“In none of these cases was the question, whether the judgment sued upon here was obtained by fraud, litigated in a separate and second action in the foreign jurisdiction. Unless Egan J.’s decision is itself impeached for fraud, it is conclusive of the matter thereby adjudicated upon, namely, whether Costello J.’s judgment was obtained by fraud … Mr. Swift argued that if Mr. Parish’s and Mr. Waldie’s evidence had been tendered before Costello J. and had been rejected, it would still have been open to the defendants, in enforcement proceedings in this country, to set up an allegation, based upon that evidence, to the effect that Mr. Sacks had given perjured evidence and so procured his judgment by fraud. Why, then, should it make any difference that the evidence is adduced, and the issue contested in a second action in Ireland? The answer is that no question of fraud on the part of Mr. Sacks was in issue in the Costello action; it was in the Egan action.”
“no doubt whatever that, even if the judgment of Egan J. did not create an estoppel, it would be an abuse of process for the Waites to re-litigate the very same issue in the English courts upon which they failed in Ireland, not least because they themselves chose that forum, which was the natural forum in which to challenge the judgment of Costello J. They could, if they had wished, merely have waited for enforcement proceedings to be taken here and then attempt to set up fraud. They did not do so. They cannot try again here to obtain a different verdict.”
“20. The points are made by Mr Arden QC on the defendant’s behalf, first, that there is at present before the court no opinion on the meaning of the Spanish provision given by an independent expert. The opinions currently expressed on each side are from individuals who work for the law firms acting for each party. Secondly, the evidence which has been given is not subject to the CPR provisions governing expert reports and the duties imposed on experts under that regime. Those duties include, for example, the duty to draw attention to the range of opinions on an issue, including those which conflict with the expert’s own opinion. Thirdly, there is no full exegesis, and indeed the claimants’ evidence contains no real exegesis at all, of the legal methods which would be used to answer the relevant question of foreign law in the foreign legal system. In particular, there has been no full explanation of the applicable principles of statutory interpretation, the hierarchy of relevant legal sources, the status of decided cases and matters of that sort. Fourthly, I must recognise that the opinion given by the claimants’ lawyer is contradicted by an opposite opinion which is not simply a bare and unreasoned opinion but is one for which reasons have been provided. There has, at this stage, been no testing of the opinions of the witnesses on each side such as would occur through the court process, including a meeting between experts if the case proceeds to trial and, most importantly of course, the process of cross-examination. 21. I do not say that those difficulties automatically or necessarily would preclude the court from granting summary judgment. There may well be points on which foreign law is so clear and the opinion expressed by one lawyer is so clearly right and that expressed by the lawyer on the other side so obviously wrong that the points can be decided summarily. Indeed, I take the view, although the point is no longer live, that the argument based on article 55 of the Spanish Insolvency Act fell into that category. 22. However, I am unable to say that the remaining issue in this case is as straightforward as that … 25. In these circumstances, strong as I consider on the face of it the claimants’ case on the meaning of article 97.2 to be, I do not feel able to reach the conclusion on the material now before the court, with all the inherent limitations which that material has at this early stage of proceedings, that there is no real prospect of the defendant’s interpretation being accepted. I therefore do not consider that I can take the view that the argument is bound to fail and on that basis grant summary judgment to the claimants.”
“This distinction rests upon the fact that acts which are calculated to create or procure false evidence or to destroy evidence have an independent existence from, and are extraneous to, the evidence that may be given as to the consequences of those acts. It is unlikely that those who have fabricated or destroyed evidence would wish to enter the witness box for the purpose of admitting to their acts of fabrication or destruction. Their acts were done with a view to the giving of evidence not about the acts themselves but about their consequences. The position is different where the allegation relates to the content of the evidence or the content of statements made with a view to giving evidence, and not to the doing of an act such as the creation or the fabrication of evidence. The police officer who is alleged to have given false evidence that he found a brick or drug in the possession of the accused or that he heard an accused made a statement or a remark which was incriminating is protected because the allegation relates to the content of his evidence. He is entitled to the immunity because he was speaking as a witness, if he made the statement when he was giving evidence, or was speaking as a potential witness, if he made it during his preliminary examination with a view to his giving evidence.” iii) Lord Clyde said, at p 460-461 (emphasis added): “No immunity should attach to things said or done which would not form part of the evidence to be given in the judicial process. The reason for admitting to the benefit of the immunity things said or done without the walls of the court is to prevent any collateral attack on the witness and circumvention of the immunity he or she may enjoy within the court.”
“So far as the second purpose of the immunity is concerned, the desirability of avoiding repeated litigation on the same issue, that too has no relevance to the present case. In the event there was no concluded trial. The proceedings were stayed on the ground of an abuse of process. There is no decision against which a collateral attack can be made.” iv) Lord Hutton stated at p 469: “[T]he immunity in essence relates to the giving of evidence. There is, in my opinion, a distinction in principle between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence, such as the forging of a suspect’s signature to a confession or a police officer writing down in his notebook words which a suspect did not say or a police officer planting a brick or drugs on a suspect.”
“(i) the core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court; (ii) the core immunity also comprises statements of case and other documents placed before the court; (iii) that immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked; (iv) whether something is necessary is to be decided by reference to what is practically necessary; (v) where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial inquiry, there is no necessity to extend the immunity (emphasis added); vi) in such cases the principle that a wrong should not be without a remedy prevails.”
“I have real doubts as to whether English law recognises a tort of unlawful means conspiracy dishonestly to defend a claim through the production of forged documents in those proceedings. The extension of the tort of malicious prosecution to the initiation of civil proceedings is not without controversy (see the differing views in Willers v Joyce[2016] UKSC 43 ), and there is no tort of maliciously defending proceedings. Even if it is possible to overcome those difficulties through the tort of unlawful means conspiracy, further issues would arise as to whether the deployment of forged evidence at trial can provide the basis for a private law cause of action, or is a matter to be dealt with under the court’s jurisdiction (through strike-out or committal) or under the criminal law (cf. Marrinan v Vibart[1963] 1 QB 234 ).”
“When a writ is issued the rights of the parties are crystallised. The function of the litigation is to ascertain what those rights are and grant the appropriate remedy. The submission of the defendants in this case is that, notwithstanding this, one party’s conduct of the litigation can not only change that party’s substantive rights but do so retrospectively avoiding the contract ab initio. It cannot be disputed that there are important changes in the parties’ relationship that come about when the litigation starts. There is no longer a community of interest. The parties are in dispute and their interests are opposed. Their relationship and rights are now governed by the rules of procedure and the orders which the court makes on the application of one or other party. The battle lines have been drawn and new remedies are available to the parties. The disclosure of documents and facts are provided for with appropriate sanctions; the orders are discretionary within the parameters laid down by the procedural rules. Certain immunities from disclosure are conferred under the rules of privilege. If a party is not happy with his opponent’s response to his requests he can seek an order from the court. If a judgment has been obtained by perjured evidence remedies are available to the aggrieved party. The situation therefore changes significantly. There is no longer the need for the remedy of avoidance under section 17; other more appropriate remedies are available. The same points have been persuasively made by Callahan AJ sitting in the Supreme Court of Connecticut in Rego v Connecticut Insurance Placement Facility (1991) 593 A 2d 491, 497 . I recognise that it is possible for something to be done in the litigation which may amount to a contractual act; the delivery of pleadings and similar documents are a form of communication. Such communication can have a contractual significance which can and will still be given effect to. Thus it is possible by a pleading to repudiate a contract or accept a repudiation as terminating the contract. Similarly, a claim or defence may affect the substantive rights of a landlord and tenant inter se. But the acts and omissions of the assured relied upon by the defendants in the present case are not of that character. They are solely relevant as alleged failures to observe good faith under section 17. The section 17 principle is a principle of law and if its rationale no longer applies and if its operation, the conferment of a right of avoidance, ceases to make commercial or legal sense then it should be treated as having been exhausted or at the least superseded by the rules of litigation. It will also very often be the case that by the time the litigation has started the cover has expired or its subject matter has ceased to exist so as to make the continuing relationship of insurer and insured no longer current and the observation of good faith only significant to the litigation.”
“A court awarding costs in a civil action is entitled to have regard to all relevant matters, including the absence of any prospects of success and the state of mind in which it was pursued, when deciding what costs, and whether on an indemnity or standard basis; should be recoverable. To permit litigation about these issues after the close of an unsuccessful action would be to invite or risk re-litigation of issues which were or could have been decided in the first action. And in so far as the costs assessed by a costs judge are not likely to or may not enable full recovery of all costs incurred, the reason is likely to be that the costs incurred were not in the eyes of the law necessary, reasonable or proportionate in the context of the issues. To allow a claim for their recovery in a separate action for malicious pursuit of the original action would in each of these cases run contrary to the general policy of the law regarding costs.”
“That absolute privilege attaches to words spoken or written in the course of giving evidence in proceedings in a court of justice is a rule of law, based on public policy, that has been established since earliest times. That the like privilege extends to evidence given before tribunals which, although not courts of justice, nevertheless act in a manner similar to that in which courts of justice act, was established more than a hundred years ago by the decision of this House in Dawkins v. Lord Rokeby (1875) L.R. 7 H.L. 744 … The kind of tribunal in which the evidence of witnesses is entitled to absolute privilege was described by Lord Atkin in O’Connor v Waldron[1935] AC 76 , 81, as a tribunal which ‘has similar attributes to a court of justice or acts in a manner similar to that in which such courts act.’”
“first, under what authority the tribunal acts, secondly the nature of the question into which it is its duty to inquire; thirdly the procedure adopted by it in carrying out the inquiry; and fourthly the legal consequences of the conclusion reached by the tribunal as a result of the inquiry”
“When in Trapp v. Mackie [1979] 1 W.L.R. 377, 379 Lord Diplock referred to a tribunal acting ‘in a manner similar to courts of justice’ and Lord Fraser of Tullybelton at p. 385G to tribunals having ‘similar attributes’ to courts of justice, I think that they must have had a wider concept in mind which would embrace courts of justice operating both under common law and under civil law procedures.”
“98. Decisions of co-ordinate Courts. There is no statute or common law rule by which one Court is bound to abide by the decision of another Court of co-ordinate jurisdiction. Where, however, a judge of first instance after consideration has come to a definite decision on a matter arising out of a complicated and difficult enactment, the opinion has been expressed that a second judge of first instance of co-ordinate jurisdiction should follow that decision; and the modern practice is that a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance unless he is convinced that that judgment was wrong. … It is undesirable that different judges of the same division should speak with different voices.”
“The policy rationale for witness immunity, as articulated by the Supreme Court in Briscoe, applies with equal or near equal force in the arbitral context: ‘[T]he truth finding process is better served if the witness’s testimony is submitted to ‘the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies.’”
“I agree with the judge that the principle in the Abouloff case in its extreme formulation should not be extended to arbitration awards but would put the matter a little differently but only in degree. I would suggest that the reason why the Abouloff principle should not be extended to foreign arbitration awards is first that an arbitration award is an award from the tribunal chosen by the parties to decide their dispute; that will very often not be the case either when a domestic or a foreign judgment has been obtained. Second, there is thus a logic in placing foreign arbitration awards into the same category as domestic arbitration awards and not into the same category as foreign judgments.”
“Mr Hayward’s deceitful conduct was intended to influence the mind of the insurers, not necessarily by causing them to believe him, but by causing them to value his litigation claim more highly than it was worth if the true facts had been disclosed, because the value of a claim for insurers’ purposes is that which the court is likely put on it.”
“In modern terms, we can perhaps regard the action to set aside a judgment for fraud as akin to an action for deceit. The only significant differences are that the court, rather than the opposing party to the first action, has to be shown to have been deceived, deliberate dishonesty is required, and materiality rather than simple reliance must be shown. If the elements are made out (misrepresentation or misleading conduct, made or undertaken fraudulently, with reliance for deceit and materiality for an action to set aside a judgment), the contract or the judgment can be rescinded or set aside.”
“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which— (a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents, the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates. (2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to— (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A— (i) the date on which any such facts did become known to him, and (ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and (c) the extent to which, having regard to the delay, relevant evidence is likely— (i) to be unavailable, or (ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.” (a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents, the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates. (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A— (i) the date on which any such facts did become known to him, and (ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and (c) the extent to which, having regard to the delay, relevant evidence is likely— (i) to be unavailable, or (ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.”
“There is a crucial difference between cases where the defendant induces a contracting party not to perform his contractual obligations and cases where the defendant prevents a contracting party from carrying out his contractual obligations. In inducement cases the very act of joining with the contracting party and inducing him to break his contract is sufficient to found liability as an accessory. In prevention cases the defendant does not join with the contracting party in a wrong (breach of contract) committed by the latter. There is no question of accessory liability. In prevention cases the defendant acts independently of the contracting party …”
“Where a State comprises several territorial units, each of which has its own rules of law in respect of non-contractual obligations, each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Regulation.” iii) This raises the issue of whether the DIFC can be regarded as a “territorial unit” of the UAE with “its own rules of law in respect of non-contractual obligations”
“Malicious prosecution: UAE law. Although there is no UAE law tort of malicious prosecution specifically so called, such acts would nevertheless give rise to liability.”
“Malicious prosecution (a) Applicable law. Damage occurred where the costs were incurred. That is onshore Dubai, where the Bank signed the retainers and paid the fees. UAE law applies. (b) No tort. Ds do not maintain the position that malicious prosecution is not actionable in UAE law. Third Hadef Letter makes clear that it is. (c) Loss. No reason why Cs should not be entitled to costs as damages. Damages at §59.6 (malicious prosecution in Tenancy/Possession Proceedings) also claimed against PCB Ds under overarching conspiracy.”
“…this form of estoppel by conduct is one which is approached by means of a broad, merits-based assessment, and is not constrained by strict rules (as, for example, issue estoppel). The matters to consider include, but are not limited to, those enumerated by Ginsburg J in the New Hampshire case. It is material to ask the question whether it is apparent that the earlier decision was obtained on the footing of, or because of, the stance taken by the party in the earlier proceedings. Absent that factor, whilst the change of position may affect the credibility of the party or the witness concerned, there will not be an impression that one or other court was misled into giving its decision, so that the administration of justice risks being brought into disrepute.”
“Until after the return date, the First, Second and Third Respondents (and each of them) must not remove from England and Wales or in any way dispose of, deal with or diminish the value of any of their assets which are in England and Wales up to the value of AED 430,000,000”
“[I]t is not necessary to decide which of the two formulations (good arguable case/good reason to suppose) is the most appropriate one. The former is derived from TSB Private Bank International SA v Chabra[1992] 1 WLR 231 and the latter from SCF Finance Co Ltd v Masri[1985] 1WLR 876 . It was not submitted to us that, for the purposes of the present case, there was any significant difference between them and certainly none which it is now necessary to explore. Nor is it necessary to decide whether, given that Lapointec and Limia are the applicants for an order, it is sufficient for the bank to show that there is a real prospect of success in defeating that claim, i e the test underCPR 24.2 or the extent to which, if at all, there is any practical distinction between that and the other two tests.”
“Although it is plain that the court’s Chabra-type of jurisdiction will only be exercised where there are grounds to believe that a co-defendant is in possession or control of assets to which the principal defendant is beneficially entitled, it does not seem to me that the jurisdiction is limited to cases where such assets can be specifically identified in the hands of the co-defendant. Once the court is satisfied that there are such assets in the possession or control of the co-defendant, the jurisdiction exists to make a freezing order as ancillary and incidental to the claim against the principal defendant, although there is no direct cause of action against the co-defendant. Since the purpose of granting such an injunction against the co-defendant is to preserve the assets of the principal defendant so as to be available to meet a judgment against him, the form of order made against the co-defendant should be as specific as the circumstances permit in respect of the principal defendant’s assets of which he has possession or control. Thus, generally, the form of injunction will be tailored to that purpose and should be no wider than is necessary to achieve it. However, subject to that requirement, if a co-defendant is mixed up in an attempt to make the principal defendant judgment-proof and the assets or their proceeds are not readily identifiable in his hands it is open to the court, where it is just and convenient to do so, to make an order which catches the co-defendant’s general assets up to the amount of the principal defendant’s assets of which he appears to have possession and control.”
“A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and – (a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.”
“There were several sets of proceedings that continued against Mr Ablyazov in which judgement had not yet been obtained and even in those actions where judgement had been entered against Mr Ablyazov, there was an issue between the Bank and Mr Ablyazov as to whether the Receivership and Freezing Orders ought to be continued in respect of the Dregon Land shares on the basis of Mr Ablyazov’s beneficial ownership therein, as to which the applicants were necessary and proper parties.”
“I accept Mr Smith’s alternative submission based on C Inc plc v L that the court has jurisdiction to make a Chabra order against the applicants under paragraph 3.1(3) ofCPR PD 6B . In my judgement, the Bank’s claim that the Dregon Land shares belong beneficially to Mr Ablyazov and not Lapointec and Limia is a classic Chabra claim and there is an issue between the Bank and Mr Ablyazov (who was served within the jurisdiction) as to whether he retains beneficial ownership of the Dregon Land shares which it is reasonable for the court to try and the applicants in my view are necessary and proper parties to that claim.”
“The approach argued for by the applicants would have strange consequences. The supposed requirement that there be an issue between the claimant and the defendant to the resolution of which another person is a necessary or proper party is, in this context, inappropriate. A claimant may obtain an order restraining a defendant from disposing of an asset abroad which he accepts is his and should come within the order. Someone in the country in question may then claim that, whatever the defendant says, the asset belongs to him. The court should not be disabled from making freezing orders against a defendant who is within its jurisdiction, which may impact on third parties, because there is no dispute by the defendant that the asset is his. Nor should that position change when the foreign claimant applies for the asset to be released from the order.”
“With respect I am not sure that this is a valid ground of distinction as in C Inc plc v L the claim against Mrs L had already been determined by the default judgment and there was nothing of substance left for the court to try. Moreover, this was not the basis of Aikens J’s reasoning. If it had been necessary to set aside the default judgment, there would have been a substantive claim against both defendants and therefore no difficulty in establishing jurisdiction over them. As it was, however, this was not necessary and jurisdiction was in fact established over Mr L on the basis that he was a necessary or proper party to the application for appointment of a receiver over his wife’s assets. It seems to me, therefore, that the decision in C Inc plc v L is difficult to reconcile with the Belletti and Linsen cases.” iii) At [75], he held that “the requirement of a substantive claim against the anchor defendant is in accordance with the language ofPD 6B , para 3.1(3) and with principle”
“To interpret the paragraph as requiring a substantive claim against the anchor defendant is also consistent with the long-standing approach to construction of the rules for service out of the jurisdiction, namely that they are generally to be construed as relating to claims which involve the determination and enforcement of legal rights, and not to applications for interim relief which involve no process of adjudication upon substantive rights”. v) In this context, he referred to the following passage in the Privy Council decision in Mercedes-Benz AG v Leiduck[1996] AC 284 , 301-302: “In their [Lordships’] opinion the purpose of Ord. 11, r. 1 is to authorise the service on a person who would not otherwise be compellable to appear before the English court of a document requiring him to submit to the adjudication by the court of a claim advanced in an action or matter commenced by that document. Such a claim will be for relief founded on a right asserted by the plaintiff in the action or matter, and enforced through the medium of a judgment given by the court in that action or matter. The document at the same time defines the relief claimed, institutes the proceedings in which it is claimed, and when properly served compels the defendant to enter upon the proceedings or suffer judgment and execution in default. Absent a claim based on a legal right which the defendant can be called upon to answer, of a kind falling within Ord. 11, r.1(1), the court has no right to authorise the service of the document on the foreigner, or to invest it with any power to compel him to take part in proceedings against his will. Thus, at the centre of the powers conferred by Order 11 is a proposed action or matter which will decide upon and give effect to rights. An application for Mareva relief is not of this character. When ruled upon it decides no rights, and calls into existence no process by which the rights will be decided … This opinion, that Order 11 is confined to originating documents which set in motion proceedings designed to ascertain substantive rights, is borne out by its language …”. vi) At [82], he considered the position if a substantive claim against an anchor defendant is not required, stating that “it is necessary to identify the ‘real issue’ as between the claimant and Unitech which the claimant contends that it is reasonable for the court to try” (the implication being that, if as Males J had concluded, a substantive claim was required, the “real issue” would have to be one arising in that substantive claim). He held the “real issue” could not be found in orders already made and determined, or scheduled to be determined without the NCAD’s involvement. vii) At [84], he held that “the mere possibility that such issues may arise in the future, for example if there is a dispute about any particular step which the receivers require Unitech to take, is not enough to establish jurisdiction now against the Chabra defendants. Since there is no such real issue requiring to be tried, the Chabra defendants cannot be necessary or proper parties to the trial of that claim.”
“Unless paragraph (3) applies, where the permission of the court is required for a claim form to be served out of the jurisdiction the permission of the court must also be obtained for service out of the jurisdiction of any other document to be served in the proceedings.”
“Service of application notice on a non-party to the proceedings 6.39 (1) Where an application notice is to be served out of the jurisdiction on a person who is not a party to the proceedings rules 6.35 and 6.37(5)(a)(i), (ii) and (iii) do not apply. (2) Where an application is served out of the jurisdiction on a person who is not a party to the proceedings, that person may make an application to the court under Part 11 as if that person were a defendant, but rule 11(2) does not apply.”
“In C Inc v L,CPR r.6.20 (3) (broadly equivalent to what is nowCPR PD 6B 3.1(3)) was relied upon to enable there to be a claim for interim relief against the third party husband when there was judgment in the action against the wife. This decision is incorrect because: (1) the gateway itself only applies when there is a substantive claim against the third party, as well as a substantive claim against the anchor defendant; (2) there needs to be a substantive claim against the anchor defendant; and (3) even if (1) and (2) were satisfied there still needs to be satisfaction of each of (a) and (b).CPR PD 6B para.3.1(3) applies to substantive claims made in England, the justification for allowing the substantive claim against the second defendant being the bringing of the substantive claim against the anchor defendant and the fulfilment of the requirements in (a) and (b). When there is only a Chabra claim against a third party for Mareva relief and no substantive claim against the third party to which the injunction would be ancillary, para.3.1(3) does not apply.” ii) Grant and Mumford, Civil Fraud: Law, Practice and Procedure (2018), [18-171] state: “If the substantive claim against the cause of action defendant is being heard in the English Court, then (arguably) the claimant can rely on the necessary or proper party gateway under para.3.1(3) ofPractice Direction 6B . If, however, the substantive claim is proceeding in a foreign court or in arbitral proceedings, or has already resulted in judgment, it is thought that there is no “claim” to be heard by the English Court for the purposes of the necessary or proper party gateway and so jurisdiction against the Chabra defendant cannot be established on that basis.”
“The necessary or proper party head of jurisdiction is anomalous, in that, by contrast with the other heads, it is not founded upon any territorial connection between the claim, the subject matter of the relevant action and the jurisdiction of the English courts: Tyne Improvement Comrs v Armement Anversois SA (The Brabo)[1949] AC 326 , 338, per Lord Porter. Piggott, Foreign Judgments and Jurisdiction, 3rd ed (1910), Pt III, p 238, said: ‘This is perhaps the most important of the sub-rules, for it throws the net of jurisdiction over a wider area; and the principle of considering the nature of the cause of action which pervades the whole subject, appears here to be ignored.’ Consequently, as Lloyd LJ said in Golden Ocean Assurance Ltd v Martin (The Goldean Mariner)[1990] 2 Lloyd’s Rep 215 , 222: ‘I agree … that caution must always be exercised in bringing foreign defendants within our jurisdiction under Ord 11, r 1(1)(c). It must never become the practice to bring foreign defendants here as a matter of course, on the ground that the only alternative requires more than one suit in more than one different jurisdiction.’” ‘I agree … that caution must always be exercised in bringing foreign defendants within our jurisdiction under Ord 11, r 1(1)(c). It must never become the practice to bring foreign defendants here as a matter of course, on the ground that the only alternative requires more than one suit in more than one different jurisdiction.’”
“the mere possibility that such issues may arise in the future, for example if there is a dispute about any particular step which the receivers require Unitech to take, is not enough to establish jurisdiction now against the Chabra defendants. Since there is no such real issue requiring to be tried, the Chabra defendants cannot be necessary or proper parties to the trial of that claim.”