“ … here we have the unusual case where every preliminary indication is that the defendants, behind a façade of legitimacy, engaged in repeated acts of fraud and chicanery, and thereby perpetrated and continue to perpetrate a rather massive swindle.”
“At least$1billion of the$2.7billion loaned to Telsim by plaintiffs is unaccounted for, with some of it admittedly used for purposes other than those specified in the loan documents … and much of it seemingly diverted by defendants to the benefit of Uzan Association Enterprise.”
“The plaintiffs have clearly demonstrated that they are substantially likely to succeed on the merits of their claims, and have further demonstrated that very serious damage is likely to result if the requested relief is not granted.”
“At the hearing on the instant motion the plaintiff established, virtually without contradiction, that this Uzan controlled business empire [functions as an] ongoing enterprise with its own structures and hierarchy antedating and independent of the racketeering activities here alleged. Each Sunday night, key members of the Uzan family would sit down to a dinner meeting at which the key business decisions were made with respect to the entire enterprise, with individual members of the family, including the individual defendants here, then delegated to carry out the decisions … At the same time, even those individual members of the family who functioned as chief executive officers of particular business entities within the enterprise could not make major decisions without checking, not with their respective boards of directors (although those were also Uzan-controlled), but with the family hierarchy. … Each of the defendants here is associated with the enterprise, and in the case of the individual defendants played a dominant role; but the enterprise itself was considerably greater than, and distinct from, any or all of the defendants. By virtue of their respective roles, however, the defendants were in a position to conduct the affairs of the enterprise, as the evidence here showed, that conduct sometimes consisted of racketeering activities.”
“Certainly in a case where a contemnor not only fails wilfully and contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court’s authority if the order should be affirmed on appeal, the court must, in my opinion, have a discretion to decline to entertain his appeal against the order.”
“From those speeches it is, I think, clear that it is wrong to take as a starting point the proposition that the court will not hear a party in contempt but then to ask if the instant case falls within an exception to that general rule. It is preferable to ask whether, in the circumstances of an individual case, the interests of justice are best served by hearing a party in contempt or by refusing to do so, always bearing in mind the paramount importance which the court must attach to the prompt and unquestioning observance of court orders.”
“ … that, while the general rule is that a Court will not hear an application for his own benefit by a person in contempt unless and until he has first purged his contempt, there is an established exception to that general rule where the purpose of the application is to appeal against, or have set aside, on whatever ground or grounds, the very order disobedience of which has put the person concerned in contempt.”
“One can, of course, envisage, as he [Denning LJ] did in that case [Hadkinson v Hadkinson], circumstances in which the court would be unlikely to exercise its discretion in favour of hearing a contemnor – he instanced the case of an abuse of the process or of disobedience to the order impeding the course of justice – but I would not be in favour of laying down rules for the exercise of discretion, though it can do no harm to give examples which may serve as guidelines. For instance, where the appeal is grounded on an alleged lack of jurisdiction to make the order at all, it seemed, in general, right that the contemnor should be heard.”
“The courts need powers of punishment with which to enforce their orders. The ones they have at present are adequate. They do not need a power which deprives the litigant of his right to litigate. Indeed it seems to me that were the courts to refuse to allow those in contempt access to the courts simply on the grounds that they are in contempt, they could well be acting in breach of the provisions of Article 6.1 of the European Convention on Human Rights which entitles everyone to the determination of his civil rights by means of a fair and public hearing before an independent and impartial tribunal. The “everyone” in that Article is not subject to an exception in respect of people who are guilty of serious offences or contempt of court.”
“But the [Republic], when it launched the English proceedings did not know where the assets were located. One of its objects was to find out. The proceedings were started here because it was here that the information was available.”
“It is beyond question that the injunction granted by Knox J, and upheld by Leggatt J, was a most unusual measure, such as should very rarely be granted. But this case is most unusual. It is not the nature or strength of the republic’s cause of action which puts it in that category. What to my mind is determinative is the plain and admitted intention of the defendants to move their assets out of the reach of the courts of law, coupled with the resources they have obtained and the skill they have hitherto shown in doing that, and the vast amount of money involved. This case demands international co-operation between all nations. As the judge said, ‘If ever there was a case for the exercise of the court’s powers, this must be it’.”
“For an English court to enjoin a person properly subject to its jurisdiction from disposing of assets abroad cannot in this sense be regarded as exorbitant. Perhaps Republic of Haiti v Duvalier goes to the very edge of what is permissible. For the sole connection of England with that case was the presence in England of solicitors with access to the foreign assets. The exercise of jurisdiction can be justified on the basis that the solicitors could be treated as agents of the defendants and the relevant information was located in England.”
“It is a strong thing to restrain a defendant who is not resident within the jurisdiction from disposing of assets outside the jurisdiction. But where the defendant is domiciled within the jurisdiction such an order cannot be regarded as exorbitant or as going beyond what is internationally acceptable. To treat it as such merely because the substantive proceedings are pending in another country would be contrary to the policy which informs both Article 24 and section 25. Where a defendant and his assets are located outside the jurisdiction of the court seized of the substantive proceedings, it is in my opinion most appropriate that protective measures should be granted by those courts best able to make their orders effective. In relation to orders taking direct effect against the assets, this means the courts of the state where the assets are located; and in relation to orders in personam, including orders for disclosure, this means the courts of the state where the person enjoined resides.”
“I recognise that an ancillary jurisdiction ought to be exercised with caution, and that care should be taken not to make orders which conflict with those of the court seized with substantive proceedings. But I do not accept that interim relief should be limited to that which would be available in the court trying the substantive dispute; or that by going further we would be seeking to remedy defects in the laws of other countries. The principle which underlies Article 24 is that each contracting state should be willing to assist the courts of another contracting state by providing such interim relief as would be available if its own courts were seized of the substantive proceedings; see Alltrans Inc v Interdom Holdings Ltd[1991] 4 All ER 458 , 468 per Leggatt LJ. By going further than the Swiss courts were prepared to go in relation to a defendant resident outside Switzerland, we would not be seeking to remedy any perceived deficiency in Swiss law, but rather to supplement the jurisdiction of the Swiss courts in accordance with Article 24 and principles which are internationally accepted. In other areas of law such as cross-border insolvency, commercial necessity has encouraged national courts to provide assistance to each other without waiting for such co-operation to be sanctioned by international convention. International fraud requires a similar response. It is becoming widely accepted that comity between the courts of different countries requires mutual respect for the territorial integrity of each other’s jurisdiction, but that this should not inhibit a court in one jurisdiction from rendering whatever assistance it properly can to a court in another in respect of assets located or persons resident within the territory of the former.”
“It did not conflict with any order the Swiss court had made. It was made on terms which obviated any risk of conflict with any order made by any other court. It was made in personam against a defendant domiciled and resident here, and amenable to the enforcement of the order. It did not seek to assert jurisdiction over any person or any asset outside the territorial jurisdiction of the court. It gave rise to no jurisdictional disharmony or confusion. It promoted an object which might reasonably be assumed to find favour with the Swiss court by seeking to preserve funds which, if C.F.S.T.’s claim is well founded, Mr Cuoghi had dishonestly misappropriated and which would be needed to satisfy the judgment of the Swiss court.”
“I accept entirely that, as stated by the Lord Chief Justice in Cuoghi, at p.882 D, it would obviously weigh heavily and probably conclusively against the grant of interim relief if such grant would obstruct or hamper the management of the case by the primary court or give rise to a risk of conflicting, inconsistent or overlapping orders in other courts. However, in this case there is the unusual circumstance that Her Honour Judge Conlon in proceedings before her in Illinois clearly demonstrated lack of any concern that the exercise of the English courts’ powers to grant interim relief would impinge in any way upon the Illinois proceedings. In such a case, that is to say one where there is positive reason for the English court to proceed on the basis that the primary Court is well content that the application for ancillary relief should proceed in England and be determined by the English Court according to English principles, it does not seem to me that the consideration highlighted by the Lord Chief Justice need inhibit the English Court from granting relief if satisfied that it is otherwise appropriate and expedient to make an order.”
“ … it may be thought to weigh in favour of granting such relief that a defendant is present in this country and so liable to effective enforcement of an order made in personam, always provided that by granting such relief this court does not tread on the toes of the primary court or any other court involved in the case.”
“What then are the considerations here? Firstly, one defendant (D4) is resident within the jurisdiction with a substantial property here. The second defendant also has substantial property within the jurisdiction. More importantly, perhaps, all four were involved in fraudulent business together. All were directors. All were shareholders. All were engaged in the family meetings held on Sundays. I accept the submission made by Mr Leggatt that it is artificial to treat them other than as a unit. Taken together, these establish, in my judgment, significant connecting factors with the jurisdiction and certainly there is no other jurisdiction having significant connecting factors, at least on the information presently available other than the United States and Turkey. Furthermore, as I have already sought to elaborate, these defendants have jointly demonstrated a tenacious determination to keep their assets, including the Telsim shares from Motorola and/or the grasp of the New York courts. In addition, the New York judge has made a very strong finding on the strength of the claimant’s case on dishonesty. Viewed as a whole, it seems to me that the facts of this case are even stronger than Duvalier in crying out for some form of international co-operation. It is not even suggested, either by the defendants or, for what it is worth, the United States court, that the relief that has been sought and obtained in this jurisdiction in some way cuts across the US court. On the face of it, it is clearly and usefully supplementary. Accordingly, for all those reasons, I dismiss these applications.”
“ … a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not … It is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances.”
“ … there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.”
“If the total unencumbered value of the defendant’s assets in England and Wales does not exceed$200m . the defendant must not remove any of those assets from England and Wales and must not dispose of or deal with any of them. If the defendant has other assets outside England and Wales he may dispose of or deal with those assets outside England and Wales so long as the total unencumbered value of all those assets whether in or outside England and Wales remains above$200m .”
“the test is simply whether in all the circumstances it is just and convenient to make such an order.”
“It was agreed by those appearing before the court that the principles of English law which should be taken into account in this case, distinguished between acts of a magistrates court which were within its jurisdiction and those which were in excess of jurisdiction. The former were valid and effective unless or until they were overturned by a superior court, whereas the latter were null and void from the outset. It was further submitted that the appropriate test under English law for deciding whether or not magistrates acted within their jurisdiction was that laid down by the House of Lords in McC v Mullan. The third limb of that test was relevant to the instant case, namely that magistrates exceeded their jurisdiction when they made an order which had no foundation in law because of a failure to observe a statutory condition precedent.”
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