Mr. Justice RIX:
I am concerned with an application made on behalf of Mr. George P.
and B. Services Inc. ("B.") to contest the jurisdiction of this Court. Mr.
P. is domiciled in Greece, and submits that by reason of art. 2 of the
Brussels Convention he must be sued in Greece; B. is a Liberian company,
and submits that jurisdiction has been wrongly asserted over it as a
"necessary or proper party". Moreover, since the action against these
defendants takes the form of a fourth party claim, additional points
arise as to whether the relief claimed against them falls properly within
either the jurisdiction or the discretion granted by R.S.C., O. 16. It is
also said that there is no cause of action against them. On the other
hand, the parties who stand in relation to them as claimants, namely
the third parties Gl. International A.G., Mo. Export Corporation and Te.
International Trading Inc. (respectively "Gl.", "Mo." and "Te."), submit that
Mr. P. and B. have in any event submitted to the jurisdiction.
This application arises in the context of proceedings of the utmost
complexity and has given rise to four days of detailed, intricate and
cogent submissions put before me by Mr. Steven Gee, Q.C. on behalf
of the fourth parties and Mr. Alistair Schaff, Q.C., on behalf of Gl. (for
these purposes also representing Mo. and Te.). Were it not for the fact
that Mr. P. is within another week or so facing a most serious application
to commit him for contempt of Court, I would have preferred to reserve
this judgment for an exposition which would do proper justice to the
submissions which have been put before me. As it is, the Court appointed
receivers who have brought the motion to commit against Mr. P. have
indicated to him that they will not proceed with their application if this
Court finds that it has no jurisdiction over him. In the circumstances it is
necessary for me to give judgment without delay, and having given the
matter careful consideration I do so today.
Time does not permit me therefore to set out the factual background to
this judgment as otherwise I would desire to do. Suffice it to say that
the fourth party claim against Mr. P. and B. arises out of the collapse
in February, 1998 of M. T. I. Inc. ("MTI"), a company engaged in the
business of storing, blending and trading in fuel oil in and off Fujairah.
Oil or oil trading companies such as Gl., Mo. and Te., but also others such
as Ca. Trading Pte. Ltd. ("Ca."), the plaintiff in the original action out of
which the third and fourth party proceedings have grown, 1998 Folio No.
248, stored their oil in huge storage vessels stationed off the coast of
Fujairah. Cargoes were also blended on these vessels, and were bought
and sold between MTI itself and the depositors, as well as being sold from
the storage vessels to outside parties. When in February, 1998 it was
discovered that enormous quantities, as it now seems some two or so
million tons, of oil were missing, MTI collapsed and litigation ensued in
which the critical issue has been which if any of the various oil claimants,
or MTI itself, has title to such oil as remained in storage or could be
traced, or to the proceeds of such oil or of missing oil.
The litigation embraced the oil claimants, the owners of the storage
vessels, and the owners of other vessels which were currently carrying
the disputed oil. Some at least of the leading contracts which governed
the relationship between the oil claimants and MTI contained English
law and jurisdiction clauses, as well as retention of title clauses. MTI's
sales also typically contained English law clauses. Jurisdiction was
therefore established, at any rate provisionally, in the English Courts for
a growing number of actions and interpleader proceedings. On Mar. 3,
1998 Mr. Justice Tuckey made an important order in those proceedings,
the so-called "receivership order", in which he appointed receivers to
get in and sell the disputed oil, and to obtain discovery of all relevant
documentation. The order therefore made provision for the delivery up
by the shipowners to the receivers of the cargoes on board their vessels,
for the preservation of the cargoes or their proceeds meanwhile, and for
the delivery up and disclosure of relevant documents. This order was
a necessary precondition not only for the preservation of the disputed
property, but also for the orderly processing towards trial of the issues of
title.
On Feb. 27, 1998, a few days before the receivership order, a bankruptcy
petition was filed on behalf of MTI in Athens. MTI is a Liberian company,
but it is said (I am not sure if it is still in dispute) that its seat or central
administration was in Greece. The receivers and the oil claimants
maintain, however, that the receivership order was and is directly, and
without the need for any formal registration, binding in Greece under
the terms of the Brussels Convention, see art. 26 and following. That
is, however, disputed by Mr. Emmanuel Grigoriades, who on Mar. 26,
1998 was appointed liquidator of MTI by the bankruptcy Court in Athens.
That issue remains unresolved. In due course Mr. Grigoriades was made
a party to the leading actions in this litigation, not only Ca.'s action in
Folio 248, but also Gl.'s action in 1998 Folio No. 273. Mr. Grigoriades has
challenged the jurisdiction of the English Court, but a few months ago
abandoned that challenge.
Among the shipowners who appeared before Mr. Justice Tuckey on the
occasion of the making of the receivership order were St. Shipping Ltd.
("St."), the owners of Cherry, and Ta. Shipping S.A. ("Ta."), the owners
of Nafkratis. Both these vessels at that time were carrying disputed oil
cargoes which fell within the receivership order. St. subsequently put
forward a contingent challenge to the jurisdiction, contingent, that is to
say, upon Mr. Grigoriades' challenge to the jurisdiction. The contingent
challenge failed with Mr. Grigoriades' abandonment of his challenge.
However, Mr. Schaff submits, I suspect with accuracy, that St. had already
submitted to the jurisdiction of the Court before Mr. Justice Tuckey.
Indeed, it is a plaintiff in its own action against MTI, 1998 Folio No. 219.
I mention St. (the fifth defendant in Folio 248) and its vessel Cherry in
order to introduce how, at any rate factually, Mr. P. and B. come into
the story. St., despite the orders made against it under the receivership
order, was unwilling to comply with them. It was the only shipowner
which refused to deliver up its cargo to the receivers. Although there is
no motion to commit against it, it would appear to be in clear contempt
of Court. Following the receivership order, there was a meeting on Mar.
6, 1998 between the receivers and Mr. P. regarding the terms on which
the Cherry cargo might be delivered up. The meeting was at the offices
of St.'s managers in Greece, Dy. Tankers Management. Mr. P. led the
discussion on behalf of Dy. and St.. St. was only prepared to deliver up
its cargo if it was paid an outstanding sum of hire. Mr. Peter Lawrence,
one of the receivers, had deposed that it was apparent to him from that
meeting that Mr. P. was the controlling mind and main interest behind
Dy. and (among other shipowning companies also involved) St.. Gl. had
previously in February, 1998 also negotiated with Mr. P. concerning the
Cherry's cargo. There is evidence before me of grounds upon which Mr. P.
might well be regarded as the beneficial owner of St. and Cherry, albeit
that is in dispute and I am anxious to say nothing that may prejudice any
argument on the motion for contempt. I cannot avoid saying however that
there is at any rate prima facie evidence before me that Mr. P., whatever
his formal role, aided and abetted the refusal of St. to comply with its
obligations under the receivership order.
Following St.'s refusal to deliver up the Cherry's cargo to the receivers,
Mr. P., as representative of B., newly incorporated in late March, 1998,
proceeded to bid for the Cherry's cargo in the bankruptcy proceedings
in Athens. Briefly, what appears to have happened is this, albeit I should
state that all such findings are provisional only and subject to any fuller
argument in the contempt proceedings. On Apr. 6, 1998 Mr. Grigoriades,
as liquidator, applied to the Athens Court for authority to sell the Cherry
cargo, and on Apr. 7 and 10 that Court authorized him to do so, on the
latter occasion without public auction. On Apr. 28 Mr. Grigoriades agreed a
sale with B. (the receivers say that was at a substantial undervalue), and
on Apr. 30 the Athens Court approved the sale. In its judgment that day,
it also appears to have found that the cargo belonged to MTI, albeit that
issue was in dispute in the London proceedings. There is a dispute about
what happened in Athens on Apr. 30. It is submitted by Mr. Gee that the
Athens judgment was made in the teeth of Gl.'s application to stay any
sale, and in the presence of Gl.'s lawyers. However, Gl.'s evidence is that
while its lawyers were seeking, before another tribunal, unsuccessfully to
stay the Cherry cargo sale, Mr. Grigoriades, without notice to Gl. and in
its absence, obtained the Court's approval for the sale. I cannot resolve
that issue, but I can say that there is a real dispute as to whether the
judgment of the Athens Court approving the sale would be entitled to
recognition under the Brussels Convention. Mr. Schaff submits that it
would not: see in particular art. 27(2).
Subsequently, Gl. applied on May 26, 1998 to stay the Cherry cargo sale
pending appeal, and obtained a stay. On July 12, 1999, Gl.'s appeal failed,
in a Court of first instance. Gl. promptly lodged a further appeal to the
Athens Court of Appeal, which is pending: its full notice of appeal dated
July 29, 1999 is before me.
In the light of the sale by Mr. Grigoriades as MTI's liquidator to B., Gl.
(by which I intend to refer to Mo. and Te. as well) sought to bring Mr. P.
and B. within the English proceedings. It is for this reason that I have
mentioned Ta., the owner of Nafkratis, above. Ta. is third defendant in
Folio 248. On Feb. 24, 1998 it issued a third party notice in the nature
of interpleader proceedings against (inter alia) Gl., Mo. and Te. in order
to obtain a judicial ruling on the title to the cargo it was then carrying.
Subsequently, on Apr. 16, 1998, its notice was amended with leave to
embrace Mr. Grigoriades and the receivers as third parties. On May 12,
1998, Gl., Mo. and Te. each issued, with the leave of the Court, obtained
ex parte, a fourth party notice against Mr. P. and B. in order to obtain
relief in respect of the Cherry cargo. Mr. Gee submits that the fourth party
notice, concerned as it is with the Cherry cargo, has nothing to do with
Ta.'s third party claim in respect of the Nafkratis cargo and therefore is
not within the jurisdiction authorized by R.S.C., O. 16. He also submits
that Ta.'s third party claim is now, and was already by the time of issue
of the fourth party notice, effectively dead, and therefore cannot properly
support the fourth party proceedings. Indeed, he also submits that Ca.'s
original claim against Ta. is factually mistaken and cannot succeed, and
on this ground too seeks to remove any prop to the fourth party claim.
I shall return to such issues below, where, for the purpose of dealing
with them, I shall have to set out the third and fourth party claims in full.
However, because Mr. Schaff's argument that Mr. P. and B. have submitted
to the jurisdiction raises a separate and relatively self-contained issue,
and because, if it is correct, it is a complete answer to this application, I
shall turn to that issue first.
I have sketched as briefly as possible the background to the application
made before me. I would refer in general, and incorporate by reference
in this judgment, the case memorandum and case memorandum
chronology which have been prepared for the purpose of the so-called
Metro litigation. I do not think that these documents are formally agreed
– they have been prepared by Mr. Richard Southern, Gl.'s junior Counsel –
but they have been used as the basis of several major case management
conferences without complaint, and I believe that they have proved a
most useful tool in these complex proceedings. The chronology is not
complete: but where I have found it necessary to draw attention to
particular events or their dates, I do so in this judgment.
Submission to the jurisdiction
To deal with this issue, I need to set out some further facts. Mr. P. and B.
were first impleaded by the fourth party notice on May 12, 1998. They
did not issue their R.S.C., O. 12, r. 8 summons to challenge jurisdiction
until Apr. 1, 1999. When they did so, their original summons did not
take any point regarding international jurisdiction under the Brussels
Convention or R.S.C., O. 11, but was limited to applications under (a)
R.S.C., O. 18, r. 19 on the ground that the fourth party notice did not
disclose any reasonable cause of action, and (b) R.S.C., O. 16, r. 4(2)
and/or r. 4(3)(c) on the ground that the claims contained in the notice
were not within O. 16, r. 1(1) or r. 9. It was only by amendment for which
leave was given on May 21, 1999 that the summons was amended to
include any point under the Brussels Convention or O. 11. I would for
myself describe the difference between the original summons and the
amendment by saying that the original summons was dealing only with
subject-matter jurisdiction, whereas the amendment was dealing for the
first time with personal jurisdiction. I am not clear that the contents of the
original summons were properly a matter for O. 12, r. 8, as distinct from
applications under O. 18, r. 19 and O. 16, r. 4: but that distinction was
not taken before me, and therefore I will not take it for the purpose of my
decision. On the contrary, I will assume that the summons issued on Apr.
1, 1999 was in its ultimate amended form.
In anticipation of the issue of the fourth party notice, Mr. Hofmeyr had
appeared on behalf of Gl., Mo. and Te. ex parte before Mr. Justice Tuckey
on May 5, 1998. He asked for and obtained the following orders, which
were drawn up in two orders dated May 8, 1998. One order, which I shall
call the injunction order, (i) gave leave to issue and serve a fourth party
notice on Mr. P. and B. out of the jurisdiction; and (ii) injuncted them
not only from participating in the sale of the Cherry cargo to B. but also
from in any way taking delivery or possession of the cargo or interfering
with its delivery up to the receivers pursuant to the receivership order.
Whatever may be the validity of their present challenge to the Court's
jurisdiction, or of their reliance on the judgment of the Greek Court
permitting sale of the cargo, Mr. P. and B. would prima facie appear to be
in breach of those orders. In the circumstances, if they were minded not
to obey them, they ought, under whatever reserves as to jurisdiction they
might have wished to make, to have come to the English Court to obtain a
discharge of those injunctions.
The second order, which I shall call the Mareva order, was a world wide
injunction over their assets up to the value of U.S.$6.5 m. (essentially
representing the value of the cargo), premised on the hypothesis that the
cargo would not be preserved for the receivers. Although the injunction
order gave leave to issue and serve the notice on Mr. P., Mr. Hofmeyr had
made it clear to Mr. Justice Tuckey that Mr. P. was domiciled in Greece,
and that the claimants looked for jurisdiction, without the need for leave,
within the Brussels Convention, and in particular within art. 6(2) covering
third party proceedings. Mr. Hofmeyr recognized that Mr. P. could not be
joined directly as a defendant either by Ca. in Folio 248 or by Gl. in Folio
273 under art. 6(1) because none of the other defendants were domiciled
in England.
Mr. Hofmeyr gave an undertaking that an affidavit would be made in
support of the application, and this was sworn by Mr. Benjamin Edward
Knowles on May 12, 1998. It annexed a draft fourth party notice in
the form which was issued that same day. Mr. Knowles submitted that
jurisdiction could be obtained without leave against Mr. P. under art. 6(2)
and that leave should be granted to issue and serve against B. on the
ground that it was a necessary or proper party within O. 11, r. 1(1)(c).
On May 20, 1998 Mr. P. and B. served an acknowledgment of service. This
of course did not amount to a submission to the jurisdiction provided that
they challenged jurisdiction by issuing a summons under O. 12, r. 8 within
the time allowed for doing so. This they did, by virtue of their summons,
much delayed as it was, dated Apr. 1, 1999, since Gl. had not yet served
its points of claim in the fourth party proceedings and therefore "the time
limited for service of a defence" had not yet expired.
On Oct. 21, 1998 Messrs. Holmes Hardingham, the solicitors for St.,
Mr. P. and B. (and Od. Shipping Ltd. ("Od."), the sixth defendant in
Folio 248 and another shipowner within the Dy. management) initiated
a correspondence in which a request was made, pursuant to the
receivership order, for inspection of documents produced by the parties
to the receivers. At that stage the request did not make clear on whose
behalf that request was made, but in their letter to the receivers' solicitors
dated Oct. 26, 1998 Holmes Hardingham explained that St. and Od. were
entitled, as parties to the proceedings, under par. 10 of the receivership
order, to obtain inspection of all documents obtained by the receivers;
that, as I had ruled in my judgment on Oct. 20, 1998, the documents
to be provided to the receivers were intended to cover substantive
issues; and that denial of the inspection requested would mean that "our
clients should be left to prepare their defences blind". They threatened
to take out a summons. On Nov. 5 the receivers issued their contempt
proceedings against Mr. P. and B.. On Nov. 26 Holmes Hardingham wrote
again to the receivers' solicitors. They referred to "our clients" which on
this occasion clearly referred also to Mr. P.: they explained that -
...All the claims against our clients are based on the proposition that
the cargoes in question belonged to Gl.. Their title goes to whether they
have any cause of action at all against our clients, and also whether any
injunction should have been granted against them. This in turn is relevant
to the Notice of Motion to commit Mr. P. for alleged contempt of court,
since the documents may reveal that there was no right to the injunction.
It is wholly inappropriate that Mr. P. should be hampered in his defence of
the contempt proceedings by the Receivers' refusal to allow him copies of
documents which have in any event already been sighted on his behalf.
That last remark makes clear that the facility for inspection already
granted to Holmes Hardingham had been requested and taken at least on
behalf of Mr. P. and probably B. as well.
On Dec. 1, 1998 Holmes Hardingham issued their threatened summons. It
was made on the part of Mr. P., B., St. and Od., as parties to the Folio 248
proceedings, and was for inspection and copies of documents provided to
the receivers pursuant to the receivership order.
On Jan. 25, 1999 Mr. Kenneth Scott swore his ninth affidavit, in support
of that application. He submitted that the shipowning parties, including
St. and Od., must in fairness be able to use the documents relating to title
to defend the claims against them; and that such documents are also of
great relevance to the contempt proceedings against Mr. P.. He continued
-
The Fourth Party Notice issued and served by Gl. on Mr. P. and B.
Services...reveals that the claim against those parties is for delivery
up and wrongful interference with Gl.'s oil. If Gl. are not the owners of
the oil loaded on board the "CHERRY" under the bills of lading dated
25th January 1998..., then the conversion claim fails. It follows that the
injunction referred to in paragraph 11 of the notice of motion, should not
have been made. This would be very pertinent to mitigation...
I would regard those explanations as saying that the applicants all wished
to look at the documents relating to title for the purpose of defeating the
claims against them on the substantive issues in the case, or on what
might be called the merits.
Up to this time there had not been the slightest suggestion that Mr. P. or
B. wished to make any reservations as to jurisdiction.
On Feb. 9, 1999 Mr. Justice Mance gave judgment on the Holmes
Hardingham clients' application for discovery. He acceded to their
application, but only on condition that they complied with various orders
made against them, inter alia orders against Mr. P. and B. for disclosure
of documents relating to the Cherry cargo, its whereabouts and its
sale proceeds. Mr. Justice Mance's order is dated Feb. 17, 1999. It
appears from his judgment that something was said by Mr. Gee for the
first time about a possible challenge "on jurisdictional and substantive
grounds" (see CMB2 at p. 149, see also p. 152). It was nearly another
two months before the O. 12, r. 8 application was made. The only
examples given by Mr. Justice Mance as to the foreshadowed challenge
strike me as being of a substantive nature (apart from the procedural
point of non-disclosure, a point raised in the summons before me, but not
pursued in argument).
Following judgment, there was argument regarding costs. Mr. Gee asked
for costs to be in the cause. Mr. Justice Mance asked: "What is the cause?
The whole action?" Mr. Gee replied:
The cause would be the actual merits in the proceedings which are
brought against Mr. P. and B., and indeed St.. So, as it were, there is the
cause in the whole action so it is the resolution of the underlying merits.
This passage reinforces my impression that the reservation made by Mr.
Gee in argument was essentially as to issues which, however referred to,
went essentially to the merits rather than jurisdiction. Be that as it may, I
will assume that at any rate as of Feb. 9, 1999, at the time of appearing
before Mr. Justice Mance, a proper reservation in relation to jurisdiction
was made. That still leaves open, however, the question whether the issue
of the discovery application was itself a submission to the jurisdiction. Mr.
Schaff submits that, as foreshadowed in the preceding correspondence
and explained in Mr. Scott's affidavit, it was.
Mr. Gee, on the other hand, submits that the discovery application was
equivocal, at any rate so far as Mr. P. and B. were concerned, since the
discovery may have been sought as much for the purpose of challenging
jurisdiction as for the purpose of joining issue on the merits. He relies
for these purposes on the need for a submission to be a clear and
unequivocal acceptance that there will be a trial on the merits. He relies
on Esal (Commodities) Ltd. v. Mahendra Pujara, [1989] 2 Lloyd's Rep. 479
and Kurz v. Stella Musical Veranstaltungs G.m.b.H., [1992] Ch. 196.
For these purposes the Brussels Convention test, which concerns Mr. P., is
to be found in art. 18...
So far as B. is concerned, the test is that to be found in the English
common law. Mr. Gee did not submit that the Convention test gave more
protection than the common law test: on the contrary, he submitted that
they were the same.
The leading case on art. 18 in the European Court of Justice is Elefanten
Schuh G.m.b.H. v. Pierre Jacqmain, (Case 150/80) [1981] E.C.R. 1671.
There the Court had to decide whether a defendant who had not only
contested jurisdiction but had also made submissions on the merits (as
is sometimes required in civil law countries, when the jurisdictional point
cannot be taken out front and by itself) had entered an appearance
within the meaning of art. 18. The Court held that merely combining
submissions on the merits with a challenge to the jurisdiction did not
amount to an appearance: as long as the challenge to the jurisdiction did
not follow the substantive defence. The Court said (at pp. 1685-1686):
15. However, the challenge to jurisdiction may have the result attributed
to it by Article 18 only if the plaintiff and the court seised of the matter
are able to ascertain from the time of the defendant's first defence that it
is intended to contest the jurisdiction of the court.
16....However, it follows from the aim of Article 18 that if the challenge to
jurisdiction is not preliminary to any defence as to the substance it may
not in any event occur after the making of the submissions which under
national procedural law are considered to be the first defence addressed
to the court seised.
That decision, as far as it goes, does not assist Mr. Gee, for in this case
the challenge to the jurisdiction came (at earliest on Feb. 9, 1999) after
the fourth parties' summons of Dec. 1, 1998. So the question remains
whether that amounts to an acceptance of the Court's jurisdiction.
In Kurz v. Stella Musical Mr. Justice Hoffmann held that a request for
discovery of documents referred to in the statement of claim was entirely
consistent with a challenge to the jurisdiction:
...The question of jurisdiction may depend entirely on the terms of such
documents, such as the place of performance fixed by a pleaded contract
(at pp. 201H-202A).
It was conceded that a mere request for an extension of the time
limited for service of a defence was not a waiver, since it did not of itself
indicate that a defendant did not intend within that time to issue his
O. 12, r. 8 summons. Similarly, a letter which simply left the plaintiff
uncertain whether or not the defendant would plead a defence or contest
jurisdiction could not amount to a representation that the defendant was
abandoning his option to do the latter (at p. 202).
I do not think that any of this is in the least controversial. However,
other decisions in the Court of Appeal indicate that the relevant test is
one which has to be decided on all the circumstances of the case. The
fact that Stella Musical did not waive its right to challenge jurisdiction
by asking for a few documents mentioned in the statement of claim,
consistently with a challenge to the jurisdiction, does not tell us much
about other situations.
In The Messiniaki Tolmi, [1984] 1 Lloyd's Rep. 266, on the other hand,
the Court of Appeal held that a summons to strike out part of the claim
indorsed on the writ on the ground that it disclosed no cause of action
was a submission to the jurisdiction...
Applying these principles, it is plain to us that the appellant in the present
case did indeed submit voluntarily to the jurisdiction. We need not decide
whether his application for a stay was alone sufficient for this purpose;
for his application for an order striking out par. 4 of the claim indorsed
on the writ puts the matter beyond doubt. For if he had been successful
in that application the Court would have decided that issue in his favour
and against the respondents. The Court's decision on the point would
then have created an issue estoppel against the respondents, which the
appellant could have invoked to prevent the respondents pursuing such a
claim in the Courts of this country, and possibly also in Courts overseas.
Plainly, therefore, by making his application for an order striking out par.
4, the appellant was voluntarily submitting to the jurisdiction of the Court.
In these circumstances, it was in any event not open for the appellant
thereafter to dispute the jurisdiction of the Court. The procedure which
falls within O. 12, r. 8(1), cannot be open to a litigant who has already
submitted to the jurisdiction.
It seems to me that that conclusion is directly applicable to the present
case, where Mr. P. and B. wished to obtain discovery, not of a small
number of documents mentioned in a statement of claim but, of all the
documents relevant to the substantive issue of title so that they could
advance a case that there was no cause of action against them and defeat
the proceedings against them on the merits, as well as provide mitigation
to Mr. P. in connection with the contempt motion.
In Esal v. Pujara the Court of Appeal, adopting the well known tests found
in Rein v. Stein, (1892) 66 L.T. 469 at p. 471 ("some step which is only
necessary or only useful if the objection had been actually waived") or in
Fry v. Moore, (1889) 23 Q.B.D. 395 at p. 399 ("so inconsistent with the
notion that no action was in existence as to amount to a waiver of the
irregularity of the procedure") held that the consent to an extension of
an ex parte injunction until after judgment in the action amounted to a
waiver (at p. 483). Lord Justice Slade, with whose judgment Lord Justice
Lloyd and Lord Justice Ralph Gibson agreed, emphasized the relevance
and importance in such a situation of the absence of any reservation, at p.
483:
Against that background the defendant did not take any of the alternative
courses which, in my view, he might reasonably have been expected to
take if he had intended to apply for an order setting aside the service
of the writ. His Counsel did not ask for the motion to be adjourned until
a specified date or to be heard as a motion by order or pending the
hearing of an application by him under O. 12, r. 8. He did not ask that the
consent order should contain a provision expressly giving him the right
to make such an application. He did not expressly reserve the right to
make a challenge of this nature. He did not even tell the Judge that such
a challenge was under contemplation.
Moreover, the fact that there is still an unexpired period available under O.
12, r. 8 to issue a challenge to jurisdiction by summons is beside the point
where a waiver has already taken place.
It seems to me that the facts of The Messiniaki Tolmi and of Esal v. Pujura
are much closer to those of this case than the facts in Kurz v. Stella. Mr.
P. and B., by issuing their summons in the circumstances in which they
did, were invoking the jurisdiction of this Court; they were doing so as
parties to the litigation and as beneficiaries therefore of the receivership
order; they were doing so without any reservation as to any challenge to
the jurisdiction; and they were doing so, as was explained on their behalf,
in order to investigate the substantive issue of title and seek thereby to
defeat the claims against them. In my judgment, their summons was not
merely useful and appropriate only on the basis that they had waived
challenge to the jurisdiction, but in itself amounted to an acceptance
of that jurisdiction. It was utterly inconsistent with the theory that no
action against them was in existence. A fortiori in the context of the
contempt proceedings against Mr. P., any disinterested observer would
have considered that any challenge to the jurisdiction would have been
reserved at the earliest possible date.
I note in this connection the caution which Briggs, Civil Jurisdiction and
Judgments, 2nd ed., 1997, at par. 5.16 counsels to a defendant who
wishes to avoid jurisdiction under art. 18.
It follows that Mr. P.'s and B.'s challenge to the jurisdiction fails on the
ground that each has submitted to the jurisdiction of this Court.
I will nevertheless go on to consider the objections raised in their O. 12,
r. 8 summons on the hypothesis that I am wrong so far, and that neither
of them has submitted to the jurisdiction. I shall do so under the following
topic headings, which it seems to me represent the critical matters relied
upon by Mr. Gee:
(i) the fourth party claims are not within O. 16, r. 1(1) and r. 9 as a
matter of jurisdiction;
(ii) the Ca. claim against Ta. and Ta.' third party claim against the third
parties were respectively bad or dead, and could not therefore properly
support the fourth party notice;
(iii) the fourth party claims disclose no reasonable cause of action;
(iv) the fourth party notice should be set aside as a matter of discretion;
(v) for all or some of these reasons, the fourth party notice was not
properly within art. 6(2) or R.S.C., O. 11.
Order 16, r. 1(1) and r. 9
Mr. Gee submitted that the claims advanced in the fourth party notice
were not within the jurisdiction for third (and subsequent) party claims
authorized by O. 16, r. 1(1) and r. 9. In such a case, the fourth party
notice should be discharged, and could not support jurisdiction within art.
6(2) or R.S.C., O. 11.
For these purposes it is necessary to set out both Ta.' third party notice
and Gl.'s fourth party notice.
The third party notice provides as follows:
Take notice that this action has been brought by the Plaintiff against the
Third Defendant. In it the Plaintiff claims against the Third Defendant
delivery up to [sic] 52,338 mt of 380 CST HS fuel oil on board the Third
Defendant's vessel "NAFKRATIS", as appears from the Writ of Summons,
a copy whereof is served herewith and the draft affidavit of Stephen B
Williams, a copy of which is also served herewith.
1. The Third Defendant requires that the following questions or issues be
determined not only as between the Plaintiff and the Third Defendants,
but also between either or both of them and each Third Party including
yourself namely: whether the Plaintiff or you is the owner and/or the
person entitled to possession and/or the person entitled to any order for
delivery up of the said fuel oil and further
2. The Third Defendant claims the following relief or remedy against each
Third Party including yourself, namely:
i. interpleader relief
ii. payment of the Third Defendants' costs and/or charges of taking care
of and/or preserving and/or otherwise dealing with the fuel oil in relation
to which it is determined you are the owner and/or the person entitled to
possession and/or the person entitled to an order for delivery up.
That notice was addressed on Feb. 24, 1998 to Gl., Mo., Te. and MTI (and
another oil claimant) and by amendment on Apr. 16, 1998, i.e. still before
the issue of the fourth party notice, to Mr. Grigoriades and the receivers.
The fourth party notice provides as follows:
TAKE NOTICE that this action has been brought by the Plaintiff ("Ca.")
against, inter alios, the First Defendant, Metro Trading International Inc,
and the Second, Third, Fourth and Fifth Defendants, and the owners of
the vessels, "METROTANK", "NAFKRATIS", "SEA GIANT" and "CHERRY",
respectively. In it Ca. claims against each of the Defendants delivery up of
a quantity of oil or oil products which Ca. asserts is on board the vessels
and in which Ca. asserts title, as appears from the Writ of Summons, a
copy of which is served herewith.
AND TAKE NOTICE FURTHER that the Third Defendant, the owner of the
"NAFKRATIS" has brought Third Party Proceedings against, inter alios,
the First Third Party, ("Gl."). In it the Third Defendant requires that a
question or issue, (namely, whether Ca. or Gl. is the owner and/or person
entitled to possession and/or any order for delivery up of the oil or oil
products), be determined between, inter alios, the Third Defendant and
Gl., as appears from the Re-Amended Third Party Notice, a copy of which
is served herewith.
AND TAKE NOTICE FURTHER THAT, by the order of Tuckey J dated 3rd
March 1998, it has been ordered that the following actions be tried
concurrently pursuant to RSC Order 4, rule 9, 1998 Folio No. 248, 1998
Folio No. 273, 1998 Folio No. 219, 1998 Folio 230, 1998 Folio 259, 1998
Folio 260 and 1998 Folio 261.
AND TAKE NOTICE FURTHER that Gl. has brought proceedings against,
inter alios, Metro Trading International Inc., Mo. Export Corporation
and the owners of the vessels "METROTANK," "SEA GIANT," "ATHENIAN
SPLENDOUR" and "CHERRY" (the reference to the record of which
proceedings is 1998 Folio 273) in which questions or issues, namely which
party is the owner and/or person entitled to possession and/or any order
for delivery up of the oil or oil products on board each of the said vessels,
will be determined between each of the parties to the actions ordered to
be tried concurrently. A copy of the Writ of Summons in 1998 Folio No.
273 is served herewith.
NOW Gl. claims against both of you:
(1) The delivery up of the oil or oil products now on board the "CHERRY,"
alternatively the value thereof, and damages consequent upon your
wrongful interference with the oil or oil products on and after 28th April
1998 by
(1) bidding for and/or offering to purchase the oil or oil products; and/or
(2) agreeing to purchase the oil or oil products; and/or
(3) purporting to purchase the oil or oil products; and/or
(4) paying for, alternatively arranging to pay for, the oil or oil products;
and/or
(5) taking delivery and/or possession of the oil or oil products; and/or
(6) otherwise wrongfully interfering with the oil or oil products.
(2) The delivery up of the oil or oil products and damages as aforesaid;
and
(3) An injunction restraining you from purchasing or agreeing to purchase
or in any way taking delivery or possession of or disposing of any of the
oil or oil products on board the vessel "CHERRY"; and
(4) An injunction restraining you from interfering with the delivery up of
the said oil or oil products to or to the order of the Receivers appointed
pursuant to the order of Tuckey J dated 3rd March 1998 (as amended);
and
(5) Interest pursuant to Section 35 of the Supreme Court Act 1981; and
(6) CostsFurther or alternatively, Gl. requires that the following questions
or issues, namely, whether Ca., or any of the Third Parties or you is
(1) the owner of the said fuel oil or oil products and/or
(2) the person entitled to possession of the said fuel oil or oil products
and/or
(3) the person entitled to any order for delivery up of the said fuel oil or
oil products,
should be determined not only as between Ca., Ta. and each of the Third
Parties, but also between each or all of them and you, the Second and
Third Fourth Parties.
It will be immediately apparent that, as has previously been remarked in
earlier judgments of the Court, both third party and fourth party claims
are in the nature of interpleaders; and also that where the third party
notice is concerned with title to the oil on Nafkratis, the fourth party
notice is concerned with title to, as well as delivery up of and alleged
wrongful interference with, the oil on Cherry. It has not been suggested
before me that these are other than entirely separate parcels of oil, which
do not share a common source.
R.S.C., O. 16, r. 1(1) provides as follows:
1.(1) Where in any action a defendant who has given notice of intention
to defend -
(a) claims against a person not already a party to the action any
contribution or indemnity; or
(b) claims against such a person any relief or remedy relating to or
connected with the original subject-matter of the action and substantially
the same as some relief or remedy claimed by the plaintiff; or
(c) requires that any question or issue relating to or connected with the
original subject-matter of the action should be determined not only as
between the plaintiff and the defendant but also as between either or both
of them and a person not already a party to the action;
then, subject to paragraph (2), the defendant may issue a notice in
Form No. 20 or 21 in Appendix A, whichever is appropriate (in this Order
referred to as a third party notice), containing a statement of the nature
of the claim made against him and, as the case may be, either of the
nature and grounds of the claim made by him or of the question or issue
required to be determined.
Order 16, r. 1 is applied to fourth party claims by r. 9, which for
such purposes treats a third party as a defendant and contains a
mutatis mutandis principle of application ("and any other necessary
modifications").
Mr. Gee's first point is that Gl.'s fourth party notice is not within r. 1(1)(a),
since there is no fourth party claim for any contribution or indemnity. That
is not in dispute, and I so find.
Mr. Gee next submits that Gl.'s fourth party notice does not contain any
claim for relief or remedy within r. (1)(1)(b), since nothing in the fourth
party notice relates to or is connected with "the original subject-matter of
the action", viz. the Nafkratis cargo, nor is the relief or remedy claimed in
the fourth party notice "substantially the same" as any relief or remedy
claimed by Ta..
Mr. Schaff on the other hand submits that the subject-matter of the
third party notice should not be viewed so narrowly: it is not merely
the Nafkratis cargo, but also the issues of title concerning it. Those
issues were inextricably related to or connected with the issues of title
concerning another parcel of oil such as the Cherry cargo. Whether that
is so or not, and if it is so it is really treating r. 1(1)(b) as though it was
covering the same ground as r. 1(1)(c), it seems to me that Mr. Schaff
has no adequate answer to the fact that the tortious claims against Mr. P.
and B. in the fourth party notice are nowhere replicated in the third party
notice, and that such claims for relief or remedy are not substantially the
same as any relief or remedy claimed by Ta.. Indeed, Ta. makes no claim
in its third party notice other than is consistent with what is in the nature
of interpleader relief: it wishes to be freed from accountability, it lays no
claim to the Nafkratis parcel itself, it merely wishes to have the proper
title holder judicially identified for its own protection.
Mr. Schaff submitted in the alternative that "the original subject-matter of
the action" referred to the subject-matter of the original action brought
by Ca.: and on that basis renewed his submission that the claims in tort
brought by Gl. were within r. 1(1)(b). I do not believe, however, that this
is an acceptable construction of the rule. Where a fourth party notice is
concerned, the "action" in r. 1 must refer to the third party action, and
"plaintiff" and "defendant" refer to the defendant/third party claimant and
third party respectively.
Mr. Gee thirdly submitted that the question or issue raised at the end of
Gl.'s fourth party notice ("Further or alternatively, Gl. requires that the
following questions or issues, namely..." etc.) was not within r. 1(1)(c)
because it did not relate to nor was it connected with the original subject-
mater of the action, viz. the Nafkratis cargo.
It is at this point that I agree with Mr. Schaff that the question of title
to the Cherry cargo was something "relating to or connected with" the
original subject-matter of the third party notice. Whether that original
subject-matter be viewed as the Nafkratis cargo itself or more widely as
the issue of title regarding that parcel, and I would accept myself that it
extended to the latter, the words "relating to or connected with" are very
wide words and would in my judgment embrace the question or issue
raised in the fourth party notice. Although detailed tracing of individual
parcels will form a part of the process of adjudication with respect to
any single cargo, by far the greater investigation and analysis which will
have to be undertaken with respect to any parcel of oil within the Metro
litigation will be essentially common to all the oil (or its proceeds) in
dispute.
Mr. Schaff next submitted that if any part of the fourth party notice
was within r. 1, then that could support additional claims which were
not themselves within r. 1. He pointed out that the Court always has a
discretion within r. 4 to require any unsuitable additional claim to be tried
separately. In my judgment, however, that submission is wrong. I would
regard r. 1(1) as intended to set out an exclusive code as to what may be
included in a third or subsequent party notice. If the third party claimant
has additional claims, then he can always bring them by separate action,
and if they are suitable to be tried together with the third party claim,
then that can be ordered. Prima facie, however, it is only claims or issues
within r. 1(1) that have the statutorily defined connection with the original
action to justify third party procedure. Otherwise, r. 1(1) would have
gone on to contain a sub-r. (d) to the effect that "any other claim or issue
relating to or connected with any claim or issue within (a), (b) or (c)
above" could also be included in the third party notice.
That is not to say, however, that relief which is ancillary or incidental to
any claim or issue properly within r. 1(1) cannot be sought within a third
party notice. Thus it seems to me that injunctive relief ancillary to a claim
or issue of title could be sought. Similarly it seems to me that delivery up
of the oil whose title is in question could also be sought. Indeed, it might
even be said that the claim for delivery up is substantially the same as
the interpleader relief sought by Ta., since that relief would require Ta. to
surrender up the cargo, as it did.
It follows that in my judgment the claims to damages in tort for wrongful
interference contained in pars. (1) and (2) of the fourth party notice could
not (but for the submission to the jurisdiction) stand, but that the claim to
delivery up of the oil, the claims for injunctions, and the question or issue
stated are properly within O. 16, r. 1(1).
It would also follow that, but for the submission to the jurisdiction,
the tortious claims would not be within art. 6(2) or O. 11. Article 6(2)
requires that there be a proper connection between claim and third party
claim such as would be recognized by England's own third party statute
contained in O. 16: see Kongress Agentur Hagen G.m.b.H. v. Zeehage
B.V., (Case C-365/88) [1990] E.C.R. 1845 and Kinnear v. Falconfilms N.V.,
[1996] 1 W.L.R. 920.
Are the Ca. claim against Ta. and Ta.' third party claim against Gl. bad or
dead?
Mr. Gee submits that a consideration of Ca.'s bullet points of claim in Folio
248 and of Gl.'s much fuller analysis of the cargo dispositions contained in
its full points of claim in Folio 273 shows that Ca. never had a good claim
to title to the Nafkratis cargo, and that therefore the third and fourth
party claims fail with the failure of the original claim against Ta.. He also
submits that with the delivery up by Ta. of the Nafkratis cargo to the
receivers, which had occurred in I think late April and in any event before
May 12, 1998 and the issue on that day of the fourth party notices, the
third party action had become a dead letter, and therefore could no longer
support the fourth party action. In this connection he relies on (i) a letter
written on behalf of Ca. dated May 28, 1999 informing Ta. that, subject
to anything that might subsequently appear from complete discovery,
no positive claim is being pursued against it; and (ii) a fax dated July 8,
1999 from Ta.' solicitors stating that it has neither proprietary claims nor
derivative claims, save for its costs, and that its interpleader proceedings
should either be taken over by some other party or discontinued.
In my judgment, however, these submissions do not advance Mr. Gee's
attack on the jurisdiction of this Court. Whether it is a good claim or bad,
Ca.'s claim to title in the Nafkratis cargo raises a reasonable cause of
action, and if Mr. Gee wishes to say that it is nevertheless doomed to fail
on the facts, that is an issue which seems to me to be irrelevant to the
jurisdictional status of the fourth party claim, even if it might possibly be
relevant to a question of discretion. I am not persuaded, in this highly
complex litigation, that Ca.'s claim is doomed on the facts, and I am
reluctant to entertain that issue in any event in the absence of Ca.. I will
assume for the sake of argument, however, that it has now emerged that
it is a wholly mistaken claim.
As for the third party claim by Ta., although it is now clear, and I will
assume could have been sufficiently inferred ever since the delivery up
of the Nafkratis cargo, that Ta. will not be involved in the prosecution
of its third party claim: nevertheless, that is not in any way to say that
it is dead. In the first place, the issue which it has raised between the
various oil claimants is still very much alive. Secondly, Ca. has reserved
its position pending complete discovery. Thirdly, Ta. is the beneficiary of
an undertaking from the receivers to indemnify it in case its delivery of
the cargo to the receivers renders it liable to a so far unknown claimant.
These second and third matters are perhaps highly contingent and
speculative. But the first matter is central to the litigation.
It seems to me that such submissions do not affect the Court's jurisdiction
under O. 16 to give leave for the fourth party notice to the extent which
I have indicated above. If it is a matter of discretion, it seems to me that
the issues of title raised by the third and fourth party notices are both
very much alive and need to be determined.
Do the fourth party claims disclose a reasonable cause of action?
…It is common ground that the fourth party notice is confined, so far as
its tortious claims are concerned, to a period between Apr. 28, 1998 and
the date of its issue.
Mr. Schaff would accept that the tortious claims within par. 1(1)/(4) of
the fourth party notice are invalidated by Greek law, but he concedes
nothing further. He submits that Greek law is not relevant to the question
of title in a cargo which at all relevant times has been in the Far East,
somewhere off the coast of China so far as is known. If the Greek Court's
judgment that title belonged to Metro and was transferred by sale to B.
had to be recognized in England, the position might be different, but that
Court's judgment was not entitled to recognition under the provisions of
the Brussels Convention (and was under appeal). The only way that Mr. P.
and B. could invalidate Gl.'s claim to title was by reference to the Greek
Court approved sale, but that depended on the question whether the
judgment would be granted recognition in England. As for the proper law
of the tortious claim for wrongful interference by taking possession of the
cargo or otherwise wrongfully interfering with it by failing to deliver it up
to the receivers, there was a serious question that, given the significance
of English law as the proper law of the underlying transactions and of
the presence of the cargo on board a vessel (for all that was known) on
the high seas, the applicable law was not Greek law but English law: see
the Private International Law (Miscellaneous Provisions) Act, 1995 at ss.
11(2)(c) and/or 12….
It is clear that there is a clash of jurisdiction in the matter of the Cherry
cargo: both the English Court and the Greek Court have purported
to have made orders in respect of it. The English orders were first in
time, but at a time when Mr. P. and B. were not parties to the English
proceedings. On some occasion this clash will have to be resolved. It
cannot be resolved in the course of this application. There were no
submissions under arts. 21 or 22 of the Brussels Convention, and any
issues raised under arts. 26/27 could not be resolved by me on this
occasion, and there was no attempt by Mr. Gee to say that they could
be. In such circumstances, it seems to me to be impossible to say that I
should set aside the whole of the fourth party notice, either as a matter of
jurisdiction or as a matter of discretion. Subject to the resolution of this
clash of jurisdiction, I do not see why the English Court should not quite
properly seek to aid the orders that it had already made with respect
to St. and the Cherry cargo in the receivership order by making the
protective orders it made under the injunction order.
Discretion
Under this heading I confine myself to questions of discretion under O.
16, rather than aspects which may relate to the international dimension of
art. 6(2) or O. 11.
It seems to me that, if there is jurisdiction within O. 16 to give leave to
issue the fourth party notice or any part of it, the facts and considerations
which I have set out above militate strongly in favour of exercising a
discretion in favour of leave. The issue as to title in the Cherry cargo has
been in issue in Folio 248 and the Metro litigation as a whole since the
outset in February and March, 1998. The receivership order has been the
cornerstone of that litigation. St. has failed to comply with that order.
The English Court is entitled to seek to support its own orders. It is right
and appropriate that all claimants to the Cherry cargo should litigate the
question of title in a Court which is concerned with that overall question in
respect of the missing and surviving oil as a whole. The question of title of
any particular parcel cannot appropriately be dealt with piecemeal, absent
the overall picture. …
In my judgment, however, this point fails. Even if it be the case that
interpleader relief should properly be raised under O. 17, it does not
seem to me to follow that it is impermissible to raise an issue as to title
analogous to what occurs in interpleader relief by way of third party
notice. It may be that one consequence of such a procedure is that
the claimant lacks the advantages of the O. 17 procedure. But I do not
think that the form should take mastery over the substance, unless that
is made inevitable by statute, and I do not see that that is the case.
Certainly none of the Judges, including Lord Justice Hobhouse, who have
had dealings with this litigation, has seen anything impermissible or
inappropriate in the raising of issues of title by means of a third party
notice brought against claimants to the oil in question. If a third party
notice can be used, it seems to me that a fourth party procedure can be
used as well, provided that, as I have had to consider above, the matters
raised are within O. 16, r. 1. If the result is the raising of an inappropriate
claim or issue, then the Court can in its discretion set it aside, as the
Court did in Eschger v. Morrison. In any event, the fact that the third
party notice was irregular does not in my judgment invalidate the fourth
party notice as a matter of jurisdiction.
In the end it is all a matter of discretion: see also in this context Gerhard
v. Montagu & Co., (1889) 61 L.T. 564 and Percy Attenborough v. The
London and St Katherine's Dock Co., (1878) 3 C.P.D. 450. As a matter of
discretion, I do not see in this further submission of Mr. Gee a ground on
which I would depart from the view as to discretion which I have already
expressed above.
The international dimension: art. 6(2) and O. 11
The need to obtain jurisdiction over parties domiciled outside England
potentially raises additional questions of jurisdiction and discretion which
have to be resolved under art. 6(2) in the case of Mr. P. and O. 11 in the
case of B..
Article 6(2) provides as follows:
A person domiciled in a Contracting State may also be sued -
...
2. As a third party in an action on a warranty or guarantee or in any other
third party proceedings, in the court seised of the original proceedings,
unless these were instituted solely with the object of removing him from
the jurisdiction of the court which would be competent in his case.
Mr. Gee submitted that the fact that the third party action was already
effectively dead as of May 12, 1998 should take the fourth party
claim outside art. 6(2), relying on Waterford Wedgwood Plc v. David
Nagli Ltd., [1998] C.L.C. 1011. But I have found that the third party
claim was not, and is not dead. Mr. Gee also at one time submitted, in
reliance on principle (6) at p. 1016 of the authority just cited, that there
was a residual discretion under art. 6(2) to decline jurisdiction under
that article: but ultimately he resiled, in my view correctly, from that
submission, and contented himself with the submission that the discretion
concerned was that under O. 16, but that in considering that discretion
the Court should bear in mind the international dimension, the fact that
art. 6(2) is an exceptional jurisdiction, and that the purpose behind that
exception was the need for a connection between main action and third
party claim such as to make it appropriate to hear the two together.
It seems to me that at times Mr. Gee was close to asking me to exercise
a forum non conveniens discretion in relation to art. 6(2). If so, I do not
think that is permissible. But even if, for the purpose of my discretion
under O. 16, I bear in mind that the fourth party claim, even after
the concession of Mr. Schaff in relation to par. 1(1)/(4) of it, will in all
probability involve questions of Greek law in the context of the Greek
bankruptcy proceedings and the impeachment of Greek parties, I
remain of the view expressed above that, as a matter of discretion, the
fourth party claim, limited as it would have to be by my judgment, was
appropriately made.
As for B. and O. 11, I see no difficulty in the light of my judgment above
in viewing B. as a necessary or proper party: I do not think it matters
whether it is viewed as a proper party to the claim against Mr. P. or as
a proper party to the claim against Gl. made by the third party notice.
It is true that in this connection Mr. Knowles' affidavit of May 12, 1998
was in a certain disarray, but I do not think that that affects the matter
materially.
The injunctions
Finally, and in any event, Mr. Gee asked for the discharge of the
injunctions made by Mr. Justice Tuckey under his two orders of May 12,
1998. Given the submission to the jurisdiction, that request must in
principle fail, save that I need also to take into account that Mr. Schaff
has conceded that he cannot maintain that Gl. has a good cause of action
for a claim in tort in so far as the tortious acts complained of amount
to participation in the Court approved sale in Greece (par. 1(1)/(4) of
the fourth party notice). However, Mr. Schaff did not concede that in
consequence the injunctions contained in the injunction order in relation
to that sale should never have been made or should now be discharged.
On the contrary, he submitted that the English Court had jurisdiction to
grant those injunctions in defence and support of its orders to protect
and preserve the availability of the Cherry cargo to the receivers and
ultimately the oil claimant or claimants entitled to it: see TSB Bank
International S.A. v. Chabra, [1992] 1 W.L.R. 231. Mr. Gee on the other
hand submits that the English Court ought not in principle to grant an
injunction to prevent a person doing that which would be lawful in the
country in which the act would be performed and which it is conceded
could give rise to no tortious claim in England.
What is at issue is that part of the injunction order concerned with the
Greek sale, namely pars. 1(1) and 2(1) and also the opening words of
pars. 1(2) and 2(2) – "must not purchase, agree to purchase, pay for".
I suspect that this argument may be academic in this sense, that by
the time Mr. Justice Tuckey made these orders, the relevant acts had
already been committed. However, issue was not joined on that question
and I do not think that I have the evidence before me to adjudicate on
it and I have not been asked to. I also suspect that the real bone of
contention in this connection is Mr. Gee's desire to enter the contempt
of Court proceedings in a position to say that those injunctions had been
discharged and, better still, should never have been made.
Be that as it may, I need to resolve the conflicting submissions which are
before me. It seems to me that Mr. Schaff is right about this. In TSB v.
Chabra Mr. Justice Mummery decided that although an injunction could
not be granted in favour of a plaintiff who had no good cause of action
against anyone, he could grant it against a second defendant against
whom there was no cause of action in support of the plaintiff's cause of
action against another defendant. The Court of Appeal approved of that
decision in Mercantile Group (Europe) A.G. v. Aiyela, [1994] Q.B. 366. It
seems to me therefore that Mr. Justice Tuckey had jurisdiction to grant the
injunctions which are now in dispute, despite the absence of any relevant
cause of action against Mr. P. and B., because the Court otherwise has
jurisdiction against them, Gl. has a good cause of action asserting title
and delivery up of the Cherry cargo, and the Court is entitled to grant
injunctions ancillary to and supportive of that cause of action, and indeed
to support the orders previously made by the Court.
It follows that even in the absence of the submission to the jurisdiction
the injunctions were properly granted and should be maintained. The
Mareva order would also be sustainable, even in the absence of a personal
claim in tort, in light of the claim for delivery up of the cargo.
Conclusion
In sum, the jurisdictional challenge raised by Mr. P. and B. fails. Buried
in that challenge, however, was a submission that the fourth party
notice disclosed no cause of action. That submission has, by concession,
succeeded to the extent of par. 1(1)/(4) of the notice. Therefore, to that
extent Mr. Schaff has accepted before me that he is obliged to delete
the relevant paragraphs from the notice and cannot pursue them in
subsequent pleadings.