Law report: Court's jurisdiction to order production of documents

LAW REPORT v 7 May 1997
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Canadian Trust v Stolzenberg; Court of Appeal (Lord Justice Nourse, Lord Justice Millett and Lord Justice Ward) 28 April 1997

The High Court had jurisdiction to order the production of documents which were required to establish the jurisdiction of the court to try the action.

The plaintiffs appealed against an order of Rattee J, dismissing their application for orders against third parties for the production of documents on the defendants' application for the service of the writ to be set aside for want of jurisdiction.

The plaintiffs sought to recover the proceeds of international frauds. The main proceedings were brought in England, basing the jurisdiction on the alleged domicile of the first defendant in the United Kingdom within the meaning of the Civil Jurisdiction and Judgments Act 1982 at the relevant date, which was either as the plaintiffs contended, the date of issue of the writ, or, as the defendants contended, the date of service.

For the plaintiffs' protection the judge agreed that service of the writ could be delayed until protective orders were in place.

The defendants challenged the jurisdiction of the court, maintaining that the plaintiffs had insufficient evidence to establish the first defendant's domicile at the relevant date.

The plaintiffs applied for orders against a number of banks and other bodies requiring production of copies of documents in their possession which were likely to furnish evidence of the first defendant's address at the relevant date.

Christopher Carr QC and Philip Marshall (Denton Hall) for the plaintiffs; Andrew Hochhauser QC and Martin Griffiths (Richards Butler) for the second, seventh, 10th, 15th, 16th and 18th defendants; Tom Ivory (Rakissons) for the fourth defendant; Joe Smouha (Baker & McKenzie) for the 11th defendant. The other defendants did not appear and were not represented.

Lord Justice Millett said that the question in the appeal was whether it was a proper exercise of discretion to refuse to make an order for the production of documents at an interlocutory hearing on the sole ground that they were wanted in order to establish the jurisdiction of the court.

The judge had treated the matter as one of principle, not discretion. He had refused the application on the ground that, where the issue was one of jurisdiction, the court would not lend its process to a plaintiff to enable him to establish jurisdiction.

That reasoning confused two different jurisdictions. One was the jurisdiction to try the action, derived from the Brussels Convention and the Civil Jurisidction and Judgments Act 1982. It depended on whether the first defendant was domiciled in the United Kingdom at the relevant date.

The other was the court's inherent jurisdiction to decide whether it had jurisdiction to try the issues in the action.

The High Court was a court of unlimited jurisdiction. That did not mean that its jurisdiction was universal and unrestricted. It meant that, unlike inferior courts and tribunals, it had jurisdiction to decide the existence and limits of its own jurisdiction. It followed that the judge's decision should be set aside. It was not, however, appropriate for the Court of Appeal to exercise the discretion and accordingly the plaintiffs' application would be restored for hearing by the judge.

He would have to decide where the greatest risk of injustice lay, but to bear in mind that interlocutory hearings to establish the right to bring an action should not be turned into mini-trials of the action itself.

His Lordship expressed his personal disquiet at a rule, said to be a rule of our own domestic law, which made the jurisdiction of the court depend on circumstances prevailing long after what, on any realistic appraisal of the position, was the commencement of the proceedings. As the present case demonstrated, such a rule was capable of working serious injustice, and might need to be reconsidered at the highest level.

In the meantime it was at least arguably incumbent on the court not to aggravate the possible injustice by withholding the assistance which it could properly give to parties seeking to establish its jurisdiction at the relevant date.

Kate O'Hanlon, Barrister