“37. As I understand it, the Claimant claims against me upon the basis that I was the vendor, which is denied, and was obliged to return the monies upon demand, or, if the purpose for which they were held ceased to exist (the proposed property transaction) together with any interest thereon. That is totally against any understanding of what was said and done but even on the assumption that the Claimant’s claim was actually correct, which it is not, I would also seek to argue (in the alternative) that, in accordance with Egyptian law, the property transaction was completed, and the payment of the full purchase price and Mr. Martin Shaw’s possession of the property for a number of years would seem to corroborate me in that assertion, and that the property was subsequently handed back to [Camarin] in settlement, or part settlement of debts Mr. Martin Shaw had with [Camarin].” (12) Accordingly, Mr. Hamed submits that “even assuming that virtually all the facts asserted by the Claimant are correct, this matter is inextricably and fundamentally bound up with the true and correct ownership of the property in Egypt”
“10. From that brief summary, it is impossible, in my judgement, to characterise the claim, whether in form or in substance, as one relating to title to foreign land. Everyone agrees that the purchase was never completed, and has now been onward sold. The Claimant is not raising a claim as owner of the apartment, nor is the Defendant saying in his defence that the apartment has been transferred. 11. It is well established that in personam claims are not covered by the exclusionary rule of jurisdiction. Thus, the English court can order specific performance of an agreement to sell foreign lands. That is not sought in this case, but I do not see any distinction in principle in this context between seeking completion by specific performance and seeking instead recovery of the purchase price of a property, the sale of which has not completed. Any judgment will have no effect on title, and will not involve the court adjudicating upon a disputed claim of title”
“Subject to the Brussels I Regulation and the Lugano Convention, the court has no jurisdiction to entertain proceedings for the determination of the title to, or the right to possession of, immovable property situated outside England, except where: a) the claim is based on a contract or equity between the parties; …”
“Given that the relevant proceedings, if allowed to be brought, will concern such questions quite as much as the question of the applicants’ right to possession of the properties concerned, in my judgment those proceedings would be concerned, but not principally concerned, with such right to possession. I consider that the purpose of s. 30(1) of the 1992 Act is to preserve the Mocambique rule only in cases where the real issue in the proceedings is the question of title to, or the right to possession of, foreign land, and all other questions are merely incidental thereto. Such is not this case.”
“It is clear that much of the underpinning of the Mocambique rule and the decision in Potter v Brokenhill Pty Co. Ltd. has been eroded. All that is left of the Mocambique rule (except to the extent that it is modified by the Brussels I Regulation) is that there is no jurisdiction in proceedings for infringement of rights in foreign land where the proceedings are “principally concerned with a question of the title to, or the right to possession of, that property”
“It is quite true that in the exercise of the undoubted jurisdiction of the Courts it may become necessary incidentally to investigate and determine the title to foreign lands; but it does not seem to me to follow that because such a question may incidentally arise and fall to be adjudicated upon, the Courts possess, or that it is expedient that they should exercise, jurisdiction to try an action founded on a disputed claim of title to foreign lands.”
“By these words I understand him to have meant that it is the action founded ona disputed claim of title to foreign lands over which an English Court has no jurisdiction, and that where no question of title arises, or only arises as a collateral incident of the trial of other issues, there is nothing to exclude the jurisdiction.”
“…it has long been accepted in England that an English court may, as between parties before it, give an in personam judgment to enforce contractual or equitable rights in respect of immovable property situated in a foreign country:…”
“They all depend upon the existence between the parties to the suit of some personal obligation arising out of contract or implied contract, fiduciary relationship or fraud, or other conduct which, in the view of the Court of Equity in this country, would be unconscionable, and do not depend for their existence on the law of the locus of the immovable property.”
“…where a plaintiff invokes the in personam jurisdiction of the English court against a defendant amenable to the jurisdiction and there is an equity between the parties which the court can enforce, the English court will accept jurisdiction and apply English law as the applicable law, even though the suit relates to foreign land. In contrast if the equity which is asserted does not exist between the parties to the English litigation, for example where there has been a transfer of the property to a third party with notice of an equity but by the lex situs governing the transfer, the transfer extinguished the plaintiff’s equity, the English court could not then give relief against the third party even though he is within the jurisdiction.”
“Private international law has moved on. Today we should treat the fact that the land is situated abroad as affecting the choice of law, not jurisdiction, if the case is one in which it is sought to enforce an equitable claim in personam.”