„(…) THE LORD CHIEF JUSTICE: This is the judgment of the court, to
which all members have substantially contributed.
Before the court are an appeal by the plaintiffs and a cross-appeal by the
defendants in these proceedings. Both arise out of a judgment given and
an order made by Neuberger J on 14 November 1997 on a notice of moti-
on issued by the first defendant on 23 October 1997 and an application
made by the plaintiffs. The notice of motion was given in response to a
writ issued in the Chancery Division of the High Court on 19 September
1997 and served on the first defendant, Mr F., on 7 October 1997 when he
was temporarily in London.
A number of different questions were raised and fully argued before the
judge, and again before this court. The overriding issue is whether the
plaintiffs’ proceedings against
Mr F. should be allowed to proceed in this country. An allied issue is
whether the plaintiffs should have leave under RSC Order 11 Rule 1(1)(c)
to serve the second to fifteenth defendants out of the jurisdiction.
The first plaintiff is a Greek Cypriot shipowner of immense wealth. He
holds both Cypriot and British passports. His domicile of choice is in
Monaco. He spends most of his time in Greece. He has a house in London,
but the judge found nothing in the evidence to suggest that he had spent
significant amounts of time in England during the past few years. The
second and third plaintiffs are Panamanian companies owned and control-
led by the first plaintiff and managed in Greece.
Mr F., the first defendant, is a much younger man. He is Greek by nati-
onality. He is the son of a shipowner, although not an owner of the same
scale of affluence as the first plaintiff are. Mr F. has a house in Monaco
and his personal domicile is there, but the judge concluded that his
main residence and what the judge considered his major business are
in Greece. The second and third defendants are Panamanian companies
which he controls.
The first plaintiff has a daughter C. In January 1990 she and Mr F. were
engaged to be married. On their engagement the first plaintiff gave the
couple a yacht. The marriage was solemnised in Greece in September
1990. The plaintiffs’ statement of claim in these proceedings pleads that
an agreement or understanding was made between the first plaintiff and
Mr F. at the time of this engagement. In paragraph 3 it is pleaded thus:
“In or about January 1990 Mr H. and Mr F. had several conversations in
the course of which they entered into an agreement or understanding to
the following effect:
(1) Mr H. agreed that he would (directly or through companies he
controlled) transfer sums of monies to Mr F. (or his agents) to be used for
the purpose of acquiring vessels to be run and managed as a commercial
enterprise. (The said monies or the proceeds thereof including all assets
acquired with and/or representing and/or derived from the same and all
profits made therewith, and accretions or additions thereto, are referred
to below as “the Funds”);
(2) Mr F. was to hold and manage the Funds on behalf of the Plaintiffs and
subject to the instructions of Mr H.;
(3) The Plaintiffs were to remain the beneficial owners of the Funds
(including all profits thereon and additions thereto) and Mr F. was to
account to Mr H. in respect of the Funds;
(4) It was further agreed that when a specific vessel was to be acquired
using the Funds, it would be acquired by a single ship company set up or
acquired for that purpose; and that the shares in such company would (if
registered shares) be issued or transferred into the name of Mr H., or (if
bearer shares) be delivered to or be held to the order of Mr H.;
(5) By managing the Funds, Mr F. would, for his part, be able to deve-lop
experience and gain contacts in the shipping business.”
It is not pleaded exactly when or where this agreement or understanding
was made, nor what (if any) remuneration Mr F. was to earn. No reliance
is placed in the pleading on any document evidencing or supporting it.
The pleading continues in paragraph 4:
“In the premises:
(1) any Funds transferred to Mr F. pursuant to the said agreement or
understanding were to be held by Mr F. (or his agents) on trust for the
Plaintiffs;
(2) Mr F. was under a fiduciary duty to ensure that such Funds were
applied only in accordance with the terms and conditions of the said
agreement or understanding; and
(3) Mr F. was under a duty to account to the Plaintiffs in respect of the
use and application of the Funds and in respect of all profits thereon and
additions thereto.”
In May 1990, just before Mr F.s’ 28th birthday, the second plaintiff
paid US $5,000,000 to the account of the second defendant in Piraeus.
Immedi-ately following the wedding in September 1990 the second and
third plaintiffs paid sums totalling US $10,000,000 to the account of the
second defendant in Piraeus. Over the next six months three vessels were
bought, respectively by the fourth, fifth and sixth defendants, each of
them Pana-manian companies controlled by Mr F.. Within a week of Mr F.’s
29th birthday in May 1991, the second plaintiff paid US $5,000,000 into
the account of the second defendant in Piraeus. Six months later another
vessel was bought, this time by the seventh defendant, a Panamanian
company controlled by Mr F.. On Mr F.s’ name day in January 1992,
the second plaintiff made two payments, amounting in total to over US
$5,000,000, to the account of the third defendant in London. During the
next four months vessels were acquired by the eighth and ninth defen-
dants, both of them Panamanian companies controlled by Mr F. One of
these vessels was a yacht, bought to replace the yacht given by the first
plaintiff to Mr F. and C. on their engagement. Just over a week after Mr
F.s’ second wedding anniversary, the second plaintiff paid US $10,000,000
to the account of the third defendant in London. Further vessels were then
bought by the tenth defendant, a Liberian company, and the eleventh
defendant, a Panamanian company, both companies control-led by Mr
F.. Within a month of Mr F.s’ 31st birthday in May 1993, the second
plaintiff paid US $10,000,000 to the account of the third defendant in
London. Further vessels were then bought by the twelfth, thirteenth and
fourteenth defendants, the first two being Panamanian companies control-
led by Mr F., the last a Liberian company controlled by him. Finally, in April
1994, a new build, which had been ordered from a Bulgarian shipy-ard
in 1992, was delivered to the fifteenth defendant, another Panamanian
company controlled by Mr F..
The marriage between Mr F. and his wife had by the end of 1993 bro-
ken down, and in January 1994 they separated. On 6 May 1994 the three
plaintiffs addressed to Mr F. at the offices of his management company
Seaways Shipping Enterprises Limited (a Liberian company) in Piraeus
an extra-judicial witness statement and without prejudice notice. By
this notice the plaintiffs terminated with immediate effect and on the
grounds of Mr F.s’ unlawful conduct the informal agreement with him
for the management by him of the plaintiffs’ capital in the sum of US
$49,000,000 which on the instructions of the first plaintiff had been
transferred by the second and third plaintiffs to the second and third
defendants:
“... for the purchase of ships on our behalf, in the name of foreign
shipping companies, available on the market for purchase, the ownership
of the shares in which, together with revenue and dividends, you under-
took to transfer to us and to manage these companies and these ships,
being paid the usual reasonable salary in return.”
(..) On 8 June 1994 the boards of the second and third plaintiffs met in
Piraeus under the chairmanship of the first plaintiff and resolved to submit
an indictment, by instruction and on behalf of each company, against Mr
F. for the offence of embezzlement. Each company declared that it would
appear as a civil plaintiff for financial reparation in the modest sum of
15,000 drachmas “for moral harm consisting in damage to the reputation
and status of the company, with reservation for restitution of the material
damage suffered by the Company as a result of the defendant’s unlawful
actions”.
On 6 July 1994, on behalf of himself and the second and third plaintiffs,
the first plaintiff signed an indictment directed to Mr F. at the Piraeus
address of his management company accusing him of committing a seri-
ous felonious embezzlement of roughly US $50,000,000. According to this
document, in January 1990, the first plaintiff “decided, there and then,
for the sake of his daughter and future son-in-law to make an unusual
gesture, as a sign of the utterly exceptional trust which he placed in him”.
The nature of this unusual gesture was described in the indictment in
these terms:
“Specifically, he decided to withdraw a very considerable portion of the
assets, amounting to roughly fifty (50) million dollars (or 12.5 billion
drachmas at today’s exchange rate), and to entrust the management of
this sum on his behalf to his son-in-law, in exchange, of course, for a
suitable fee, the level of which would be specified later.
(..) at the end of January 1990, the defendant tendered his resignation
from his father’s company, and the above agreement then began to be
put into effect, on the basis of the following scheme which was agreed at
the time:
The defendant would select and propose to the first plaintiff the purcha-
se on his (the 1st plaintiff’s) behalf of various second-hand dry-cargo
vessels. Then, provided that the first plaintiff approved each purchase, the
first plaintiff or companies controlled by him would transfer to the defen-
dant or to companies controlled by him, according to his instructions, the
necessary capital for the purchase. The defendant would then proceed,
always on the instructions of the first of us to purchase each vessel in
the name of a foreign shipping company whose shares would be issued
in the name of the 1st plaintiff or his companies, or would be bearer
shares, and in each case would be delivered to him. For this purpose,
he (the defen-dant) would use the capital sums transferred to him or to
the companies commissioned by him, as a loan to each foreign shipping
company, so that on receipt of a further loan from a bank, the purchasing
company would be able to pay in full the purchase price of each vessel.
Meanwhile the defendant, acting on our instructions, would manage both
the total sum of capital which we made available to him (the Capital)
and the shipping company shares acquired with this capital and the loans
made to these companies in our name, and also the shipping companies
themselves and their vessels, through the defendant’s management
companies, in ex-change for the customary fee, the level of which was
left to the equitable judgment of the 1st plaintiff (Article 371 of the Civil
Code).
It was also agreed that the auditors Moore Stephens & Co., who have
offices in Piraeus, should be appointed to carry out the regular audit of
the management of ships and companies.
On the basis of this informal, verbal agreement (because of the moral
impossibility of obtaining a document) which was reached in Piraeus
at the end of January 1990, the defendant tendered his resignation
from his father’s company. He then nominated for us the Panamanian
companies S. M. S.A and P. T. S.A. as the companies commissioned
by him to manage the capital. All the capital stock of these companies
belongs to the defen-dant. Indeed the first of us, in the spirit of assisting
the defendant towards this end, saw to it that the company under his
share control, known as I. C. N. S.A., leased to the defendant’s company
JOHN F. (B.) LTD. part of its 6th floor in the multi-storey building at 64 F.
Street and 7 Ilas Me..
Immediately after this, the defendant began to investigate the market for
second-hand ships, and on 10 May 1990 the first of us ordered the second
(K. C. N.) to transfer to the aforesaid S. in Piraeus the sum of five million
(5,000,000) US dollars as a first instalment of the Capital withdrawn for
management.
On 23 September 1990, the defendant married the first plaintiff’s
daughter, Cleo (Clelia) in Athens. The couple lived initially in London until
June 1991, and immediately afterwards in Athens at 45 K. Street, P. P.,
where they remained until 27.01.1994, when the defendant abandoned
the conjugal home.”
The indictment set out details of the sums transferred and vessels bought,
and alleged that Mr F. had purchased ships through the various defendant
companies at a total cost of over US $115,000,000, borrowing over US
$85,000,000 from banks. The indictment alleged that:
“Under our agreement, he kept the shares in his possession, and also
the other company documents -- a circumstance which was a further
expressi-on of the utterly exceptional trust which we placed in him.”
But the indictment alleged that Mr F. had criminal intentions from the
outset, as evidenced by the facts that money was borrowed from banks
for the purchase of ships and that only part of the money advanced
to him by the plaintiffs was used for purchasing vessels, the balance
remaining in his hands. Reference was made to the extra-judicial
statement dated 6 May 1994 served on Mr F. at the registered office of his
business, and the summary of the case against him was expressed in this
way:
“Thus, with the manifestation – now beyond all doubt – of his criminal
intent which is implicit in his extra-judicial statement of 18 May 1994, the
defendant has made final and complete the crime of embezzlement of the
entire amount of the huge fortune which we entrusted to his detention
[ katochi] and management – a crime which he was committing, as has
been proven, continuously from May 1990 to May 1994. Specifically, the
defendant unlawfully appropriated:
- The shares in the ship owning companies, which he purchased on be-
half of the first of us. As soon as these shares were purchased on behalf
of the first of us, they passed directly into his ownership [ kyriotita] in
accor-dance with the agreement between us, while the defendant retained
the detention [ katochi] thereof by virtue of the managerial mandate
which had been given to him (Article 977 of the Civil Code. Furthermore,
even if the defendant had acquired the shares with our money, which was
not the case, embezzlement would still have been a fact, according to
Article 375 para. 3b of the Penal Code).
- The cash which was placed at his disposal, i.e. in his detention [ kato-
chi] (see Areios Pagos 1093/1991 Full Bench, Poin. Chr.MB’ page 39), with
the mandate to manage it, as distinguished in greater detail below:
a. The cash which was used for the purchase of ships became the object
of unlawful appropriation to the extent that, as has been proven, it was
issued by the defendant to the aforesaid Panamanian and Liberian compa-
nies on his own behalf and in his name, while the express mandate
where-by the money was made available to him required that he should in
turn give (lend) it to the companies for purchase of the ships on behalf of
the first of us.
b. The cash remaining after purchase of the ships. The amount, as men-
tioned above, was far greater than we knew, because the defendant made
extensive use of bank loans...
c. The cash accrued from his general management of ships and cash.
These profits, especially freight and interest, as finally accrued, belong to
us, just as all the other money which remained in the defendant’s hands
for management is ours.”
All three plaintiffs appeared as civil plaintiffs.
On 5 November 1996, the Council of Judges of the Court of First In-stance
in Piraeus gave a reasoned judgment concluding that Mr F. should not be
charged with the crime of embezzlement. The basis of their decisi-on, in
summary, was:
“In accordance, therefore, with the foregoing, there is not even any ob-
jective foundation to the crime of wilful embezzlement, of which the
defendant stands accused, given that, as we have seen, the monies paid
to him by the plaintiff took the form of a gift or, in all events, the form of
a loan, meaning that he acquired ownership thereof in accordance with
the rules of civil substantive law (Civil Code 806, 496); there is therefore
no basis for the crime in question in that there cannot be appropriation
of things or monies belonging to the perpetrator himself. (Supreme Court
of Appeal 166/1985 (chronicle of criminal cases LE 685), Supreme Court
of Appeal 263/68 and 246/69). However, irrespective of the fact that
the accused has no criminal liability in accordance with the foregoing, it
must be said that he can still be actively pursued through civil channels
in accordance with subjective law, in order to recover the monies given or
lent, over and above the fact that the accused (as he himself acknowled-
ges) has an imperative moral obligation to return the aforementioned
to the plaintiff, given the imminent dissolution of his marriage with the
plaintiff’s daughter.”
Meanwhile, in July 1994, C. had issued a petition for divorce which was
served on Mr F. at his business address in Piraeus. In her petition C.
referred to the home which she and Mr F. had set up temporarily in Lon-
don while she had been completing her studies as a student at the City
University, and she described how, on her graduating in June 1991, she
and her husband had moved to Athens where they had made their perma-
nent residence until the separation. In May 1995 Mr F. made a complaint
to the Public Prosecutor of Piraeus alleging perjury, false witness and
aggravated defamation against the first plaintiff and others. A trial of this
accusation is pending.
The plaintiffs appealed against the dismissal of the indictment against
Mr F., but on 5 March 1997 the Court of Appeal at Piraeus, in a reasoned
judgment, rejected the appeal, concluding that the money had been
provi-ded to Mr F. by way of loan so that he had become the owner of the
funds.
The writ in these proceedings was served on Mr F. in London when he
visited to do some shopping on 7 October 1997, and before the end of
that month vessels belonging to the defendants had been arrested at
the suit of the plaintiffs in South Africa, England, Amsterdam and the
Netherlands Antilles. At this stage no application had been made to serve
any of the second to fifteenth defendants out of the jurisdiction. Mr F.
issued his notice of motion in these proceedings on 23 October 1997,
and the plain-tiffs then made application to serve the second to fifteenth
defendants out of the jurisdiction. Following the decision of Neuberger J
on 14 Novem-ber 1997, the four vessels were released from arrest. In a
judgment given on 18 November 1997 Meskin J, sitting in the High Court
of South Africa at Durban, gave his reasons for ordering the release of the
vessel arrested there:
“The essential allegation of the first respondent is that F. in breach of trust
refused to procure that the first respondent (or his nominee) should have
the beneficial ownership of the shares in the applicant. (…) These rights
cannot found claims against the applicant.”
On 19 November 1997 the Supreme Court of Greece allowed an appeal
by the plaintiffs against the Court of Appeal decision of 5 March 1997 on
grounds relating (in the first plaintiff’s case) to want of reasoning and (in
the second and third plaintiffs’ case) to their authority to act.
We shall consider the issues argued before us in the order in which they
logically arise, irrespective of whether they are issues raised by the
appeal or the cross-appeal.
Article 2 of the 1968 Brussels Convention
We conclude that at the relevant time Mr F. enjoyed a special business
domicile by virtue of Article 51 of the Greek Civil Code. Applying Article
52 of the Convention, we conclude that he was domiciled in Greece, a
Contracting State. He must therefore be sued there under Article 2 of the
Convention. We would allow Mr F.s’ cross-appeal on this ground.
Article 4 of the 1968 Brussels Convention
“If the defendant is not domiciled in a Contracting State, the jurisdiction
of the courts of each Contracting State shall, subject to the provisions of
Article 16, be determined by the law of that State.”
Article 16 has no bearing on the present issue.
Our attention has been drawn to section 49 of the 1982 Act which pro-
vides:
“ The first issue which arises under this Article is whether, if procee-dings
are brought in England against a defendant not domiciled in another
contracting state (which for present purposes we assume to be the
position of Mr F.), the English court may on appropriate facts stay the
proceedings or decline jurisdiction in favour of a clearly more appropriate
forum in another contracting state (in this case, said to be Greece).
In considering the problem before us the starting point must be that Mr
F. was properly served with these proceedings, however temporary and
fortuitous his presence in this country, and the court has jurisdiction to
entertain the action. The case is one in which jurisdiction has been plainly
established against Mr F. as of right.
In submitting (…) that the primary object of the Convention was to a-
void clashes between the jurisdictions of the contracting states by the
application of rigid rules, and that the Convention was intended, in
gene-ral, to confer jurisdiction by the application of mandatory, non-
discretionary rules, the plaintiffs were correct: see Lord Goff of Chieveley
in Airbus Industrie GIE v Patel [1999] 1 AC 119 at 131-132; Professor
Schlosser’s report, Official Journal 1979 No.C59/71, page 97, para.78. But
if in a case such as the present a court such as this defers to the court
of another contracting state which in its considered judgment is signifi-
cantly better placed, for whatever reason, to administer true justice bet-
ween the parties, such deference involves not jurisdictional imperialism
or chauvinism nor any clash or competition between jurisdictions but the
truest comity between courts of contracting states. While we are obliged
to have regard to the guidance of Professor Schlosser, and gladly do so,
it would seem that he was, as Mance J put it in Sarrio S.A. v Kuwait In-
vestment Authority [1996] 1 Lloyd’s Rep. 650 at 655,
“... throughout only dealing with forum non conveniens in the context
of jurisdiction exercised on what I have called pure Convention grounds
(under art 2 or 3)”.
The present issue arose more directly in Sarrio, above, where the choice
was between the exercise of jurisdiction in England and in another
contracting state. Essentially the same submission was made to Mance J
as has been made to us (see page 654) but he rejected it (see page 655).
He acknowledged that the issue in Harrods was different, but observed (at
page 655):
“The Court’s conclusion that considerations of appropriateness of forum
were admissible in this connection does not determine the present
question – though it might be said to be somewhat paradoxical if forum
non conve-niens was relevant to the exercise of discretion on pure
Convention grounds when the alternative forum was in a non-contracting
state, but was irrelevant to its exercise on national grounds under art.4
when the alternative forum was in a Contracting State. Both situations fall
outside the central purposes of the Convention.”
The Court of Appeal took the same view: see [1997] 1 Lloyd’s Rep.113
at 123-124 per Evans LJ; page 126 per Peter Gibson LJ; and page 129
per Brooke LJ. These expressions of opinion were not necessary for the
decision of the case, which was eventually decided by the House of Lords
on other grounds: see [1999] 1 AC 32. They are nonetheless, in our judg-
ment, persuasive expressions of opinion. In The “Xin Yang” [1996] 2
Lloyd’s Rep. 217 Clarke J, who did not have the benefit of the Court of
Appeal judgments in Sarrio, shared the view of Mance J. He said (at page
221):
“It would, I think, be very odd if in the case of an action against a de-
fendant not domiciled in a Contracting State the English Court could
decline to exercise jurisdiction on the merits in favour of a more appropri-
ate forum in a non-Contracting State, such as Argentina in In re Harrods
(Buenos Aires), but was bound to determine the case on its merits and
to refuse to decline to do so in favour of a more appropriate forum in a
Contracting State.”
He expressed the governing principle in this way (at page 222):
“It follows that my conclusion is the same as that of Mr Justice Mance in
Sarrio. It is that (leaving arts.16 and 17 on one side) where the defen-
dant is domiciled within a Contracting State there is no room for the
exercise of a discretion to decline jurisdiction on the grounds of forum non
conveniens. On the other hand, where the defendant is domiciled outside
a Contracting State the Court which would otherwise be first seised is
entitled to decline to exercise jurisdiction on the ground of forum non
conveniens whether the alternative forum is within a Contracting State,
as in this case, or outside a Contracting State as in In re Harrods (Buenos
Aires) ”.
It is plain, on the authority of Zelger v Salinitri [1984] ECR 2397 (Case
129/83) that “the court first seised” in Article 21 means the court before
which the requirements for proceedings to become definitively pending
are first fulfilled, and this court has held those requirements to be
satisfied (for Convention as opposed to domestic purposes) upon service
of the writ and not its issue: Dresser UK Limited and Others v Falcongate
Freight Management Limited and Others [1992] QB 502; The Sargasso
[1994] 3 All ER 180. It would, however, seem that there is nothing to
prevent the second court accepting jurisdiction if the court initially first
seised effecti-vely disseises itself. Thus the judge made it as plain as
could be that the English court would not entertain any jurisdiction in
the proceedings provided the Greek civil courts accept jurisdiction, as
he had every reason to expect them to do given the undertaking of the
defendants to submit.
In considering the plaintiffs’ submissions on Article 2 and Article 4 of
the Convention, we have not so far considered the test which must be
applied. In Canada Trust Co and Others v Stolzenberg and Others (No.2)
[1998] 1 WLR. 547 the Court of Appeal held that the plaintiff seeking to
show that the English court had jurisdiction was required to show a good
arguable case. At page 555 Waller LJ said:
“It is also right to remember that the “good arguable case” test, although
obviously applicable to the ex parte stage, becomes of most significance
at the inter partes stage where two arguments are being weighed in the
interlocutory context which, as I have stressed, must not become a “trial”.
“Good arguable case” reflects in that context that one side has a much
better argument on the material available. It is the concept which the
phrase reflects on which it is important to concentrate, i.e. of the court
being satisfied or as satisfied as it can be having regard to the limitations
which an interlocutory process imposes that factors exist which allow the
court to take jurisdiction.”
We consider, differing from the judge, that on the facts of this case the
plaintiffs do not show a good arguable case on the materials now before
us that Mr F. is not a person domiciled in a contracting state or that he
is a person not domiciled in a contracting state. On the material now
available we consider that he has a much better argument on those
points.
(..)But having reached a clear decision that Mr F. does, contrary to the
plaintiffs’ submission, fall within Article 2, we do not regard a decision on
the effect of Article 4 as “necessary” to enable us to give judgment.
Article 21 of the 1968 Brussels Convention
Mr F. also contends that the judge was wrong to hold that these procee-
dings should not be stayed pursuant to Article 21 of the Convention on
the grounds that the criminal court at Piraeus was the court first seised
of proceedings involving the same cause of action and between the same
parties. Article 21 provides:
"Where proceedings involving the same cause of action and between the
same parties are brought in the courts of different Contracting States,
any court other than the court first seised shall of its own motion stay its
proceedings until such time as the jurisdiction of the court first seised is
established.
There are five decisions of the European Court of Justice (“the court”)
which touch on the issue we have to decide.
In Sonntag v Waidman [1993] 1 ECR 1963 (…) In Zelger v Salinitri [1984]
ECR 2397 (…) In Gubisch Maschinenfabrik AG v Palumbo [1987] ECR
4861 (…) Overseas Union Insurance Ltd v New Hampshire Insuran-ce
Company [1992] 1 QB 434 (…) In the Maciej Rataj [1995] 1 Lloyd’s Rep.
302 (…) We derive from these five judgments the following prin-ciples:
(1) The Brussels Convention applies to a civil claim for compensation or
restitution even when the claim is an appendage to criminal proceedings;
(2) A court in a Convention country will be seised of proceedings for the
purposes of Article 21 as soon as they are definitively pending before it;
(3) Proceedings involve the same cause of action for the purposes of
Article 21 if they have the same cause and the same objet;
(4) Actions have the same cause if they have the same facts and rule of
law as their basis;
(5) Actions have the same object if they have the same end in view;
(6) In so far as the proceedings in a court second seised include additional
parties, that court shall decline jurisdiction in favour of the court first
seised in relation to the part of its proceedings which is between the same
parties;
(7) The court second seised will not inquire into the basis on which the
court first seised has asserted its jurisdiction.
The judge held that Article 21 did not avail Mr Frangos for seven rea-
sons, although he said that the point did not appear to be clear and
he conceded that there was a risk of inconsistent decisions. He was
influenced by the consideration that if the Greek criminal proceedings
were permitted to continue, they would be pursued by the state. He
said that although in a sense they had commenced, because a formal
complaint had been lodged and the judicial process had been started,
there was no question of proceedings, in the sense of a prosecution,
having yet started. He placed weight on the fact that the plaintiffs
were only mounting a civil claim in the criminal proceedings in order
to give them locus standi to pursue their complaint, and they were not
seeking any significant financial benefits in terms of substantive relief.
Although it would be open for them to do so, they had not yet done
so, and a conviction for embezzlement would be a precondition to civil
relief being granted. The judge was also influenced by the consideration
that it seemed to him to be overwhelmingly likely that even in those
circumstances (viz a claim for significant financial relief and a conviction)
the Greek criminal court would refer the plaintiffs’ claim to the Greek
civil courts, and there was nothing to stop them mounting a civil claim
there now, whatever happens in the criminal proceedings. The judge also
referred to the different standard of proof obtaining in the Greek criminal
court.
In our judgment, the judge was right to hold that the action should not
be stayed pursuant to Article 21, although we do not agree with all the
reasons he gave. The jurisprudence of the European Court of Justice
has established that a civil claim of the type the plaintiffs have made in
Greece is one to which the Convention applies, and it is a matter of choice
for the plaintiffs to decide how much to claim in these proceedings..
Unless and until further defendants are joined, the proceedings are bet-
ween the same parties. They are definitively pending in Greece. They are
on the way to the Supreme Court on appeal from a ruling of the Council of
Judges of the Court of Appeal at Piraeus for the second time.
Article 21 does not, however, apply, because the object of the procee-
dings is not the same. In Greece the civil claim is a claim for the recovery
of money. In England the end the proceedings have in view is not the
simple recovery of money, but in large part the tracing of that money into
the assets which were acquired with it, and the claim to a beneficial inte-
rest in those assets, based on allegations of breach of a duty of fidelity.
Article 22 of the 1968 Brussels Convention
The judge rejected this contention on four grounds. He said that the sub-
stantive relief sought in the present proceedings, which was essentially of
an equitable and tracing nature, could not be pursued under Greek civil
law and could not therefore be the subject of a claim in the Greek criminal
proceedings. He said that the tracing remedies against the ship-owning
companies could not be pursued in the Greek criminal proceedings to
which they were not parties, the Greek criminal proceedings could not for
obvious reasons be heard in this country, and he did not see how those
proceedings and the present proceedings could be “heard and determined
together”. Thirdly, he had some difficulty in seeing how the Greek crimi-
nal proceedings could be said to be “pending at first instance”: on one
view they were not yet pending at all, and on another view they were
already at the appellate stage. Finally, he did not consider that the Greek
criminal court, if it was properly treated as the court first seised, had
jurisdiction to determine the plaintiff’s claim in the present proceedings,
so that the second sentence of Article 22 could not be applied in Mr F.s’s
favour.
While we do not agree with all the judge’s reasons, we agree with his
conclusion. He did not have the benefit of the decision of the House of
Lords in Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32. We also
consider that the plaintiffs’ claim in Greece is in an action pending at first
instance within the meaning of Article 22. On the other hand, we agree
with the judge that the fact that this claim in Greece is tacked on as an
appendage to criminal proceedings makes the application of Article 22
wholly inappropriate and the action should not be stayed on that ground.
RSC Order 12 Rules 7 and 8
RSC Order 12 Rules 7 and 8 read, so far as is material:
"7. The acknowledgement by a defendant of service of a writ shall not be
treated as a waiver by him of any irregularity in the writ...
8. A defendant who wishes to dispute the jurisdiction of the court in the
proceedings by reason of any such irregularity as is mentioned in rule 7...
shall give notice of intention to defend the proceedings and shall, within
the time limited for service of a defence, apply to the Court for -
(a) an order setting aside the writ..."
Mr F. argued that the writ was irregular for four different reasons. He said
that the statement of claim endorsed on the writ disclosed no reaso-nable
cause of action, or that it was pleaded in such a way as to amount to an
abuse of process. Alternatively he said that the action was an abuse of
process:
(i) because of the inconsistent allegations and evidence in the Greek and
other overseas courts;
(ii) because it amounts to a collateral attack on the Greek courts’ decisi-
ons;
(iii) because of the way the plaintiffs have used it to mount further pro-
ceedings in different countries to arrest ships without first applying for
leave to serve the writ out of the jurisdiction on the relevant defendant
companies.
We will consider the last of these arguments first. As we have already
noted, after the writ was served on Mr F. on 7th October 1997, ships
belonging to three of the companies under his control (the eighth, ninth
and thirteenth defendants) were arrested between 9th and 21st October
1997 in Durban, Redcar, Amsterdam and St Eustacius (in the Netherlands
Antilles) purportedly in support of and ancillary to the claims made in
these proceedings, without the plaintiffs making any attempt to obtain
leave to serve these proceedings on any of the second to fifteenth defen-
dants. Mr F.’s notice of motion challenging the jurisdiction of this court
was issued on 23rd October, and the following day Lindsay J, when
ordering an expedited hearing, made observations about the effect that
any further arrests might have on the decision whether there had been
an abuse of process. No further arrests were made. When Neuberger J
handed down his judgment on 14th November, the plaintiffs accepted
that all the ar-rested vessels should be released, and a direction to that
effect was inclu-ded in the order the judge made. Mr F. maintained that
these actions by the plaintiffs demonstrated that their true purpose
in bringing these pro-ceedings was a collateral and illegitimate one,
namely the destruction of his business, and that it involved the use of
these proceedings to launch vexatious, oppressive and abusive arrest
proceedings.
This country is a party to the 1952 Arrest Convention, which is an in-
ternational convention “for the unification of certain rules relating to the
arrest of sea-going ships”.
When effect was given to the Arrest Convention in our national law in Part
1 of the Administration of Justice Act 1956 (“the 1956 Act”), section 1(1)
(a) of that Act used the same word “ownership” in relation to claims to
ownership as is used in Article 1(i)(o) of the Convention. In section 3(4)
of the 1956 Act, which created a right to arrest a sister ship in support
of most of the maritime claims mentioned in the Arrest Convention (but
not a claim arising out of a dispute as to ownership), the draftsman used
the expression “beneficially owned”. The same distinction is now to be
found in sections 20(2)(a) and 21(4) of the Supreme Court Act 1981
(“the 1981 Act”) which have replaced the earlier provisions. As a result
of this choice of language, it has now for a long time been accepted law
that ownership of a ship for the purposes of the Convention and for the
purpo-ses of the Admiralty jurisdiction of the High Court means legal
owners-hip, except in those provisions where the word is qualified by
the adjecti-ve “beneficial”: see I Congresso del Partido [1978] 1 QB 500,
541, and The “Evpo Agnic” [1983] 2 Lloyd’s Rep. 411, 414-5. In the latter
case Lord Donaldson MR observed that the Convention clearly looked to
ownership and registered ownership as one and the same. Even if the
legal property in the shares of a one-ship company is held by A and the
equi-table property by B, he said that that distinction does not affect the
ow-nership of the ship or the shares in the ship.
Section 21(2) of the 1981 Act permits an action in rem to be brought
in the High Court against a ship in connection with which a claim as to
ownership has arisen. The procedure governing such an action is laid
down in RSC Order 75 Rule 5. This requires the filing of an affidavit which
must state the nature of the claim, the name of the ship to be ar-rested
and her port of registry (ibid, Rule 5(4) and (9)). This court has held that
so long as the deponent to the affidavit complies with the requi-rements
of the rule, the warrant will issue as of right, and no greater duty of full
and frank disclosure is required (The Varna [1993] 2 Lloyd’s Rep. 253).
It follows that in an action in rem the jurisdiction to issue a warrant of
arrest in a case like this flows from the sworn assertion that there is a
claim as to the ownership of a ship within the jurisdiction, and there is
no need to show that the English court has assumed jurisdiction over an
action in personam against the other party to the dispute.
(...) It follows, in our judgment, that this claim is totally misconceived if
it purports to be an appropriate vehicle for supporting an action in rem
for the arrest of any of these ships. This is not because, as Mr F. asserted,
the plaintiffs had not yet got round to applying to serve any of the ship-
owning companies out of the jurisdiction by the time the arrests were
made, but because the claim itself is not a claim in respect of which an
action in rem may be brought in the High Court pursuant to section 21(2)
of the 1981 Act since the underlying claim is not, when properly analysed,
a claim to the ownership of a ship within the meaning of section 20(2)(a)
of the same Act.
The plaintiffs argued that even if we reached this conclusion, this would
not be the end of their claim, since about $19 million out of the $49 milli-
on was not in fact invested in ships. We accept this submission. It would
not therefore be appropriate to set aside the writ on this ground alone.
We can deal with the remaining grounds for Mr F.s’ application under RSC
Order 12 Rule 8 more briefly. In our judgment the judge was right to
reject that submission for the reasons he gave. Even if the plaintiffs’ claim
was being rejected by the criminal courts in fairly trenchant terms – and
since the hearing before him it has been rejected again at court of appeal
level – there was no evidence before him that the plaintiffs would not be
able to make a similar claim in the Greek civil courts, and such authorities
as Hunter v Chief Constable of the West Midlands Police [1982] AC 529
and House of Spring Gardens v Waite [1991] 1 QB 241 could be properly
distinguished. We agree.
Forum non conveniens
The judge directed himself, correctly, that the principles to be applied
were set out in the speech of Lord Goff of Chieveley in Spiliada Maritime
Corporation v Cansulex [1987] AC 460, at pages 476C-478E. He obser-
ved (at page 52 of his written judgment) that, the proceedings having
been regularly issued and served on Mr F. in England, the plaintiffs were,
prima facie, entitled to continue those proceedings against him here.
The judge identified eight factors which, as it appeared to him, pointed
to Greece as the more appropriate forum for the trial of the plaintiffs’
claims against Mr F.. They may be summarised as follows: (1) Mr F. has
no substantial connection with England. He is resident in Greece, spends
much time there and carries on his principal business activities through
a company based there. (2) The first plaintiff, Mr H., spends most of his
time in Greece. The second and third plaintiffs are controlled by the first
plaintiff and are managed in Greece. (3) The inter-relationship between
the findings made by the Greek courts in the criminal proceedings and
any civil proceedings is a matter which is best resolved in a Greek court.
(4) The plaintiffs’ claims against Mr F. in the present proceedings are
reflec-ted in comparable allegations made against him by his former wife,
Clelia, in divorce proceedings pending in Greece. (5) Most, if not all, of
the witnesses so far identified are resident in Greece. None are resident
in England. (6) The bulk of the original documentation is in Greek. Greek
is the first language of the great majority, if not all, of the witnesses. (7)
Greek lawyers have acted for both the plaintiffs and Mr F. in the Greek
criminal proceedings for several years. In that context the Greek lawyers
have become thoroughly familiar with the factual and legal issues. If the
present proceedings were to be tried in London there would be an unne-
cessary duplication of cost and time. (8) The agreement or understanding
between the first plaintiff and Mr F. – which led to payments being made
by companies controlled by the one to companies controlled by the other
– has to be examined in the light of the relationship of this father-in-law
to his son-in law. The “intellectual, emotional and moral culture”, as the
judge put it, underlying that relationship is Greek or Greek Cypriot. It is
not English. The Greek courts are likely to be better able than the English
court to assess the factors which led to payments which were made in this
case.
The judge held that those eight factors, taken together, led to the conclu-
sion that, clearly, a more appropriate forum than England for any civil
proceedings which the plaintiffs sought to bring against Mr F. in connec-
tion with the payments.
We think it important for an appellate court to keep in mind the cautio-
nary words of Lord Templeman in the Spiliada case, at page 465F-G:
“... the solution of disputes about the relative merits of trial in England
and trial abroad is pre-eminently a matter for the trial judge.... An appeal
should be rare and the appellate court should be slow to interfere.”
The foundation of the appellants’ contention that they would be unable to
pursue proprietary claims in Greece is a passage, treated by the judge as
common ground, in the affidavit of Mr Christopher Lockwood, a partner in
the firm of solicitors instructed by Mr F., sworn on 23 October 1997:
“44. Mr Katsouris [the attorney at Piraeus who had acted for Mr F. in
the Greek criminal proceedings]... informs me that Greek law (based on
a civil code) and practice provides for substantive rights and remedies
for breach of mandate. These are not the same as in the English law of
fiduci-ary relationships, trusts and tracing and in particular, there is no
equivalent of the equitable doctrine of tracing into assets in the hands of
third parties. If the plaintiffs’ claim were correct, Greek law would give
them no proprietary right in the vessels. It would only give them a right
to pursue Mr F. or possibly the ship owning companies personally for
compensati-on.”
There are, we think, three distinct matters to be considered: (1) If the
appellants establish their factual contentions in proceedings before the
Greek courts, what remedies are available to them in those proceedings.
(2) If the appellants establish their factual contentions in proceedings
before the English court, what remedies are available here. (3) If and in
so far as the remedies available in the English court are more extensive,
or more efficacious, than those available in the Greek courts, would it be
unjust to stay the English proceedings – and so deprive the appellants of
those more extensive, or more efficacious, remedies – in the particular
circumstances of the present case.
The position in Greece is best described in the Legal Opinion given on 30
October 1997 by Professor Gasis and Mr Scorinis, independent experts
instructed on behalf of Mr F.. At paragraph 12 of that Opinion they state:
“12. The "mandated to manage" alleged by the Plaintiffs has the
characteristics of the contract of mandate stipulated by the provisions of
Articles 713 et seq of the Greek Civil Code. According to these provisi-
ons, Mr H., in his capacity as the alleged giver of the mandate, is entitled
(as long as he can prove that his allegations are true) to demand against
Mr F., in his capacity as recipient of the mandate:
(1) to comply with the terms of the mandate in accordance with the or-
ders of the giver
(2) to render an account regarding the amounts to be paid to him within
the framework of the agreement which allegedly existed between them-
selves and to seek information and documents in connection with the
management of the vessels by Mr F.
(3) to return (restitute) to the giver whatever he received and/or he ac-
quired by reason of the performance of the mandate.”
The allegations against Mr F., as they appear from the indictment signed
on 6 July 1994 which we have set out, are to the effect that, out of the
US$49 million transferred by the second and third plaintiffs to the second
and third defendants, some US$30 million was transferred on to the
fourth to fifteenth defendants (the ship owning companies) and used,
together with some US$85 million provided by way of bank loans, to
purchase second hand dry-cargo vessels (and a yacht) selected with
the approval of the first plaintiff. It is not clear whether the monies
transferred by the second and third defendants to the ship owning
companies are said to have been transferred by way of loan or as capital
subscriptions; but the indict-ment is more consistent with the former.
If those allegations are correct, then there is a balance of some US$19
million which is not accounted for in the material before us.
On the basis that the position is as described by Professor Gasis and Mr
Scorinis – and there is no reason to think that it is not – the remedies
in Greece, on the facts alleged in the indictment, would appear to be
these: (1) Mr F. can be ordered to render an account showing what has
become of the whole of the US$49 million paid to the second and third
defendants. (2) He can be ordered to deliver (or to procure companies
under his control to deliver) to the first plaintiff the shares of the ship
owning com-panies. (3) He can be ordered to transfer or assign (or to
procure compa-nies under his control to transfer or assign) to the first
plaintiff the benefit of any loans made by the second and third defendants
to the ship owning companies. (4) He can be ordered to make restitution
to the first plaintiff of any benefits which he, the second or third plaintiffs
or other companies under his control have received as owners of the
shares or as lenders. (5) He can be ordered to make restitution to the
first plaintiff of any part of the balance of the US$49 million (that is to
say, the US$19 million or thereabouts not so far accounted for) which he,
the second or third defen-dants or other companies under his control have
retained or any assets which he or they have acquired with those funds.
(6) He can be ordered to repay such part of the US$19 million not so far
accounted for as has been disbursed and is not represented by assets. In
other words, if the allegati-ons are made out, there would seem to be no
reason in principle why the Greek court should not have power to compel
Mr F. to disclose what he, or companies under his control, have done with
the US$49 million; to compel him to return or transfer to the first plaintiff
any assets which he, or companies under his control, have acquired with
those monies (inclu-ding, in particular, the shares in the ship owning
companies); to compel him to make restitution in respect of any benefits
which he, or companies under his control, have received from the use of
those monies; and to compel him to repay any balance of the monies no
longer represented by assets. Those may be thought comprehensive and
powerful remedies.
The remedies that would be available against Mr F. in the English court, if
the allegations pleaded in the statement of claim were made out, are not
significantly different.
It is said, however, that the English court would give proprietary reme-
dies – and, in particular, proprietary remedies against third parties. This
contention finds expression in paragraph (6) of the prayer for relief in the
amended statement of claim:
“(6) An order that the Plaintiff be entitled to trace into the vessels listed
in the Schedule hereto acquired by or on behalf of the Fourth to Fifteenth
Defendants, together with a declaration that the plaintiffs are entitled to
ownership of such vessels to the extent the same have been acquired
from the Funds.”
The appellants seek to meet the point that, in transferring monies to the
ship owning companies for the purpose of enabling those companies to
acquire ships, Mr F. was acting in furtherance of the alleged mandate
and not in contravention of it by an allegation, pleaded at sub-paragraph
14(3) of the statement of claim, that:
“... at the dates he caused the Funds to be invested or applied in the
acquisition of the said vessels by the [ship owning] companies Mr F.
intended that the shares in such companies would be registered in his
name or in the names of companies controlled by him or (if bearer
shares) be held by him and for his own benefit;”
As pleaded, there is no claim to trace into any assets other than the
ships and (if any) the proceeds of sale of ships which have been sold.
In particu-lar, there is no claim to trace into any assets representing
the balance of the US$49 million – that is to say the US$19 million or
thereabouts not transferred to the ship owning companies – which may
have come into the hands of persons other than Mr F. and the second and
third named defen-dants.
The claim to trace into assets which are in the hands of persons other
than Mr F. and the second and third named defendants – in particular, into
the ships themselves – raises three issues: (i) would the English court,
applying its own choice of law rules, regard the question whether, say, a
ship owning company held its ship upon a trust for the plaintiffs (if the
pleaded allegations were made out) as a matter to be determined by
English domestic law; (ii) if so, would the ship owning company be held
to be a trustee for the plaintiffs under English domestic law in the cir-
cumstances alleged; and (iii) would it be an appropriate exercise of the
court’s discretion to permit service on the ship owning companies (or any
other parties out of the jurisdiction) in order to enable such claims to be
made against them here. It is, we think, important not to lose sight of the
fact that the tracing claims which the plaintiffs seek to raise in the English
court are claims against assets which (at least, prima facie) are not within
the jurisdiction of that court; and, further, they are claims against assets
which (again, prima facie) are in the ownership of persons who, themsel-
ves, are not within the jurisdiction.
The first of those issues – identification of the lex causae or applicable law
– itself involves three stages, as explained by Staughton LJ in Macmil-
lan Inc v Bishopsgate Investment Trust Plc [1996] 1 WLR 387, at pages
391H-392B. First, it is necessary to characterise the issue that is before
the court; second, to select the choice of law rule which prescribes
a connec-ting factor for the issue in question; and, third, to identify
the system of law which is tied by that connecting factor to the issue
in question. It is impossible, at this stage of proceedings, to reach a
concluded view as to the appropriate characterisation of the issue or
issues which would be determinative of the question whether the ship
owning companies recei-ved the monies transferred to them by the
second and third defendants as trustees; but, on the material available, it
seems to us much more likely than not that, under English choice of law
rules, that question (as distinct from the question whether Mr F. and the
second and third defendants were themselves in breach of trust) would
be determined by the law of the place (or places) of payment to, or to the
order of, the ship owning companies. It is for the appellants to show that
place (or those places) were in England. There is no evidence of that.
If, notwithstanding the lack of evidence as to the place of receipt, the
question whether the ship owning companies received the monies
transfer-red to them as trustees falls to be determined by English
domestic law, it becomes necessary to consider whether the appellants
have shown that, under English law, that question would be answered in
their favour. In this context they can rely on the decision of Millett J in El
Ajou v Dollar Land Holdings plc and another [1993] 3 All ER 717; and, in
particular, on a passage at page 737h:
“An English court of equity will compel a defendant who is within the
jurisdiction to treat assets in his hands as trust assets if, having regard to
their history and his state of knowledge, it would be unconscionable for
him to treat them as his own.”
But that, of course, poses two further questions. The first, which we have
already mentioned, is whether it would be an appropriate exercise of the
court’s powers to permit service of these proceedings on a defendant who
is not within the jurisdiction in order to subject him, in relation to assets
which are not within the jurisdiction, to the operation of the English law
of trusts. The second is whether, if the relevant defendant (say, a ship
owning company) were subjected to the jurisdiction of the English court
following service abroad, it would be held unconscionable for him to treat
as his own assets abroad (say, the ship) having regard its history and his
state of knowledge.
In relation to the second of those questions, the appellants rely on ob-
servations in Bristol and West Building Society v May May & Merrimans
[1996] 2 All ER 801, at page 818b-g. But it is important to keep in mind
that those observations must be confined to circumstances in which the
fiduciary had obtained funds from his principal by a fraudulent misrepre-
sentation – see the judgment of Millett LJ in Bristol and West Building
Society v Mothew [1998] Ch 1, at page 15. On a proper analysis of the
statement of claim in the present case – in particular, of the way in which
the plaintiffs’ case is pleaded in paragraph 14 – there is no allegation that
the Funds were obtained by fraud. What is alleged is that, at the time
when he caused the Funds to be applied for the purpose of the acquisition
of each vessel by the relevant ship owning company, Mr F. intended to
appropriate the shares in that company for his own benefit. It is not alle-
ged – although, perhaps, left to be inferred – that, having formed that
intention in connection with the acquisition of the first vessel to be acqui-
red (in October 1990), the subsequent receipt of funds for the acquisition
of other vessels (on dates between 17 May 1991 and 28 May 1993) was,
in some way, fraudulent. Nor is there any suggestion in the extra-judicial
witness statement and without prejudice notice of 6 May 1994 that the
funds were obtained by fraud on the part of Mr F.. Indeed, it might be said
that, in calling for the delivery of the shares, the plaintiffs have elected
to adopt the application of the funds in accordance with the mandate.
There are allegations in the indictment of 7 July 1994 to the effect that Mr
F.s’ plans were “of a criminal nature from the outset”; but the allegations
of embezzlement are founded on his conduct in refusing to deliver the
shares and render accounts.
In these circumstances we are not persuaded that, as pleaded, the state-
ment of claim discloses any cause of action against the ship owning
companies. In particular, we are not persuaded that, if the question did
fall to be determined by English law, an English court would reach the
conc-lusion (on the allegations made in the pleadings) that the ship
owning companies held their assets on trust for the plaintiffs. But, even if
the English court were to reach that conclusion, we cannot see that any
useful remedy would follow. Neither the ship owning companies nor their
assets are within the jurisdiction. For the reasons which we have already
given, beneficial ownership would not be sufficient, of itself, to found an
arrest under the 1952 Arrest Convention.
RSC Order 11 Rule 4(2) requires that no leave shall be granted under
Rule 1(1) unless “it shall be made sufficiently to appear to the Court that
the case is a proper one for service out of the jurisdiction”. The inter-
relationship of the merits of the plaintiff’s claim and the principle of forum
conveniens in this context was considered by Lord Goff in Seacon-sar Ltd
v Bank Markazi [1994] 1 AC 438, at page 456C-E. The two elements are
separate and distinct.
The underlying question is whether, in all the circumstances, it would be
unjust to deny to the plaintiffs the advantage which they seek to obtain
by bringing proceedings here in which they can join persons who are
not here but who may have assets (also not here) which may be shown
to be derived from the monies paid by the second and third plaintiffs to
the second and third defendants pursuant to an arrangement between
a Greek Cypriot ship owner and his Greek son-in-law. In our view, that
question has to be answered in the negative. We are satisfied that the
judge was right to reach the conclusion which he did on the issue of forum
non conveniens.
Service out of the jurisdiction on the second to fifteenth defendants
The second to ninth, eleventh to thirteen and fifteenth defendants are
companies incorporated in Panama, having their registered offices
in Panama City. The tenth and fourteenth defendants are companies
incorpo-rated in Liberia, having their registered offices in Monrovia. None
of those defendants have been served with the writ in these proceedings.
We have already expressed the view that this is not a case in which it
could be proper to give leave for service out. We have taken that into
account in reaching the conclusion that it is not unjust to deny to the
plaintiffs the advantage which they seek to obtain by bringing proceedings
here against Mr F...
Conclusion
For the reasons which we have set out, this appeal must be dismissed.
ORDER (Not part of judgment):
Cross-appeal allowed under Article 2 of the Convention; plaintiff's ap-
peal under Article 4 dismissed; cross-appeal under Articles 21 and
22 dismissed; cross-appeal under Order 12, rules 7 and 8 dismissed;
plain-tiff's appeal on forum non conveniens dismissed; plaintiff's appeal
against leave to serve the 2nd to 15th defendants out of the jurisdiction
dismissed; writ to be set aside for lack of jurisdiction; defendants to be
released from their undertaking; liberty to apply refused; defendants to
have costs of appeal and 75% of the costs below and 25% of the costs of
the cross-appeal; leave to appeal refused. (…)“