in the spring of 2000 he sold the Collection through a Paris dealer, Robert Vallois, for $15 million. It appears that in April of that year the Collection was removed from the house at Seymour Walk and flown to Switzerland for delivery to the buyer.
5. Mr Symes caused the proceeds of the sale of the Collection to be paid in two directions: $4.4 million (less M Vallois' commission) to a Panamanian company, Xoilan Trader Inc, and $10.4 million to another Panamanian company, Tradesk Inc, operated from Liechtenstein.
6. On or about 3 May 2000 Mr Symes caused a company, Lombardi Corporation, to be incorporated in the British Virgin Islands.
7. On 8 May 2000 the $10.4 million was withdrawn from Tradesk's account and transferred to the account of a Liechtenstein foundation of which Mr Symes was the beneficiary. On 7 June Mr Symes caused a deposit guarantee account to be opened in the name of Lombardi Corporation with the Gibraltar branch of Calyon, the present appellant. Calyon is the corporate and investment banking arm of Crédit Agricole SA. On 28 June the $10.4 million in the Liechtenstein foundation's account was remitted to Lombardi's Gibraltar account. This enabled Calyon's London branch to grant Mr Symes' company, Robin Symes Limited ("RSL"), a term loan facility in the sum of $10.3 million.
8. After Mr Symes had drawn down and disbursed most of this facility for his own or RSL's purposes, the facility was repaid in full by a payment of some £9.86 million emanating from Lombardi Corporation's account with Calyon's Gibraltar branch. In October 2001 the balance of the account was disbursed elsewhere for Mr Symes' purposes.
9. The Michailidis family had not been aware of the sale of the Collection. When they found out, they took the view that Mr Symes had had no right to sell it - the Collection had belonged to Christo and had passed to his heirs on his death. It is fair to say that members of the family have given a number of versions of how they came to acquire the Collection. In the Particulars of Claim in the present action the claimants said that, before Alexander Michailidis' death, the Collection belonged to him either exclusively or jointly with his wife, Mrs Michailidis, the first claimant. They then give two possible versions of what followed. Either, on some unknown date, Alexander had given the Collection to Christo or, alternatively, following Alexander's death, the Collection, or his half share in it, passed to his wife, the first claimant. Either way, it did not belong to Mr Symes. In the English High Court proceedings which their Lordships will mention in a moment, another version of Christo's acquisition of the Collection was advanced. In the course of the hearing before the Board, however, Mr Steinfeld QC, on behalf of the claimants, indicated that their position now was that Alexander and Mrs Michailidis had given the Collection to Christo. That version seems to accord with the terms of the Greek judgment of June 2004, part of which their Lordships recite in para 15 below.
10. On 12 February 2001, very shortly after their appointment, the administrators wrote to Mr Symes asking about the whereabouts of the Collection. By this time Mr Symes had, however, moved to Switzerland and the administrators were told this. On 23 February 2001 the administrators and Mrs Papdimitriou therefore issued the claim form in proceedings against Mr Symes and RSL in the Chancery Division of the English High Court. Various issues were raised, including questions as to the existence of an alleged partnership between Christo and Mr Symes and, more especially, an allegation that Christo had acquired the Collection for himself and/or his sister, Mrs Papadimitriou.
11. Meanwhile, also on 23 February 2000, Mr Symes and RSL had issued proceedings in the multi-membered court of first instance in Athens, joining the administrators and Christo's heirs, Mrs Papadimitriou and Mrs Michailidis, as defendants. In those proceedings Mr Symes and RSL in effect claimed negative declaratory relief as to the matters which were in dispute in the English proceedings, including, in particular, a declaration that he had been the owner of the Collection.
12. A dispute arose as to which set of proceedings should go ahead. In July 2001, in the English proceedings, Hart J held that Mrs Papadimitriou's claim should be stayed, as should the administrators' claims that certain assets, including the Collection, belonged to Christo, independently of the partnership business. The English proceedings relating to the administrators' claims based on the alleged partnership were to go ahead, however. See Phillips & Another v Symes & Robin Symes Ltd [2001] EWHC 395 (Ch).
13. In these circumstances Mrs Michailidis, Mrs Papadimitriou and the administrators entered the proceedings in the Greek court. On 12 October 2001, Mrs Michailidis and Mrs Papadimitriou counter-claimed against Mr Symes and RSL, asserting, in particular, that they had been the owners of the Collection after Christo's death and that Mr Symes had misappropriated and sold it. Due to changes in procedure, the Greek proceedings may have come on for determination more quickly than Mr Symes had anticipated. At all events, in October 2002 he applied to waive his action in the Greek court. This would, he contended, also put an end to the proceedings on the counter-claim. That application was eventually refused by the Greek court.
14. It is unnecessary for present purposes to examine the progress of the Greek proceedings in detail. But two events which occurred during those proceedings should be noted. First, in March 2003 Mr Symes was adjudicated bankrupt and administrative receivers were appointed to RSL. The counter-claimants' proceedings in Athens continued against the trustees in bankruptcy and the receivers. Secondly, in about March 2004 Mrs Michailidis and the administrators discovered that – as already described - part of the proceeds from the sale of the Collection had been deposited in the Gibraltar branch of Calyon. On 7 April 2004 Mrs Michailidis issued the present proceedings against Calyon in the Supreme Court of Gibraltar. In broad terms, she claimed that Calyon had dishonestly assisted Mr Symes to misappropriate monies held on trust for her. In due course the administrators were added as claimants. Calyon put in a defence, part of which was to deny the claimants' allegation that they had been the owners of the Collection at the time it was said to have been misappropriated.
15. On 30 June 2004 the Athens court delivered judgment. In particular, the court upheld the claims of Mrs Michailidis and Mrs Papadimitriou that they had been the owners of the Collection and held that each of them was entitled to €5,428,942, corresponding to her share in the value of the Collection, and €150,000 as financial satisfaction for moral damage by reason of the misappropriation of their property. In translation, the part of the judgment dealing with the ownership of the Collection was to this effect:

"The second counter-plaintiff [i e Mrs Michailidis] had acquired the ownership of the above-described pieces of furniture together with her husband Alexandros Michaelides in Paris in the years 1971-1972, when she had bought them in order to enrich the family collection of antiquities and other works of art. Then, in 1974-1975, the second counter-plaintiff and her husband had transferred the ownership of said moveable objects to their son, Christos Michaelides, by virtue of a donation, in order to be placed in the 1/3 Seymour Walk house in London. Therefore, Christos Michaelides became in a derivative manner the owner of said pieces of furniture and after his death the counter-plaintiffs became owners therefore, each by a ½ indivisible share. [At this point note should be made that, despite the fact that the counter-plaintiffs respond to the procedural burden they bear with respect to the proof of their joint ownership, as specified hereinabove, over the disputed moveable objects (items in the first defendant's personal collection of antiquities and other works of art and furniture designed by Eileen Gray), by way of their invocation and production of the means of evidence previously mentioned (sworn testimonies of witnesses in court, affidavits, documents etc), the counter-defendants, nevertheless, neither produce nor invoke in their written submission (in the extent they are present and represented before this Court) any means of evidence whatsoever, whose assessment would provide the Court the possibility to reach a different conclusion – other than the one reached pursuant to the above in connection with the acquisition of the disputed objects.]"

As was remarked earlier, this finding of the Greek court presumably explains why, in the present proceedings, the claimants now put their claim to the ownership of the Collection on the basis that it had been given to Christo by his parents.

16. In October 2004 the trustees in bankruptcy gave notice of appeal against the Greek court's judgment. Only after that, in June 2005, was Calyon first told of the Greek proceedings and judgment. The following month it was told about the appeal. When correspondence between the parties in the Gibraltar proceedings about the proof of ownership of the Collection did not lead to agreement, on 22 May 2006 Dudley J granted the claimants' application for a stay pending the Greek court's determination of the question of ownership "without prejudice to the defendant's contention that the decision of the Court of Appeal in Athens is not binding on it in Gibraltar…."
17. The appeal in the Greek proceedings was formally withdrawn on 1 February 2007 in the context of a settlement between the trustees in bankruptcy and the counter-claimants, which covered a wide range of matters and actually involved a net payment by the Michailidis interests to the trustees of some $2 million.
18. With the Greek proceedings at an end and with the judgment of the Greek court standing in their favour, the claimants in the present proceedings, Mrs Michailidis and the administrators, returned to the charge. On 31 May 2007 they gave notice of an application under CPR 24 for an order that summary judgment be given for the claimants on the issue:

"that it be declared (for the purposes of these proceedings only) that at all material times the Claimants owned the Collection … on the ground that ownership of the said Collection has been conclusively determined by the Courts of Greece…."

On 25 October 2007 Dudley CJ (Ag) refused the application for summary judgment. The claimants appealed to the Court of Appeal and, on 18 April 2008, in accordance with the judgment of Otton JA, with which Stuart Smith P and Aldous JA agreed, the Court of Appeal allowed the appeal and granted summary judgment declaring that at all material times the claimants owned the Collection. On 10 December 2008 Her Majesty granted Calyon's petition for special leave to appeal to the Board.

19. After that long introduction, their Lordships start their consideration of the issues by emphasising – as Mr Mowschenson QC rightly emphasised on behalf of the appellants – the single, narrow and specific basis on which the claimants made their application for summary judgment: "that ownership of the said Collection has been conclusively determined by the Courts of Greece." In other words, although ownership is critical to their case, the claimants have put forward no evidence of any kind in these proceedings to support their claim to have been the owners of the Collection at the time it was sold. They contend that no such evidence is required because they are simply entitled to rely on the conclusive determination of the Greek court that the Collection belonged to Christo and so, on his death, ownership passed to his heirs. It follows, of course, that, if the decision of the Greek court is not, in fact, a sufficient basis for granting summary judgment as to their ownership of the Collection, the application must fail.
20. So far as can be discovered from the papers in this case, the Collection was last seen as it was flown from London to Switzerland in April 2001 to be delivered to its purchaser. There is therefore no reason to suppose that the Collection was ever "so situated as to be within the lawful control of the State [Greece] under the authority of which" the court which determined its ownership sat. So the Greek judgment does not satisfy the first test for a judgment in rem, laid down by Blackburn J, giving the opinion of most of the consulted judges, and approved by Lord Chelmsford in Castrique v Imrie (1870) LR 4 HL 414, 429 and 448. The Court of Appeal duly held that the Greek judgment was not a judgment in rem. Counsel for the claimants and respondents, Mr Steinfeld QC, did not challenge that conclusion. The Board agrees with it and therefore proceeds on the basis that the Greek judgment was in personam.
21. Equally clearly, the appellant, Calyon, was not a party to the counter-claim in the Greek proceedings. Indeed the counter-claimants did not find out about Calyon's involvement to the matter until some three years after they began their counter-claim. And not only was Calyon not then added as a defendant in the counter-claim, but it was not even told about the Greek proceedings until after the judgment had been given and had been appealed. Nor does Calyon in any sense stand in the shoes of Mr Symes or RSL. In these circumstances, since Calyon was not itself a party to the proceedings, the judgment of the Greek court could not give rise to any estoppel per rem judicatam against Calyon in the present proceedings – even if it would have given rise to such an estoppel against Mr Symes and RSL. The Court of Appeal rightly so held and the respondents did not cross-appeal against that decision.
22. Counsel for the claimants made some reference to article 33(1) of Council Regulation (EC) No 44/2001 of 22 December 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters:

"A judgment given in a Member State shall be recognised in the other Member States without any special procedures being required."

In their written case counsel referred to Layton and Mercer, European Civil Practice (2nd edn, 2004), para 24.006, where it is said that "recognition involves equating the authoritative nature of a foreign judgment with a judgment delivered in the state addressed." Basing himself on this comment, Mr Steinfeld submitted that the effect of recognition of the Athens judgment is that it enjoys no less a status in Gibraltar than an equivalent judgment of the Gibraltar court itself.

23. Suppose, then, that a judge of the Gibraltar Supreme Court had held, in proceedings between Christo's heirs and Mr Symes and RSL, that Christo had been the owner of the Collection and that the title to the Collection had passed to his heirs on his death. What effect would such a judgment have as evidence in the present proceedings in which Mrs Michailidis and the administrators sue Calyon? The answer to be derived from the approach of the law as exemplified by the decision in Hollington v F Hewthorn & Co Ltd [1943] KB 587 is: None.
24. In Hollington the defendant's car, when being driven by an employee, collided with the plaintiff's car driven by his son. The son was injured and the car was damaged. The driver of the defendant's car was convicted of careless driving. The owner of the other car and his son sued the defendant for damages on the basis of the defendant's driver's negligent driving. The son then died and the father continued the action on his behalf as the administrator of his estate. Due to his son's death, the plaintiff was forced to try to rely on the driver's conviction to provide prima facie evidence of his negligent driving. The Court of Appeal held that, both on principle and on authority, evidence of the conviction was inadmissible for that purpose and the action failed.
25. Giving the judgment of the Court of Appeal, Lord Goddard CJ pointed out, at pp 594-595, that:

"The court which has to try the claim for damages knows nothing of the evidence that was before the criminal court. It cannot know what arguments were addressed to it, or what influenced the court in arriving at its decision."

Even assuming that the plaintiff could show that the conviction referred to the particular incident giving rise to the claim, Lord Goddard continued, at p 595:

"It is admitted that the conviction is in no sense an estoppel, but only evidence to which the court or a jury can attach such weight as they think proper, but it is obvious that once the defendant challenges the propriety of the conviction the court, on the subsequent trial, would have to retry the criminal case to find out what weight ought to be attached to the result. It frequently happens that a bystander has a complete and full view of an accident. It is beyond question that, while he may inform the court of everything that he saw, he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court has to decide, but, in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant, but his opinion is not. The well recognized exception in the case of scientific or expert witnesses depends on considerations which, for present purposes, are immaterial. So, on the trial of the issue in the civil court, the opinion of the criminal court is equally irrelevant."

Lord Goddard went on to refer to the statement of Sir William Grey, Lord Chief Justice of the Common Pleas, giving the view of the consulted judges in the Duchess of Kingston's Case (1776) 2 Sm L C, 13th edn, 644. The passage, at pp 644-645, is worth quoting in full:

"What has been said at the bar is certainly true, as a general principle, that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment he might think erroneous; and therefore the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding the fact, and the judgment of the court upon facts found, although evidence against the parties, and all claiming under them, are not, in general, to be used to the prejudice of strangers. There are some exceptions to this general rule, founded upon particular reasons, but, not being applicable to the present subject, it is unnecessary to state them."

26. Having referred to the last part of this passage, Lord Goddard went on:

"This is true, not only of convictions, but also of judgments in civil actions. If given between the same parties they are conclusive, but not against anyone who was not a party. If the judgment is not conclusive we have already given our reasons for holding that it ought not to be admitted as some evidence of a fact which must have been found owing mainly to the impossibility of determining what weight should be given to it without retrying the former case."

27. The Court of Appeal in Hollington may have chosen the analogy with the opinion of a bystander because they were dealing with a conviction by lay magistrates. Admittedly, that analogy may seem rather unsatisfactory where the previous decision is by a professional judge. Nevertheless, the essential reasoning is compelling: unless the second court goes into the facts for itself, it cannot actually tell what weight it should properly attach to the previous decision. Which means that the previous decision itself cannot be relied upon.
28. The actual decision in Hollington has, of course, been criticised - for example, by Lord Diplock in Hunter v Chief Constable of the West Midlands [1982] 1 AC 529, 543, and by Lord Hoffmann in Arthur JS Hall v Simons [2002] 1 AC 615, 702D-F. And there is a well established exception to the rule in the case of the facts found in the reports of company inspectors acting under statute: see the authorities analysed by Thomas LJ in Secretary of State for Business Enterprise and Regulatory Reform v Aaron [2008] EWCA Civ 1146. But Hollington continues to embody the common law as to the effect of previous decisions: "In principle the judgment, verdict or award of another tribunal is not admissible evidence to prove a fact in issue or a fact relevant to the issue in other proceedings between different parties", Land Securities v Westminster City Council [1993] 1 WLR 286, 288E-F per Hoffmann J. In Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1, 238D-E, Lord Steyn held that, in proceedings against the Bank for misfeasance in public office, reliance by the court on the conclusions and findings of the Bingham Report on the collapse of BCCI was ruled out "by settled principles of law", even though the report was "self-evidently an outstanding one produced by an eminent judge."
29. These "settled principles", which can be seen as fully established by the time of the Duchess of Kingston's Case, were scrutinised in the Fifteenth Report of the Law Reform Committee (1967, Cmnd 3391). The result of the Committee's Report was Part II of the Civil Evidence Act 1968. Section 11 reversed the actual decision in Hollington v Hawthorn and made previous convictions admissible so that the defendant is to be taken to have been guilty of the conduct in question, except in so far as the contrary is proved. Two other particular changes recommended by the Committee were also enacted. The Committee recommended no other changes in the law and Parliament made no other changes.
30. Having dealt with the particular situations where they recommended reform, the Committee went on to consider the status of previous decisions by civil courts on matters of fact. At para 38 of the Report, the Committee said this:

"With the exceptions with which we have already dealt, an issue of fact in one civil action is seldom the same as an issue of fact in another civil action between different parties. In practice it is only likely to arise where a number of different persons are injured in the same accident by the same acts of negligence. Such cases are most conveniently dealt with by all the injured parties joining in the same action, by consolidation, or by agreeing to treat one action as a test action. It is, however, theoretically possible (and has occasionally happened) that separate actions brought by different passengers in the same vehicle have been tried at different times by different courts with different results. This is undesirable and should be avoided by one or other of the means referred to above. But we do not think that, where there are two civil actions between different plaintiffs against the same defendant or by the same plaintiff against different defendants which do raise the same issue of fact, the finding of the court should be admissible in the second action. As we have already pointed out, in civil proceedings the parties have complete liberty of choice as to how to conduct their respective cases and what material to place before the court. The thoroughness with which their case is prepared may depend upon the amount at stake in the action. We do not think it just that a party to the second action who was not a party to the first should be prejudiced by the way the party to the first action conducted his own case, or that a party to both actions, whose case was inadequately prepared or presented in the first action, should not be allowed to avail himself of the opportunity to improve upon it in the second."

31. The Committee's reasoning develops the reasoning in the first of the passages which the Board has quoted from Lord Goddard's judgment in Hollington. Their Lordships find that reasoning compelling. What is more significant, perhaps, is that Parliament must have found the reasoning convincing since the Civil Evidence Act and its Scottish counterpart made no change to this aspect of the law. The Parliament of Gibraltar has not yet had occasion to consider the matter.
32. Their Lordships are accordingly satisfied that, even if it were open to them to do so, they would not accede to Mr Steinfeld's submission that they should depart from the established principles underlying Hollington. In particular, he argued that, even if the Greek judgment could not be regarded as conclusive, it should still be admitted in evidence and given such weight as seemed appropriate. But there could be no better illustration of the difficulties of that superficially attractive solution. The simple fact is that the Greek judgment does not indicate the substance of the evidence on which the court relied in holding that the counter-plaintiffs had proved their ownership of the Collection. So a judge in the Gibraltar Supreme Court would be in no position to determine what weight it was appropriate to give to the Greek judgment on the point.
33. For all these reasons the Board sees no basis for admitting evidence of the Greek judgment, far less for holding that it should be regarded as furnishing prima facie evidence, for the purposes of these proceedings, that Mrs Michailidis and Mrs Papadimitriou were the owners of the Collection at the time when it was sold.
34. Mr Steinfeld's final contention was that, if, by not accepting the claimants' title to the Collection, Calyon could force them to establish in these proceedings what they had already proved in the Greek proceedings, this would be an abuse of process. There were, after all, only two possibilities: either the Collection belonged to the claimants or it belonged to Mr Symes and RSL. Mr Symes and RSL had not even attempted to establish their supposed title or to challenge the claimants' title in the Greek proceedings. Moreover, in the course of the various litigations Mr Symes had been shown to be a liar, had been imprisoned and had been completely discredited. Since there was, accordingly, no realistic possibility that anyone other than the claimants owned the Collection, the Court of Appeal had been right to conclude that Calyon's tactic would amount to an abuse of process.
35. In Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536, Lord Diplock referred to "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people." The authorities show that re-litigating an issue can indeed amount to an abuse of process even where the parties to the proceedings are different from those in the earlier proceedings: Bradford & Bingley Building Society v Seddon [1999] 1 WLR 1482, 1491G-H, per Auld LJ. But in such a case the onus is on the person who alleges that it is an abuse of process to establish what makes the further litigation an abuse. In Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd [1982] 2 Lloyd's Rep 132, 138, Sir David Cairns said:

"I do not accept the proposition … that when an issue has already been decided in proceedings between A and B it is prima facie an abuse of the process of the court for B to seek to have the issue decided afresh in proceedings between himself and C and that in such circumstances there is an onus on B to show some special reason why he should be allowed to raise the issue against C. On the contrary, I consider that it is for him who contends that the retrial of the issue is an abuse of process to show some special reason why it is so."

36. It is accordingly for the claimants in these proceedings to show some special reason why it would be an abuse of process for them to have to prove their title to the Collection. The test to be applied is exacting: the claimants must show that it would be manifestly unfair to them that the same issues should be re-litigated or that to permit such re-litigation would bring the administration of justice into disrepute: Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, 17, at para 38, per Sir Andrew Morritt V-C. That test is appropriate since, if re-litigating the point would amount to an abuse of process, Calyon would in effect be stopped from contesting the point. So they would be in a worse position than if the Greek judgment were admissible as prima facie evidence of ownership, which Calyon might nevertheless challenge by leading any available evidence to the contrary. See Conlon v Simms [2008] 1 WLR 484, 518, at para 147, per Jonathan Parker LJ.
37. In their Lordships' view the claimants have not satisfied the exacting test for abuse of process. A number of factors are relevant. Since the claimants have chosen to rely simply on the Greek judgment, which does not set out the evidence on which the court relied, they are in no position to show how strong the evidence supporting the Greek court's judgment was – and hence how inappropriate it would be for them to have to re-litigate the point. Very strikingly, for reasons which the Board finds hard to fathom, the claimants have never given any indication in these proceedings of the evidence which they have, for example, of the purchase of the Collection by Alexander Michailidis and his wife or, indeed, of the gift from his parents to Christo. Yet, in a world where provenance is not infrequently disputed, one might expect there to be documents vouching legitimate transactions of these kinds involving such a valuable collection. Moreover, as already pointed out, although the claimants have now fixed on one particular basis for their claim to ownership, members of the family have previously put forward other, inconsistent, versions. Next, since the claimants chose to rely simply on the Greek judgment and to seek summary judgment based on it, not only does the Gibraltar court not know what their evidence at trial might be, but it equally does not know what evidence about ownership Calyon might be able to bring forward from persons other than Mr Symes. Finally, and perhaps most importantly, Calyon is the defendant in these proceedings. Mrs Michailidis and the administrators have chosen to come after the bank in an action which they can only win if they prove that they were owners of the Collection when Mr Symes sold it. As the Board has mentioned more than once, Calyon played no part in the Greek action which the claimants rely on; it was not joined as a defendant; indeed the Michailidis family and their representatives chose not to tell the bank about it until a late stage. In these circumstances their Lordships can see no hint of an abuse of process in Calyon insisting that Mrs Michailidis and the administrators should prove this essential element in their claim against it. Re-litigating the point would neither be manifestly unfair to them, nor bring the administration of justice into disrepute. That would remain the position even if the Gibraltar court reached a different conclusion as to the ownership of the Collection at the relevant time: the interests of justice would be served, provided that the court's judgment was correct, having regard to the evidence adduced before it.
38. One final comment. The Board cannot know the thinking that may have led the claimants to seek to resolve the issue of the ownership of the Collection by the mechanism of a summary judgment based on the Greek judgment. The failure of that tactic means that roughly two years have been wasted. If the point had not been taken and pursued with such determination, on the face of it at least, the matter could by now have reached, or have been well on the way to, trial.
39. For these reasons their Lordships are satisfied that the application for summary judgment should be dismissed. They will accordingly humbly advise Her Majesty that the appeal should be allowed, the order of the Court of Appeal should be set aside, and the order of Dudley CJ (Ag) restored. The parties should make written submissions on costs within 21 days.