Law Report: Writ can be served on bank abroad: Polly Peck International plc v Nadir and others - Chancery Division (Mr Justice Knox), 28 July 1992
Mr Justice Knox dismissed an application by the fourth defendant, the Central Bank of the Turkish Republic of Northern Cyprus, to discharge leave to serve a writ on it outside the jurisdiction.
Leave was granted by Mr Justice Millett on 21 October 1991, on the ex parte application of the plaintiff, Polly Peck International plc, acting through its administrators.
David Oliver QC, and Leslie Kosmin (Alsop Wilkinson) for Polly Peck; Philip Heslop QC, and Richard Millett (Theodore Goddard) for the bank.
MR JUSTICE KNOX said that Polly Peck's claims against the bank included a claim based on a constructive trust said to arise out of transactions allegedly in breach of fiduciary duty by the first defendant, Asil Nadir, when chairman and chief executive of Polly Peck.
The issue on which the action against the bank would turn was its actual, imputed or possibly constructive knowledge of any such breaches of duty.
Order 11, rule 1(1) provided that: 'Service of a writ out of the jurisdiction is permissible with the leave of the court if in the action begun by writ . . . (t) the claim is brought for money having been received or for an account or other relief against the defendant as a constructive trustee, and the defendant's alleged liability arises out of acts committed whether by him or otherwise within the jurisdiction'.
The question of construction which arose from that somewhat inelegant piece of prose was whether, as the bank submitted, the paragraph only applied if all the 'acts', including the acquisition of the requisite knowledge by the defendant, upon which the claim to enforce the alleged constructive trust was based, had been committed within the jurisdiction; or whether, as Polly Peck submitted, it sufficed if some, at least, of the acts which gave rise to the claim, not including the acquisition of knowledge, had occurred within the jurisdiction.
There was, unfortunately, a difference of judicial opinion on the question, Mr Justice Millett having adopted the former view in ISC Technologies v Radcliff (unreported, 7 December 1990), and Mr Justice Hoffmann having preferred the latter in ISC Technologies v Guerin (17 March 1992).
His Lordship agreed with Mr Justice Hoffmann that Mr Justice Millett had construed the rule too narrowly. A construction of rule 1(1)(t), which required all the acts constituting the alleged constructive trust to have been committed within the jurisdiction, would empty the paragraph of very nearly all its practical utility, having regard to the prevalance of foreign corporations whose officers were very likely to be resident abroad and, therefore, only likely to acquire the necessary knowledge to establish the claimed constructive trust by events occurring abroad.
Moreover, to include the acquisition of knowledge among 'acts committed whether by him or otherwise within the jurisdiction' involved brutality to the English language on a scale that his Lordship would hesitate to ascribe to the draftsman of the Rules.
Geoffrey Macnab reviews American Hustle, also starring Christian Bale and Bradley Cooper
newsFormer soldier taped 33 of the animals to the floor and then stamped on them one by one
Michelle Nijhuis' daughter insists (s)he is, and she learnt a valuable lesson on gender in books
news Opponents claim it would stop performers such as Beyonce and Madonna appearing on TV
It takes a platoon of chefs, litres of brandy and rum, and almost 100kg of dried fruit
food + drink
Sun will 'flip upside down' within weeks, says Nasa
Lee Rigby murder: How killers Michael Adebolajo and Michael Adebowale became ultra-violent radicals
Cycle death inquest: Boyfriend hugs driver of 32 tonne tipper truck that killed his girlfriend
Paul Walker death caused by speed alone
Apollo Theatre collapse: Scores injured after ceiling collapses in London's West End
Exclusive: Young people ‘want UK to stay in Europe’: Four in 10 adults aged 18 to 24 are ‘firmly in favour’ of membership, poll shows
Tom Daley ‘is gay because his father died’ says UK evangelist
Iain Duncan Smith leaves Commons food banks debate early
Kiss and yell: Italian protester charged with sexual assault after kissing riot police officer
PM denies two child limit for benefits is part of Tory welfare policy
Anachronistic and iniquitous, grammar schools are a blot on the British education system
- 1 America's 'virgin births'? One in 200 mothers 'became pregnant without having sex'
- 2 North Koreans are gasping for the truth: Let's give it to them
- 3 Sun will 'flip upside down' within weeks, says Nasa
- 4 Christmas comes early: Justin Bieber is 'retiring from music'
- 5 Iain Duncan Smith leaves Commons food banks debate early
- < Previous
- Next >
£80000 - £120000 per annum + Benefits: Pro-Recruitment Group: Risk - Delivery/...
£Negotiable: Citifocus: This is a new role carrying responsibility for a numbe...
£29999 - £40001 per annum + Benefits: Pro-Recruitment Group: A top independent...
£90 - £130 per day + contributory pension scheme: Randstad Education Mancheste...