JUDGMENT-1:
LEGGATT LJ: (giving the first judgment at the invitation of Purchas
LJ). Before the court is an appeal by the plaintiffs in the action, A. Inc,
formally known as T. F. L. Inc (to which I shall refer as 'TFL') against the
grant of a Mareva injunction issued on 21 December 1989 pursuant to
the order of Mr Piers Ashworth QC (sitting as a deputy judge of the High
Court) and a variation of that injunction made pursuant to the order of
Otton J on 27 April 1990. TFL seek both the discharge of those orders
and consequential orders in their favour as to costs. The main issue in the
appeal is whether the deputy judge had jurisdiction to order the injunction
in aid of parallel Dutch proceedings that have not yet been concluded.
TFL have not maintained such other grounds of appeal as were referred
to in their notices of appeal. Attention has primarily been focused upon
the order of the deputy judge since that of Otton J was contingent upon
it, and before the judge, as before the deputy judge, the time available
did not permit either of them any detailed consideration of the issue of
jurisdiction.
In order to understand the context in which the Mareva injunction was
sought and granted, it is necessary to summarise as briefly as possible
the background of the litigation both in this country and in Holland.
In doing so, I am greatly assisted by the outline of the proceedings
appended to Mr Spearman's skeleton argument, and for present purposes
I propose to borrow from it almost verbatim.
TFL operated a container ship service between the east coast of the
United States and Europe. By an agreement of 29 June 1976 TFL
appointed a Dutch company, called TN. I. T. BV (to which I shall refer as
'TN.'), as TFL's general agents for the operation of that shipping line. By
a further agency agreement of 1 September 1977, which was governed
by Dutch law, TFL and TN. in turn appointed J. S. Agencies Ltd (which I
shall call 'JSA') to perform the functions of a port agent for that shipping
line. For that service JSA was paid commissions on net freight collected.
JSA had a related company called I. Holdings Ltd (to which I shall refer as
'I.'). I. are the defendants in the action.
By a guarantee of 6 April 1978, which was governed by English law, I.
guaranteed unconditionally and irrevocably payment to TFL of 'all freights
and other moneys... due owing or incurred to [TFL from or by JSA] under
the terms of... the Further Agency Agreement'. A clause of the guarantee
provided:
'Any statement of account purporting to show the amount due from [JSA]
under the terms of... the Further Agency Agreement signed as correct by
any duly authorised officer of [TFL] and certified by the auditors of TN.
shall be conclusive evidence as against [I.] of the amount so due.'
I. were induced to maintain their guarantee, at least in part, by
undertakings given by JSA and the individual third parties to the action
which were given by letter dated 18 November 1985.
Oral and written notice of the termination of JSA's agency was given in
May 1985. The net freights held by JSA on termination amounted to £
721,658, a sum which was later reduced to £ 605,260.67 as a result of
disbursements claimed by JSA and other sums due to TFL. None of the
total sum due was held by JSA.
The action in England consisted of a claim by TFL against I. under the
guarantee to recover the sum of £ 605,260.67 on the footing that it
represented money due from JSA to TFL under the further agency
agreement. TFL contended that the sum claimed had always been
indisputably due subject only to cross-claims in the nature of set-offs,
and also that the sum had only been withheld by JSA as security for those
cross-claims. TFL relied upon a telex message from one of JSA's directors
to their Dutch lawyers in which it was said that they ceased to be TFL's
agents at the end of August 1985, and that thereafter they had withheld
payment of the sum of £ 605,260.67 because they wanted to ensure that
if they were awarded damages against TN. in the Dutch court they would
as least have that sum by way of insurance in case TN. turned out not to
be good for the money. TFL also relied upon the fact that I. obtained £
600,000 from JSA which TFL argued was covered by a trust provision in
the guarantee.
In the English proceedings TFL sought summary judgment under RSC Ord
14. I., on its side, sought summary judgment against JSA and also the
individual third parties to whom I have referred. When the matter came
before the deputy master he gave leave to defend conditional on the
sum of £ 605,260.67 being brought into court. On appeal Sir Neil Lawson
varied the master's order by adding an order that the sum in court was
not to be paid out without specific order of the court. That addition was
made at the instigation of JSA, who feared that the money might not be
available to satisfy their claims in the Dutch proceedings (to which I shall
shortly refer) if TFL were successful in obtaining judgment against I. in
this country before the Dutch proceedings had been concluded, because
the moneys in court here would then be paid out in satisfaction of the
judgment. In response I. relied upon a number of detailed defences,
including the assertion that there was no privity of contract between
TFL and JSA under the further agency agreement, that there was no
consideration for the reason that there was past consideration and so
forth. On 21 December 1989 the deputy judge made the order for the
Mareva injunction to which I have earlier referred.
On 8 January 1990 I. amended their pleadings in such a way as to
abandon all those detailed defences which I have mentioned. Instead they
argued that the payment that was made to TFL in accordance with the
order of 21 December 1989 had the effect of satisfying JSA's obligations
under the further agency agreement and extinguishing TFL's cause of
action against I.. I. also argued that TFL could not recover interest against
I. at any rate higher than that to which they would be entitled under
Dutch law.
The hearing of the action in England occurred between 11 and 16 January
1990 before Otton J who gave a reserved judgment on 27 March 1990 in
which he gave judgment for TFL for £ 605,260.67 together with interest
at 1% over base rate.
The proceedings in Holland had meanwhile been proceeding, though with
less celerity. On 12 February 1986 JSA began proceedings against TFL and
TN. in Holland, and those companies in their turn made cross-claims in
those proceedings against JSA.
On 18 June 1987 the court at first instance in Rotterdam gave a
judgment, against which both sides appealed. On 24 February 1989 the
district court in Rotterdam held that there was privity of contract between
TFL and JSA under the further agency agreement, that TFL had proved
its claim against JSA under that agreement in the sum of £ 605,260.67,
and the court accepted that TFL was entitled to claim interest upon that
sum. The court also upheld the rejection by the court below of JSA's
claim to assert a set-off, but rejected the right for which JSA contended
of retention, holding that TFL's judgment against JSA was enforceable
without a stay. The district court also ordered that security should be
provided by TFL for the amount of the judgment against JSA so as to
cover the risk that JSA paid over that amount but were then successful in
reversing the district court's judgment on any appeal that might be made.
There was an appeal and cross-appeal against the decision of the district
court, but only in unimportant respects, rendered wholly insignificant by
the withdrawal of those appeals in consequence of an undertaking given
by JSA to the deputy judge on 21 December 1989. We are told that the
trial of JSA's claim in Holland is now fixed for hearing on 11 March 1991.
In the Dutch proceedings TFL have therefore signed judgment against JSA
for the amount of the principal debt together with interest. In the English
proceedings TFL have recovered judgment against I. for the amount
due under the guarantee with interest, but are subject to the Mareva
injunction granted by the deputy judge in aid of JSA's counterclaim in the
Dutch proceedings. Because Otton J varied that order the appeals to this
court are in form against both orders, but TFL accept that if they are to
succeed they must show that the deputy judge lacked jurisdiction to order
the injunction both under art 24 of the Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters (Brussels, 27
September 1968; EC 46 (1978); Cmnd 7395) and under s 25 of the Civil
Jurisdiction and Judgments Act 1982.
It is convenient at this stage to set out the relevant statutory provisions,
all of which are contained in or are scheduled to the 1982 Act.
Section 1(1), relating to the interpretation of references to the
conventions in contracting states, provides, so far as material:
'"the 1968 Convention" means the Convention on jurisdiction and the
enforcement of judgments in civil and commercial matters (including
the Protocol annexed to that Convention), signed at Brussels on 27th
September 1968...
"the Accession Convention" means the Convention on the accession to
the 1968 Convention and the 1971 Protocol of Denmark, the Republic of
Ireland, and the United Kingdom, signed at Luxembourg on 9th October
1978...
"the Conventions" means the 1968 Convention, the 1971 Protocol and the
Accession Convention.'
I shall likewise refer to those conventions in the same terms.
Subsection (3) of s 1 reads:
'In this Act "Contracting State" means -- (a) one of the original parties
to the 1968 Convention (Belgium, the Federal Republic of Germany,
France, Italy, Luxembourg and the Netherlands); or (b) one of the parties
acceding to that Convention under the Accession Convention (Denmark,
the Republic of Ireland and the United Kingdom), being a state in respect
of which the Accession Convention has entered into force in accordance
with Article 39 of that Convention.'
Section 2 of the 1982 Act provides that the conventions are to have the
force of law. It says:
'(1) The Conventions shall have the force of law in the United Kingdom,
and judicial notice shall be taken of them.
(2) For convenience of reference there are set out in Schedules 1, 2 and 3
respectively the English texts of -- (a) the 1968 Convention as amended
by Titles II and III of the Accession Convention; (b) the 1971 Protocol as
amended... (c) Titles V and VI of the Accession Convention (transitional
and final provisions), being texts prepared from the authentic English
texts referred to in Articles 37 and 41 of the Accession Convention.'
I mention in passing that Mr Spearman underlines by reference to a
dictum of Lord Diplock in The Hollandia [1982] 3 All ER 1141 at 1145,
[1983] 1 AC 565 at 572 the fact that provisions such as s 2(1) are to be
treated as if they were part of directly enacted statute law.
Section 3 of the 1982 Act in relation to interpretation of the convention
says by sub-s (3):
'Without prejudice to the generality of subsection (1) [which refers to
decisions of the European court], the following reports... namely --
(a) the reports by Mr P Jenard on the 1968 Convention... and (b) the
report by Professor Peter Schlosser on the Accession Convention, may
be considered in ascertaining the meaning or effect of any provision of
the Conventions and shall be given such weight as is appropriate in the
circumstances.'
Section 25 (which is at the heart of this appeal) refers, as the sidenote
indicates, to: 'Interim relief in England and Wales and Northern Ireland in
the absence of substantive proceedings.' It provides, so far as material:
'(1) The High Court in England and Wales or Northern Ireland shall have
power to grant interim relief where -- (a) proceedings have been or are to
be commenced in a Contracting State other than the United Kingdom or
in a part of the United Kingdom other than that in which the High Court
in question exercises jurisdiction; and (b) they are or will be proceedings
whose subject-matter is within the scope of the 1968 Convention as
determined by Article 1 (whether or not the Convention has effect in
relation to the proceedings).
(2) On an application for any interim relief under subsection (1) the court
may refuse to grant that relief if, in the opinion of the court, the fact that
the court has no jurisdiction apart from this section in relation to the
subject-matter of the proceedings in question makes it inexpedient for the
court to grant it...
(7) In this section "interim relief", in relation to the High Court in England
and Wales or Northern Ireland, means interim relief of any kind which
that court has power to grant in proceedings relating to matters within its
jurisdiction, other than -- (a) a warrant for the arrest of property; or (b)
provision for obtaining evidence.'
I pass then to Sch 1, relating to the 1968 Convention, art 1 of which
provides:
'This Convention shall apply in civil and commercial matters whatever
the nature of the court or tribunal. It shall not extend, in particular, to
revenue, customs or administrative matters. The Convention shall not
apply to:
(1) the status or legal capacity of natural persons, rights in property
arising out of a matrimonial relationship, wills and succession;
(2) bankruptcy, proceedings relating to the winding up of insolvent
companies or other legal persons, judicial arrangements, compositions
and analogous proceedings;
(3) social security;
(4) arbitration.'
It may be noted in passing that Title II is concerned with jurisdiction.
Contained in that title is s 9 relating to provisional, including protective,
measures. The first article is art 24, which reads as follows:
'Application may be made to the courts of a Contracting State for such
provisional, including protective, measures as may be available under the
law of that State, even if, under this Convention, the courts of another
Contracting State have jurisdiction as to the substance of the matter.'
Title III which then follows is concerned with recognition and
enforcement.
When one comes to Sch 3 to the 1982 Act the first provision of Title V
of the Accession Convention relating to transitional provisions is art 34,
which, so far as material, reads thus:
'(1) The 1968 Convention and the 1971 Protocol, with the amendments
made by this Convention, shall apply only to legal proceedings instituted
and to authentic instruments formally drawn up or registered after the
entry into force of this Convention in the State of origin and, where
recognition or enforcement of a judgment or authentic instrument is
sought, in the State addressed...
(3) Moreover, as between the six Contracting States to the 1968
Convention and the three States mentioned in Article 1 of this
Convention, and as between those three States, judgments given after
the date of entry into force of this Convention between the State of origin
and the State addressed in proceedings instituted before that date shall
also be recognised and enforced in accordance with the provisions of
Title III of the 1968 Convention as amended if jurisdiction was founded
upon rules which accorded with the provisions of Title II, as amended,
or with provisions of a convention concluded between the State of origin
and the State addressed which was in force when the proceedings were
instituted.'
The only other provision of the 1982 Act which it is necessary to notice
is Pt II of Sch 13, which says with reference to s 16 and Sch 4 that
those provisions 'shall not apply to any proceedings begun before the
commencement of that section'.
In relation to the statutory provisions, the salient dates are these
three: on 18 February 1986 JSA's action was commenced against TFL in
Rotterdam; on 1 November the Accession Convention amending the 1968
convention came into force in the Netherlands; on 1 January 1987 s 25
of the 1982 Act came into force and the Accession Convention came into
force as between the United Kingdom and the Netherlands.
The deputy judge held as to the Mareva injunction: (1) that JSA had a
good arguable case in Holland against TFL; and (2) that there would be a
serious risk that, if the order were not made, the sum of £ 605,000 then
in court would disappear long before JSA obtained judgment in Holland.
Against these findings there is no appeal.
About the jurisdiction of the court to grant the relief sought by way of
injunction, the deputy judge said this:
'Article 24 of the Brussels Convention was incorporated into the law of this
country by the [1982 Act] with effect from 1 January 1987.'
He then read art 54 of the convention and said:
'There is a note, however, that this applied only to the original contracting
states. The United Kingdom's position is governed by art 34 of the
Accession Convention [which he read and then continued:] The state
of origin must equate to Holland which was a party long before the
proceedings commenced there. But enforcement of a judgment is not
sought in this application. Mareva injunctions are procedural matters
in aid of enforcement. Section 2 of the 1982 Act provides that the
convention shall have judicial force at least from 1 January 1987. It is
clear from Sch 13 to the 1982 Act that many sections, eg s 19, apply to
judgments. The inference is that provisions such as art 24 shall apply
to applications made after 1 January 1987, even in actions commenced
before that date. No authorities have been cited to me or detailed
argument presented but I consider that I am not barred from making the
order sought by the fact that proceedings were commenced before the
convention came into force in the United Kingdom.'
Mr Lyon accepts that the decision of the deputy judge cannot be
supported on the grounds given in his judgment, because the Dutch
proceedings were begun before the 1968 convention was amended by the
Accession Convention.
The issue is whether or not s 25 of the 1982 Act conferred jurisdiction
on the English High Court to grant interim relief in aid of the Dutch
proceedings. The power to grant interim relief plainly includes a Mareva
injunction. In the language of sub-s (1)(a) of s 25 'proceedings have been
commenced... in a Contracting State', that is in the Netherlands; and in
the language of para (b) 'they are... proceedings whose subject-matter is
within the scope of the 1968 Convention as determined by Article 1', since
they involve a commercial matter, not exempted from the scope of that
article.
For TFL Mr Spearman first submits that s 25(1) was enacted to enable
the English courts to exercise the powers contained in art 24 of the 1968
Convention (as amended) and to override the decision in The Siskina
[1977] 3 All ER 803, [1979] AC 210 in the cases to which the section
applies. The submission is succinctly supported by the comment of Kerr
LJ in Babanaft International Co SA v Bassatne [1989] 1 All ER 433 at 442,
[1990] Ch 13 at 30 when he said:
'Without legislation this provision [art 24] could not have been used by
our courts to grant, for instance, Mareva injunctions over assets situated
in this country in aid of substantive proceedings pending in other EEC
jurisdictions. To do so would have been contrary to the decision of the
House of Lords in Siskina (cargo owners) v Distos Cia, The Siskina [1977]
3 All ER 803, [1979] AC 210. This had held that, unless our courts were
properly seised of the substance of an action, there was no jurisdiction to
grant a Mareva injunction over assets in this country in aid of proceedings
abroad. The reversal of The Siskina and adherence to art 24 was achieved
by s 25 of the 1982 Act.'
But it is to be noted that there is no suggestion in that or in any other
passage upon which Mr Spearman has relied that those were, or can be
shown to have been, the only purposes for which s 25 was enacted.
In furtherance of his main theme, Mr Spearman set up arguments
designed to show that, although s 25 extends to proceedings not
covered by the conventions, in relation to those which are the section
should be treated as circumscribed by the conventions. In essence, TFL
contend that because one of the main purposes of s 25 was to enable
the English courts to give effect to art 24 by providing interim relief in
aid of substantive proceedings in contracting states, it should not in
such countries be construed as doing more than that. Since the section
admittedly applies to extraneous proceedings, I can see no logical reason
for expecting the scope of the section to be thus confined when it is
applied to convention proceedings. But I must refer briefly to each of the
arguments relied on in support of his theme.
Orally before this court Mr Spearman deployed four main arguments.
First, he relied on Re Harrods (Buenos Aires) Ltd [1991] 4 All ER 334,
[1991] 3 WLR 397. He contended that the case demands uniformity of
jurisdiction in contracting states. I do not so read it. The Lords Justices in
that case made a number of comments in the course of their judgments
which were directed to the circumstances of the particular case before
them and not intended, as I apprehend, to be wider in scope than
necessary. In that case there were two Swiss shareholders in a company
which, though registered in England, had always carried on business
in Argentina. The minority shareholder brought a petition under the
Companies Act 1985 and the Insolvency Act 1986 alleging that the affairs
of the company had been conducted in a manner unfairly prejudicial to
that shareholder. The issue was whether the 1986 convention deprived
the English court of jurisdiction to stay the petition on the ground of
forum non conveniens, since the company was domiciled here as well
as in Argentina. The Court of Appeal held in these circumstances that
the exercise of that discretionary power, when the preferred forum was
the court of a non-contracting state, was not inconsistent with the 1968
convention. So far from insisting on uniformity of jurisdiction, the court,
since it was not precluded by the 1968 convention from applying the
peculiarly English principle of forum non conveniens, regarded itself as
entitled to do so.
Secondly, Mr Spearman relied on art 34(1) as excluding legal proceedings
brought before the coming into force of the 1968 convention. But
although art 34(1) does indeed require the United Kingdom to provide
interim measures, it does not, in my judgment, inhibit the United
Kingdom from providing interim measures in relation to earlier
proceedings. By force of art 34(3) the provisions of the convention
relating to the enforcement of judgments do apply to cases where
proceedings were commenced before the entry into force of the Accession
Convention between the contracting states, but where judgment is given
afterwards, provided that the proceedings would have been within the
convention if they had been started later. There is, therefore, nothing in
the conventions which requires s 25 to be limited in the way for which Mr
Spearman contends.
Thirdly, although he argues that s 25 would not be expected to have a
wider effect than is required to implement the 1968 convention, there
are several respects in which it indisputably did have such an effect.
The section applies to proceedings that are purely domestic. It does
not depend, as does the 1968 convention, on proceedings involving
international obligations, or on the domicile of the defendant in a
contracting state: see O'Malley and Layton on European Civil Practice
(1989) p 1012, para 43.06. So Parliament has, in Mr Lyon's word
'improved' on art 24 in the sense of giving the court by s 25 wider powers
to grant relief than is required by art 24. That is made express by the
words in brackets at the end of s 25(1)(b) of the 1982 Act '(whether or
not the Convention has effect in relation to the proceedings)'. As Mr Lyon
observes, the parenthesis does not begin with the words 'but only if'.
Although Mr Spearman does not in fact ask the court to read the section
so restrictively, it identifies his difficulty, because he has to acknowledge
that the section is in some respects wider than art 24 but then to contend
that it is, however, not so much wider as will give it the effect which
Parliament appears, from the language used, to have intended.
Mr Spearman's fourth main argument was that s 25 should be construed
as fulfilling the obligations of the United Kingdom imposed by art 24.
He contended that the effect of reading into s 25(1) the definition of
'Contracting State' in s 1(3) demonstrated that it is only to proceedings
that have been commenced after a contracting state has become a state
in respect of which the Accession Convention has entered into force that
s 25(1) applies. Elaborated in this way, the material part of s 25 would
read:
'(a) Proceedings have been... commenced in [the Netherlands, being
a state in respect of which the Accession Convention has entered into
force]...'
For my part I cannot see that this process produces any such result
as Mr Spearman contends for: it simply requires that the Netherlands
should be such a state when the power to grant interim relief is exercised.
Nor does the use of the term 'contracting state' wed the section to the
1968 convention without the opportunity of extending further the scope
of the section. The reality is, in my judgment, best presented by the
Jenard report ((1979) OJ C59, p 42) when it says of art 24, in a passage
conveniently set out in O'Malley and Layton on European Civil Practice
(1989) para A1.185, pp 1615-1616:
'In each State, application may therefore be made to the competent
courts for provisional or protective measures to be imposed or suspended,
or for rulings on the validity of such measures, without regard to the rules
of jurisdiction laid down in the Convention.
As regards the measures which may be taken, reference should be made
to the internal law of the country concerned.'
It is with the second of those sentences that the court is most concerned
because, when that enjoinder is carried out, Mr Spearman's arguments
begin to founder.
He relied separately and, so to say, by incorporation on further arguments
specified in his skeleton argument. In justice to them I shall consider
them separately, although inevitably some of them overlapped with those
of his oral arguments that I have already considered.
Mr Spearman relied on the comment of Kerr LJ elsewhere in the Babanaft
case [1989] 1 All ER 433 at 442, [1990] Ch 13 at 29 that the main reason
for the importance of the 1968 convention in the context with which the
Court of Appeal was concerned --
'lies in the fact that it contains the most extensive code evidencing
international reciprocity in the recognition and enforcement of judgments
and orders issued in foreign jurisdictions, and that it includes art 24
dealing with provisional and protective measures.'
The context with which the court was there concerned was equivalent in
the present case to recognition and enforcement by the Dutch court of the
orders now appealed from. The comment goes no further than to raise
the expectation that on the basis of reciprocity the Dutch court would
recognise and enforce those orders.
Secondly, Mr Spearman submitted that s 25 ought not to be construed
as being in conflict with the powers under the convention, circumscribed
as they are by art 34(1). But the fact that that is the effect of the
convention constitutes no warrant for construing the powers given by s
25 as similarly circumscribed nor for regarding them, because they are
expressed to be more extensive, as 'in conflict' with the convention.
Thirdly, Mr Spearman observed that the conventions are so framed that
they do not apply to the Dutch proceedings. To that the short answer is
that s 25 is not so framed that it does not.
Fourthly, Mr Spearman submitted that art 24 is designed to achieve
harmonisation of jurisdiction even if not of remedies. For that he cited
the dictum of Staughton LJ in Republic of Haiti v Duvalier [1989] 1 All ER
456 at 463, [1990] 1 QB 202 at 213. But what his Lordship meant is plain
from what he said:
'... it seems to me that the convention requires each contracting state
to make available, in aid of the courts of another contracting state, such
provisional and protective measures as its own domestic law would
afford if its courts were trying the substantive action. That would be
harmonization of jurisdiction, although not of remedies.' (Staughton LJ's
emphasis.)
That suggests that it is for each contracting state to provide in aid of
another contracting state such remedies as would be available if its court
was trying the substance of the case: that is not to say that the court is
to provide no wider remedy than the court of the other contracting state
would provide.
Fifthly, in submitted that s 25 should be construed as intended to carry
out the international obligations of the United Kingdom under the
conventions, Mr Spearman cited Garland v British Rail Engineering Ltd
[1982] 2 All ER 402 at 415, [1983] 2 AC 751 at 771 in which Lord Diplock
did indeed observe that the relevant provision should be construed 'as
intended to carry out the obligation and not to be inconsistent with it'.
Article 25 carries out the obligation: that the section is wider in effect
does not render it inconsistent.
Sixthly, Mr Spearman submitted that it is a surprising and undesirable
result, which overrides the scheme and spirit of the conventions, if s 25
applies to proceedings commenced before the conventions came into
force. For my part, I see nothing inconsistent, or at variance, with the
conventions in making the section available in aid of earlier proceedings
than those to which it would have to apply if the expectations of art 24
were to be fulfilled.
Finally, Mr Spearman relied on the remark in O'Malley and Layton on
European Civil Practice para 43.06, p 1012 in which, in the passage to
which I have already alluded, they say:
'Because the section is expressed to apply whether or not the Convention
applies to the proceedings, the jurisdiction to grant interim relief is not
dependent on the proceedings having an international character, nor on
the defendant being domiciled in a Contracting State.'
Mr Spearman argued that it is only in these respects that s 25 is not
co-extensive with s 2 and art 24. But again, there is no suggestion that
these are the only respects in which the jurisdiction is not limited in the
way that it would have been had the convention applied. In summary,
the fact that jurisdictions are intended to be 'harmonised' (in so far as
they are), does not mean that there must be uniformity of remedy: it
means that the courts of each contracting state should provide the same
interim relief in aid of the courts of other contracting states as they
would provide in exercise of their own jurisdiction when dealing with the
substantive dispute. The clear words of s 25 should therefore not be read
as diminished in the way contended for by Mr Spearman.
Since the source of the English court's jurisdiction is not art 24 but s
25, there is no reason why it should not be wider than the article would
confer. That it is wider is plain from the concluding words of s 25(1)
(which I have earlier read) as well as from the scope of the prospective
extensions of jurisdiction by Order in Council contemplated by s 25(3).
There is also force in Mr Lyon's submission that if TFL's argument were
correct, they would be enabled to avoid enforcement of a Dutch judgment
by making away with the substantial sum in court, notwithstanding
the intention manifested by art 34(3) of the Accession Convention that
judgments given after it comes into force should be enforceable in
proceedings instituted before that date.
I accept Mr Lyon's submissions that it is clear from the language of
s 25(1) (using the words 'have been commenced') that it applies to
proceedings already under way when the section comes into force.
By necessary implication from Sch 13, Pt II, which says that certain
provisions (not including s 25) do not apply to proceedings commenced
before those provisions came into force, it follows that the remaining
provisions do apply to proceedings commenced before the remaining
provisions came into force, although Mr Spearman submits that that
relates back no further than to the coming into force of the Accession
Convention in relation to the Netherlands on 1 November 1986. There is
in any event a presumption that provisions concerned with new remedies
are to be regarded as matters of procedure, and so are to be construed
as retrospective unless Parliament has shown a clear intention to the
contrary. No such intention has been shown here, and I do not regard the
relevant provisions as so exclusively concerned with jurisdiction as would
make that principle inapplicable.
In my judgment the deputy judge had jurisdiction to make the order that
he did, albeit for reasons other than those upon which he relied. I would
therefore dismiss the appeal, and leave in place the Mareva injunction
made by him as varied by Otton J. The result is not unjust: it will merely
relieve TFL pro tanto of any temptation to put it out of their power to
meet any judgment of the Dutch court that may be given against them
later this year.
JUDGMENTBY-2: NOURSE LJ
JUDGMENT-2:
NOURSE LJ: I agree that the appeal must be dismissed for the reasons
given in the judgment of Leggatt LJ. The words of s 25(1) of the Civil
Jurisdiction and Judgment Act 1982 being clear and unambiguous in
themselves and their operation not being restricted on any of the grounds
relied upon by Mr Spearman, there can be no doubt that that provision
conferred power to grant the Mareva injunction in support of the Dutch
proceedings which was granted by the learned deputy judge and later
varied by Otton J.
JUDGMENTBY-3: PURCHAS LJ
JUDGMENT-3:
PURCHAS LJ: I also agree that this appeal should be dismissed for the
reasons given in the judgments already delivered. The wording of s
25 of the Civil jurisdiction and Judgments Act 1982, as relevant to this
appeal, gave power to the High Court to grant interim relief in the case of
proceedings which had been commenced in a contracting state other than
the United Kingdom without any limit to the retrospective operation of the
power.
It has been submitted that the section should be read to include a limiting
provision in terms such as 'but not to legal proceedings instituted before
the accession of the United Kingdom'. The bases for this contention
were the provision of art 34 of the Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters (Brussels,
27 September 1968; EC 46 (1978); Cmnd 7395) (to which reference
has already been made) which, by virtue of s 2(1) of the 1982 Act, have
the force of law in the United Kingdom. The provisions of that article
which limit the application of the convention to proceedings instituted
after accession justify by way of implication, in the wording of s 25, the
additional limitation to which I have referred.
I see no reason to read the provisions of the article of the convention
other than dealing with the application of the convention itself and in no
way purporting to limit the powers of the governments of the contracting
states from assuming powers in relation to proceedings instituted before
their accession. As has been said already, the wording of s 25 of the Act
is totally clear, and I see no reason in any way to qualify it in the way that
the appellants sought so to do in this appeal.
DISPOSITION:
Appeal dismissed.