“Choice of applicable law: displacement of general rule. 12 (1) If it appears, in all the circumstances, from a comparison of— (a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and (b the significance of any factors connecting the tort or delict with another country, that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country. (2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events.”
“In the terminology of section 12 of PILA, the most significant factor that relates to the two parties is the pre – existing relationship of the L/C. Without that pre – existing contractual relationship, Kookmin cannot create the necessary connection between itself, as issuing bank, and Trafigura, as beneficiary under the L/C, so as to give rise to the duties that Kookmin says are owed to it by Trafigura under Korean law. That factor connects the alleged tort to England because English law is the governing law of the pre – existing contractual relationship between the parties.”
“ In English law the tort of malicious proceedings is not at present generally available in respect of civil proceedings. It has only been admitted in a civil context a few special cases of abuse of legal process. Sometimes these cases are described as constituting a separate tort of abuse, but in my view Fleming, The Law of Torts, 9th ed. (1998), p. 687 is correct in observing that they "resemble the parent action too much to warrant separate treatment." The most important is malicious presentation of a winding up order or petition in bankruptcy: Johnson v. Emerson (1871) L.R. 6 Ex. 674; Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674. In Quartz Brett L.J. justified the rationale of this special case on the ground that the defendant is "injured before he can show that the accusation made against him is false; he is injured in his fair name, even though he does not suffer a pecuniary loss": at 684. He drew a contrast: "it is not like an action charging a merchant with fraud, where the evil done by bringing the action is remedied at the same time that the mischief is published, namely at trial": at 684-685. It has long been recognised to be an actionable wrong to procure the issue of a search warrant without reasonable cause and with malice: Gibbs v. Rea[1998] A.C. 786. In Roy v. Prior [1971] A.C. 470the House of Lords allowed an action by a plaintiff to proceed where the plaintiff alleged that the obtaining ex parte of a bench warrant, and his arrest, was an abuse of process inasmuch as the solicitor responsible acted without reasonable cause and maliciously. An action in tort will also be available for setting in train execution against property without reasonable cause and maliciously: Clissold v. Cratchley [1910] 2 K.B. 244. These instances may at first glance appear disparate but in a broad sense there is a common feature, namely the initial ex parte abuse of legal process with arguably immediate and perhaps irreversible damage to the reputation of the victim. There is another instance of a recognised head of actionable abuse of process, namely the malicious arrest of a ship: The Walter D Wallet [1893] P. 202. In such a case the loss is merely financial. Moreover, the arrest can be lifted almost immediately upon giving of security for the claim. Such claims are a rarity. The traditional explanation for not extending the tort to civil proceedings generally is that in a civil case there is no damage: the fair name of the defendant is protected by the trial and judgment of the Court. The theory that even a wholly unwarranted allegation of fraud in a civil case can be remedied entirely at trial may have had some validity in Victorian times when there was little publicity before the trial: see Little v. Law Institute of Victoria [1990] V.R. 257. However realistic this view may have been in its own time, it is no longer plausible. In modern times wide dissemination in the media of allegations in litigation deprive this particular reason for a restricting the tort to a closed category of special cases of the support of logic or good sense. It is, however, a matter for consideration whether the restriction upon the availability of the tort in respect of civil proceedings may be justified for other reasons.”
“Nevertheless, for essentially practical reasons I am not persuaded that the general extension of the tort to civil proceedings has been shown to be necessary if one takes into account the protection afforded by other related torts. I am tolerably confident that any manifest injustices arising from groundless and damaging civil proceedings are either already adequately protected under other torts or are capable of being addressed by any necessary and desirable extensions of other torts. Instead of embarking on a radical extension of the tort of malicious prosecution I would rely on the capacity of our tort law for pragmatic growth in response to true necessities demonstrated by experience.”
“It was long ago held that an action on the case would lie for malicious prosecution, ending in imprisonment under the writ de excommunicato capiendo in the spiritual Court: Hocking v Matthews 1 Ventris 86. It can, therefore, hardly be denied that it would have lain for malicious arrest of a person by Admiralty process in the days when Admiralty suits so commenced just as for malicious arrest on mesne process at common law. But if for arrest of a person by Admiralty process, why not for arrest of a person’s property? I can imagine no answer… ”
“Following Integrated and the other pre-Rule E(4)(f) cases, we believe that an attachment may be vacated only in certain limited circumstances….We therefore hold that, in addition to having to meet the filing and service requirements of Rules B and E, an attachment should issue if the plaintiff shows that 1) it has a valid prima facie admiralty claim against the defendant; 2) the defendant cannot be found within the district; 3) the defendant's property may be found within the district; and 4) there is no statutory or maritime law bar to the attachment. Conversely, a district court must vacate an attachment if the plaintiff fails to sustain his burden of showing that he has satisfied the requirements of Rules B and E. We also believe vacatur is appropriate in other limited circumstances. While, as we have noted, the exact scope of a district Court's vacatur power is not before us, we believe that a district Court may vacate the attachment if the defendant shows at the Rule E hearing that 1) the defendant is subject to suit in a convenient adjacent jurisdiction; 2) the plaintiff could obtain in personam jurisdiction over the defendant in the district where the plaintiff is located; or 3) the plaintiff has already obtained sufficient security for the potential judgment, by attachment or otherwise. ”
“Using the less burdensome prima facie standard, Judge Wood explained that a proper Verified Complaint is all that is required to satisfy Rule B and to prevail against a Rule E(4) motion to vacate… Thus maritime plaintiffs are not required to prove their cases at this stage of a Rule E(4) hearing….TNT submitted a Verified Complaint in which it alleged a proper admiralty claim against FHT and fulfilled all of the other filing and service requirements of Rules B and E. Based on the prima facie standard approved by the Court of Appeals and employed by other District Courts, TNT’s maritime attachment satisfies the requirements of the admiralty rules that govern maritime attachment matters and is thus sufficient. ”
“It is difficult to find a claim for abuse of process in bringing an original libel as arising out of the original ‘cause of action’ under the restricted approach here stated, for the claim for abuse of process depends upon the outcome of the original proceeding. Even under the Civil Rules, which permit counterclaims arising out of wholly unrelated transactions, FR 13 (b) a claim for abuse of process in initiating an action is held premature and not available even as a permissive counterclaim to that action....Hence it would seem clear a fortiori that such a claim may not be brought in admiralty by cross-libel. ”
“While the Solomon court held that a claim of wrongful seizure would not lie at all as a cross-claim in admiralty, we do not decide that question. We merely hold that counter-security may not be required under Rule E(7) for such a claim. ”
“498. Maliciously procuring arrest of ship. A claim may be brought against a person who maliciously and without reasonable and probable cause procures, by means of Admiralty proceedings, the arrest of a ship, if the ship has been released and the proceedings have terminated in favour of the person aggrieved by the arrest 1. 1 Munce v Black (1858) 7 ICLR 475; Castrique v Behrens (1861) 3 E & E 709; Redway v McAndrew (1873) LR 9 QB 74; The Strathnaver(1875) 1 App Cas 58 at 67, PC; The Collingrove, The Numida (1885) 10 PD 158; The Walter D Wallet[1893] P 202 . As to proceedings terminating in favour of the claimant cf paras 468–469 ante. As to the practice in Admiralty see admiralty vol 1(1) (2001 Reissue) para 373 et seq.”
“But, in such an action, it is essential to show that the proceeding alleged to have been instituted maliciously and without probable cause has terminated in favour of the plaintiff, if from its nature it be capable of such termination. The reason seems to be, that, if in the proceedings complained of the decision was against the plaintiff, and was still unreversed, it would not be consistent with the principles on which law is administered for another court, not being a court of appeal, to hold that the decision was come to without reasonable and probable cause…….. It is averred, and we must on the demurrer assume that it is truly averred, that by the law of France the judgment in rem can only be obtained if the holder of the bill of exchange be a French subject, and a bona fide holder for value, and we must take it as admitted on this demurrer that Troteux, the French holder of the bill of exchange, by the fraudulent procurement of the defendants falsely represented to the French courts that he was holder for value when he was not. It is not necessary to say what would be the effect if it were stated that by the contrivance of the defendants the proceedings were such that the plaintiff had no opportunity to appear in the French courts and dispute the allegation. In the present case it is quite consistent with the averments in the declaration that the plaintiff had notice of the proceedings in France, and purposely allowed judgment to go by default, or even that he appeared in the French court, intervened and was heard, and that the very question whether Troteux was a holder for value was there decided against him. We think, on the principle laid down in Bank of Australasia v Nias (1851), 16 QB 717, that the plaintiff cannot impeach the judgment here on such grounds, and that whilst it stands unreversed this action cannot be maintained.”
“In my judgment Neuberger J's reasons for finding Judge Thompson's order one which should not be discharged are insufficient to justify the order which he made. First, Neuberger J said that the matters which were relied on for the good and arguable case applied in demonstrating that there was a real danger of the defendants dissipating their assets to defeat the judgment. I regret that I do not see that the judgment does support a conclusion that in the particular circumstances of Mr Tomlinson and Reyall there was a real risk of assets being dissipated. Mr Blackett-Ord submitted that it has now become the practice for parties to bring ex parte applications seeking a freezing order by pointing to some dishonesty, and that, he says, is sufficient to enable this court to make a freezing order. I have to say that, if that has become the practice, then the practice should be reconsidered. It is appropriate in each case for the court to scrutinise with care whether what is alleged to have been the dishonesty of the person against whom the order is sought in itself really justifies the inference that that person has assets which he is likely to dissipate unless restricted.”
“The purpose of disclosure is to make the freezing order effective. In the ordinary way a defendant is required to disclose all his assets above a certain value. This is because, if he can choose which assets to disclose he is likely to choose those which are the least available or accessible to the claimant for the purposes of execution. That is what the claimant says the defendants have done in this case. If there are assets which are more readily available, a claimant is entitled to be told what they are. In such circumstances a freezing order may be varied, so that particular assets are attached and others are released and, in this way, the order may be made more effective.”
“Nevertheless, this judge made rule cannot be allowed itself to become an instrument of injustice. It is for this reason that there must be a discretion in the court to continue the injunction, or to grant a fresh injunction in its place, notwithstanding that there may have been non-disclosure when the original ex parte injunction was obtained.”
“In one or two other recent cases coming before this court, I have suspected signs of a growing tendency on the part of some litigants against whom ex parte injunctions have been granted, or of their legal advisers, to rush to the R v Kensington Income Tax Comrs principle as a tabula in naufragio, alleging material non-disclosure on sometimes rather slender grounds, as representing substantially the only hope of obtaining the discharge of injunctions in cases where there is little hope of doing so on the substantial merits of the case or on the balance of convenience. Though in the present case I agree that there was some material, albeit innocent, non-disclosure on the application to Roch J, I am quite satisfied that the punishment would be out of all proportion to the offence, and indeed would cause a serious potential injustice if this court were, on account of such non-disclosure, to refuse to continue the injunction granted by Roch J on9 December 1986 .”