Belletti & Ors v Morici & Ors

This is an application by the fifth and sixth defendants (to whom I will refer in this judgment as “the parents”) to set aside orders made against them by Andrew Smith J in May 2009 on grounds (i) that the English Courts have no jurisdiction over them and (ii) that there was material non-disclosure by the claimants on the applications made to the learned judge. The parents are the parents of the first defendant, who although Italian has a British passport and lives in London at least for a proportion of the time. In contrast, the parents, respectively a retired hairdresser and a housewife, both in their late sixties, are resident in Monza in Italy. There is no evidence that they have any connection with this jurisdiction.

The claimants are a number of prominent Italian professionals and businessmen who claim to have been the victims of investment fraud perpetrated against them by the first defendant. At their instigation, criminal proceedings were commenced in October 2005 against the first defendant before the Italian courts in Milan and, as permitted by Italian procedure, the claimants pursued civil proceedings against the first defendant for the loss of their investments, which civil proceedings took place within the criminal proceedings. In December 2007, the Milan Criminal Court found the first defendant guilty of aggravated fraud and entered an immediately enforceable judgment against him, in favour of the claimants, for some 4 million Euros plus costs. That judgment is under appeal by the first claimant, but that does not affect its enforceability.

On 25 May 2006, the claimants obtained a worldwide freezing injunction against the first defendant from the Commercial Court (David Steel J). The jurisdiction to grant such an order, even though the substantive dispute is being litigated in Italy, was founded on section 25 of the Civil Jurisdiction and Judgments Act 1982, which permits, in an appropriate case, the granting of interim relief by an English court in support of substantive proceedings abroad. In the context of European Union countries, that section gave effect to what was Article 24 of the Brussels Convention (now Article 31 of the Judgments Regulation 44/2001). In a domestic context, the section also amounted to a statutory overruling (in cases to which the section applies) of the decision of the House of Lords in The Siskina [1979] AC 210, which had been to the effect that the English courts had no jurisdiction to grant a freezing injunction in a case in which there was no claim for substantive relief before the English courts.

In late 2008, the claimants obtained documents disclosed by the Compagnie Monegasque de Banque SA (“CMB”) to the Monaco police in the course of criminal fraud and money laundering proceedings brought against the first defendant in Monaco at the claimants’ behest. Those documents disclosed that, in breach of the worldwide freezing order, the first defendant had concealed substantial assets with CMB in Monaco in the name of various corporate entities (specifically the third and fourth defendants) and had transferred and/or dissipated those assets.

The documents obtained in Monaco revealed that since 2000, the first defendant had been the 100% beneficial owner of the fourth defendant, a company incorporated in the British Virgin Islands, for whom he held a wide power of attorney. The fourth defendant held several accounts with CMB from 2000 until July 2006 (i.e. after the worldwide order granted by David Steel J). The parents were involved in the management of those accounts: in 2003, they completed CMB forms indicating they were “agents” of the fourth defendant and at the same time, the first defendant granted them a specific power of attorney over the fourth defendant’s accounts with CMB. Significant movements of funds through the fourth defendant’s accounts took place after the order of David Steel J and, on 14 August 2006, the first defendant emptied a safe deposit box held in the name of the fourth defendant.

The third defendant is a Panamanian company with bearer shares. The CMB documents do not state who is the beneficial owner of those shares, but on 16 February 2006, wide general powers of attorney in respect of the third defendant were granted to the parents. On 6 June 2006, some days after the worldwide freezing order against their son, the parents executed account opening documents for the third defendant with CMB. Over the next few weeks, the entire portfolio of the fourth defendant was transferred to the third defendant, which carried on thereafter a similar pattern of receipts and payments through the CMB accounts. It is tolerably clear that the beneficial owner of the third defendant (as of the fourth defendant) is the first defendant and that the transfers between those two corporate defendants and the dealings thereafter are in flagrant breach of the worldwide freezing order against him.

It is equally clear that (whether wittingly or unwittingly) the parents have assisted the first defendant in those corporate transfers and dissipation of assets, contrary to the worldwide freezing order. It was in that context that, so far as relevant, the claimants applied for and obtained an order ex parte from Andrew Smith J on 8 May 2009, restraining the parents from dealing with or disposing of (i) any assets of the first defendant or the corporate defendants to the extent that the parents control such assets and (ii) any assets which the parents had acquired from the first defendant or the corporate defendants since the worldwide freezing order was granted in May 2006.

The order granted against the parents also required delivery up of such assets to receivers appointed by the English court and disclosure of information concerning such assets. The order was not a general freezing order against the parents’ own assets. In other words, the order granted was a so-called Chabra order, named after the decision of Mummery J in TSB Private Bank International v Chabra [1992] 1 WLR 231, although the first case in which relief of this kind was granted was the decision of the Court of Appeal in SCF Finance v Masri [1985] 1 WLR 876.

The claimants also sought and obtained permission from Andrew Smith J to amend the claim form and to serve the amended claim form against the parents out of the jurisdiction. The sole ground upon which such permission was sought and granted was paragraph 3.1 (5) of Practice Direction B to CPR Part 6, which provides that the court may grant such permission where a claim is made for an interim remedy under section 25(1) of the Civil Jurisdiction and Judgments Act 1982.

The amended claim form claimed against the parents a freezing injunction over all their assets acquired from or held for or on behalf of the first defendant up to the value of 5,675,000 Euros (the amount of the injunction against the first defendant) and disclosure of information about those assets. It also sought an order for the appointment of a receiver under section 37 of the Supreme Court Act 1981, an order that the parents deliver up the assets to the receiver and permission for service out on the parents (and the corporate defendants) under paragraph 3.1(5) of the Practice Direction.

Shortly after Andrew Smith J granted the order, the claimants’ Monegasque lawyers applied on 12 May 2009 to the Monaco court for a “saisie arret” over the CMB accounts. That application referred to the order granted by Andrew Smith J. Because of a failure of communication between the claimants’ various legal advisers, that application was made without the claimants’ English lawyers having first sought and obtained the permission of the English court, pursuant to paragraph (7) of Schedule B to the order of Andrew Smith J, to seek such relief in Monaco.

When the claimants’ English solicitors realised what had happened, an application was immediately made to Andrew Smith J to vary his order to provide for permission to bring the Monaco proceedings. The claimants’ counsel who had made the ex parte application to the learned judge, Mr Dominic Chambers QC, was away at that time, so the application to amend the order was made to Andrew Smith J on paper but supported by a further affidavit from the claimant’s solicitor Mr Stokes and a letter from his firm explaining what had happened and offering to attend before the judge if he thought it necessary. He did not and granted the amended order on paper on 13 May 2009. The orders were subsequently continued at a return date before the learned judge on 26 June 2009. The present application to set aside or discharge the orders was issued on 24 July 2009.

A preliminary issue arises in relation to the parents’ application, which is this. The parents have failed to comply with any part of the order of Andrew Smith J, specifically the obligations to give disclosure of all assets held by them on behalf of the first defendant and to deliver up assets to the receiver, and have indicated through their counsel Mr Charles Samek QC, that even if their present application fails and the court were to conclude that it had jurisdiction over them and the existing order should be continued, they have no intention of complying with the order. As such, they are clearly in contempt of court and the question arises whether the court should hear their application at all, unless and until they purge their contempt by complying with the relevant parts of the order of Andrew Smith J.

In my judgment, whilst the court would not wish to condone disregard of its orders, in a case such as the present, where the parents’ principal contention is that the court has no territorial jurisdiction over them, the court should hear the application to set aside the order on that ground, notwithstanding the continuing contempt. That was the approach which the Court of Appeal endorsed in similar circumstances in Motorola Credit Corporation v Uzan (No 2) [2004] 1 WLR 113. At paragraphs 48 to 50 of the judgment of the Court, given by Potter LJ, the correct approach in a case such as this is summarised as follows:

48.

In Arab Monetary Fund v Hashim and others (CA) 21 March 1994, Lord Bingham CJ, having referred to the position as stated in the Morgan Grampian case by Lord Bridge and, in particular, by Lord Oliver at 50G, observed:

"From those speeches it is, I think, clear that it is wrong to take as a starting point the proposition that the court will not hear a party in contempt but then to ask if the instant case falls within an exception to that general rule. It is preferable to ask whether, in the circumstances of an individual case, the interests of justice are best served by hearing a party in contempt or by refusing to do so, always bearing in mind the paramount importance which the court must attach to the prompt and unquestioning observance of court orders."

49.

The "general rule/exception" approach which Lord Bingham had in mind was that articulated by Brandon LJ in The "Messiniaki Tolmi" [1981] 2 Lloyds Rep 595 at 60 namely:

" … that, while the general rule is that a Court will not hear an application for his own benefit by a person in contempt unless and until he has first purged his contempt, there is an established exception to that general rule where the purpose of the application is to appeal against, or have set aside, on whatever ground or grounds, the very order disobedience of which has put the person concerned in contempt."

50.

Although more modern authority has made clear that the discretion of the court is free from the constraints of such a categorised approach, the proposition that the court will hear a person in contempt when the purpose of his application is to appeal against the order disobedience to which has put him in contempt, has the merit not only of good sense; it seems to us necessary to satisfy considerations of fairness. Whether or not a party is in contempt of court by refusing to obey an order irregularly made, or one consequent upon and/or ancillary to an order so made, the circumstances will be rare indeed where it can be right to shut him out from arguing an appeal or application to appeal against that order made in due time.

Mr Samek on behalf of the parents accepts the existence of the so-called Chabra jurisdiction under section 37 of the Supreme Court Act 1981 to make a freezing order against a third party which is necessary ancillary relief in support of a freezing injunction against the defendant, for example (as in the present sort of case) where there is reason to suppose that assets which are ostensibly those of the third party are in truth those of the defendant or where the third party holds assets on behalf of the defendant or controls them on his behalf.

However, as Mr Chambers recognises, even in a case where it would otherwise be appropriate to exercise the Chabra jurisdiction against a third party alleged to be holding assets on behalf of the defendant, the court cannot exercise that jurisdiction unless it can establish territorial jurisdiction over the third party. Where the third party is present within the jurisdiction so that the court has in personam jurisdiction over the third party, there is no problem. However, where the third party is outside the jurisdiction, the court cannot exercise territorial jurisdiction over him or it unless there is some basis upon which the third party can be served with the relevant claim form or application notice out of the jurisdiction. There is no inherent jurisdiction of the English court to serve a foreign party out of the jurisdiction. Service out of the jurisdiction requires express authorisation by statute or pursuant to the Civil Procedure Rules: see Masri v Consolidated Contractors [2009] UKHL 43 at para 32 per Lord Mance.

Mr Samek submits that the only basis upon which someone in the position of his clients, resident in Italy, could have been served with the amended claim form, is pursuant to section 25 of the Civil Jurisdiction and Judgments Act 1982. Practice Direction B to Part 6 of the Civil Procedure Rules now contains the heads under which the court may grant permission to serve proceedings outside the jurisdiction. Paragraph 3.1 (5) provides for cases of interim remedies under section 25. As Mr Samek points out, it was on the basis of that head of paragraph 3.1 alone that Mr Chambers sought and obtained permission to serve the amended claim form on the parents from Andrew Smith J at the hearing on 8 May 2009. However, Mr Samek submits that there are a number of conditions to the exercise of jurisdiction under section 25 imposed by both the statute and by the European Court of Justice. Not only were these not drawn to the attention of Andrew Smith J, but they could not have been satisfied in relation to the parents.

Section 25 as amended currently provides, so far as relevant, as follows:

“Interim relief in England and Wales and Northern Ireland in the absence of substantive proceedings”

(1)The High Court in England and Wales or Northern Ireland shall have power to grant interim relief where—

(a)

proceedings have been or are to be commenced in a Brussels or Lugano Contracting State or a Regulation State other than the United Kingdom or in a part of the United Kingdom other than that in which the High Court in question exercises jurisdiction; and

(b)

they are or will be proceedings whose subject-matter is within the scope of the Regulation as determined by Article 1 of the Regulation (whether or not the Regulation has effect in relation to the proceedings).

(2)

On an application for any interim relief under subsection (1) the court may refuse to grant that relief if, in the opinion of the court, the fact that the court has no jurisdiction apart from this section in relation to the subject-matter of the proceedings in question makes it inexpedient for the court to grant it.

Mr Samek focuses particularly upon sub-section (2) and the fact that the court will not grant the power under the section if it is “inexpedient” to do so. The statute itself gives no guidance as to when it would be inexpedient to grant such relief. However, the Court of Appeal has given guidance on this issue in a number of cases since the section came into force: Republic of Haiti v Duvalier [1990] 1 QB 202; Credit Suisse Fides Trust SA v Cuoghi [1998] 1 QB 818; Refco Inc v Eastern Trading Co [1999] 1 Lloyd’s Rep 159; Motorola Credit Corporation v Uzan (No 2) [2004] 1 WLR 113; Banco Nacional de Comercio Exterior SNC v Empresa de Telecommunicaciones de Cuba SA [2008] 1 WLR 1936 Masri v Consolidated Contractors International (No 2) [2009] 2 WLR 621 and ETI Euro Telecom International NV v Republic of Bolivia [2009] 1 WLR 665

These cases were all helpfully cited to me by Mr Samek, but for the purposes of this judgment it is not necessary to set out all the judgments of the Court of Appeal in extenso. At this stage of the debate, it is only necessary to refer to one of those cases, Motorola. In Motorola, the claimants sought interim relief by way of a freezing order from the English court in support of substantive proceedings in the Southern District of New York in circumstances where (as in the present case) the relevant defendants were resident outside the jurisdiction and had no connection with England.

Having considered the earlier authorities Potter LJ giving the judgment of the court said at paragraph 115:

As the authorities show, there are five particular considerations which the court should bear in mind, when considering the question whether it is inexpedient to make an order. First, whether the making of the order will interfere with the management of the case in the primary court e.g. where the order is inconsistent with an order in the primary court or overlaps with it. That consideration does not arise in the present case. Second, whether it is the policy in the primary jurisdiction not itself to make worldwide freezing/disclosure orders. Third, whether there is a danger that the orders made will give rise to disharmony or confusion and/or risk of conflicting inconsistent or overlapping orders in other jurisdictions, in particular the courts of the state where the person enjoined resides or where the assets affected are located. If so, then respect for the territorial jurisdiction of that state should discourage the English court from using its unusually wide powers against a foreign defendant. Fourth, whether at the time the order is sought there is likely to be a potential conflict as to jurisdiction rendering it inappropriate and inexpedient to make a worldwide order. Fifth, whether, in a case where jurisdiction is resisted and disobedience to be expected, the court will be making an order which it cannot enforce.

Mr Samek submits that when these principles are applied to the present case, it is clear that it is inexpedient to allow the Chabra order to be made against the parents. He relies upon the following matters in particular: (i) the Italian courts before whom the substantive dispute is being litigated could not grant worldwide freezing relief such as was granted against the first defendant in the present case; (ii) the most appropriate courts before which any protective measures should be taken are the courts of Italy where the parents are domiciled or the courts of Monaco where the relevant assets are located. There is simply no connection between this jurisdiction and either the parents or the assets; (iii) in circumstances where a freezing order which is of wider impact than the order against the first defendant which has been obtained in Monaco, there is a risk of disharmony or confusion between the English order and the Monaco order or a risk of conflicting inconsistent or overlapping orders in other jurisdictions; (iv) because there are now criminal proceedings in Italy against the parents, if the parents had to comply with an order to disclose any assets held on behalf of their son, they would put themselves at risk of self-incrimination in those Italian criminal proceedings in circumstances where the privilege against self-incrimination is not available to them here since the exception in the order against them does not extend to criminal offences abroad; and (v) in any event, the parents have no intention of complying with the court’s order and the court has no means of compelling them to do so or otherwise enforcing the order.

Mr Samek also relies upon the fact that the Court of Appeal went on, in paragraph 116 of its judgment in Motorola, to conclude that the position of each defendant must be considered separately, to counter any suggestion by the claimants that it would be expedient for the court to assume section 25 jurisdiction against the parents, on the basis that the first defendant is resident in London for at least a proportion of the time and has a British passport. Whatever his position, there is no evidence of any connection between the parents, who live in Monza, and this jurisdiction.

He submits that the matter does not rest there because, where section 25 is being invoked in a case where the defendant is domiciled in the European Union and the Judgments Regulation thus applies, the European Court has laid down criteria as to the circumstances in which what is now Article 31 of the Judgments Regulation (formerly Article 24 of the Brussels Convention which section 25 was enacted to give effect to) can be invoked.

In Van Uden Maritime BV v Kommanditgesellschaft in Firma Deco-Line (Case C-391/95) [1999] QB 1225, the European Court stated as follows:

37.

…it must be remembered that the expression "provisional, including protective, measures" within the meaning of Article 24 of the Convention is to be understood as referring to measures which, in matters within the scope of the Convention, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case..

38.

The granting of this type of measure requires particular care on the part of the court in question and detailed knowledge of the actual circumstances in which the measures sought are to take effect…

39…the court held at para. 16 of Denilauler [[1980] ECR 1553] that the courts of the place – or, in any event, of the contracting state where the assets subject to the measures sought are located are those best able to assess the circumstances which may lead to the grant or refusal of the measures sought or to the laying down of procedures and conditions which the plaintiff must observe in order to guarantee the provisional and protective character of the measures authorised.

40.

It follows that the granting of provisional or protective measures on the basis of article 24 [article 31 of the Regulation] is conditional on, inter alia, the existence of a real connecting link between the subject matter of the measures sought and the territorial jurisdiction of the contracting state of the court before which those measures are sought.

Mr Samek submits that the “subject matter of the measures sought” must be either the assets in relation to which the protective measures are sought or the person(s) against whom they are sought, or possibly both. Support for the contention that it is both derives from the decision of the Court of Appeal in Banco Nacional de Comercio Exterior SNC v Empresa de Telecommunicaciones de Cuba SA [2008] 1 WLR 1936. At paragraphs 29 of the judgment, Tuckey LJ (giving the judgment of the Court) says this, having cited Van Uden:

Applying these principles to the facts of this case we think there can be no doubt that it would be inexpedient to grant BNC a worldwide freezing order. ETC is not resident here. Any assets here are protected by the domestic order. The worldwide order is only directed at assets outside the jurisdiction. There is therefore no connecting link at all between the subject matter of the measure sought and the territorial jurisdiction of this court. It is not suggested that the worldwide order should be made in order to assist the Italian court or any of the other courts of the Member States which have been involved in enforcement proceedings. (my emphasis)

A somewhat narrower approach to what constitutes the “subject matter of the measures sought” was arguably taken by Lawrence Collins LJ (as he then was) in his judgment in Masri v Consolidated Contractors International (No 2) [2009] 2 WLR 621 where he seems to indicate at paragraph 106 that it was a “sufficient connecting link” to satisfy the Van Uden criterion that the defendant was amenable to the jurisdiction of the court (there because the defendant had submitted to the jurisdiction). However, his judgment on the Article 31 point was clearly obiter and, in any event, Mr Samek submits that even if this narrower approach is correct, there remains no connecting link between either the assets and this jurisdiction or the parents and this jurisdiction.

The primary case advanced before me by Mr Chambers QC on behalf of the claimants, in contrast to the way the case for service out of the jurisdiction was put before Andrew Smith J, was that section 25 of the 1982 Act and thus paragraph 3.1(5) of the Practice Direction were not relevant once the jurisdiction was established pursuant to those provisions against the first defendant. Rather the basis for service out was to be found in paragraph 3.1(3) which provides:

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.

The argument advanced was that there was an issue between the claimants and the first defendant as to the beneficial ownership of the assets held by the parents and that the parents were necessary or proper parties to the trial of that issue. Reliance was placed on the decision of Aikens J (as he then was) in C Inc plc v L [2001] 2 All ER (Comm) 446. In that case a claim was being made against Mrs L in this jurisdiction in relation to which a freezing injunction was granted. In her response to an order for disclosure of assets, she alleged that she was in fact holding the relevant assets as trustee for her husband. They were both resident in Guernsey. An order was made for the appointment of a receiver which was resisted by Mrs L. A freezing order was made against Mr L. Aikens J refused to set aside that order, holding that permission to serve out against Mr L was justified under what is now paragraph 3.1(3) of Practice Direction CPR6B. The basis for the decision was that Mr L was a necessary or proper party to the claim against Mrs L to appoint a receiver.

In deciding that the court did have jurisdiction over Mr L, Aikens J concluded as follows:

I have concluded that the Court does have territorial jurisdiction over Mr. L, based on CPR Part 6.30(2) and Part 6.20(3). I have also concluded that it should exercise its discretion to give permission to serve the application notice on him. My reasons are as follows:

(1)

As there is not and cannot be any claim for substantive relief against Mr. L, it is inappropriate to issue and serve a claim form against him. The proper procedure is to issue and serve an application notice in the existing action, as Lord Mustill stated in the Mercedes-Benz case. It is accepted that CPR Part 6.30(2) applies in that case. In my view, on the proper construction of that provision, the claimant/applicant has to satisfy the Court that there is a ground within CPR Part 6.20 which gives the Court jurisdiction to grant permission to serve the application notice on the proposed defendant out of the jurisdiction.

(2)

So in this case the Court has to consider whether CPR Part 6.20(3) applies to the application notice that the claimant wishes to serve out of the jurisdiction on Mr. L.

(3)

It is not disputed that there has been an “application” against “someone” i.e. Mrs. L (for the appointment of a receiver) and the application has been or will be served on her. In my view unless Mrs. L has agreed to the appointment of a receiver - and she has not - then there is a “real issue which it is reasonable for the court to try”. The issue is whether the English Court should appoint a receiver to get in an asset, Mrs. L’s alleged right to an indemnity from her husband, in aid of the execution of the judgment debt against her.

(4)

The claimant does wish to serve the application notice on “another person”, i.e. Mr. L.

(5)

He is a “proper party” to “that claim” i.e. the claim against Mrs. L for the appointment of a receiver. This is because ultimately the receiver will be making the claim for an indemnity against Mr. L. He therefore may have arguments to make on why the receiver should not be appointed by the English Court. Furthermore, it is Mr. L’s assets that would be used to satisfy the claim for an indemnity that the receiver is to pursue. It is accepted for present purposes that there is a risk of dissipation of those assets. Therefore it is proper for an application notice claiming a freezing order to be served on him out of the jurisdiction.

(6)

The Court should exercise its discretion to permit the service of the application notice because: (i) it is accepted that the Guernsey Court cannot appoint a receiver over the assets of Mrs. L, even those in Guernsey. So if any steps are to be taken to enforce the right of indemnity in aid of execution of the existing judgment debt, it could only be done by a receiver appointed by the English Court. (ii) Although the indemnity proceedings must be in Guernsey, if they are to be effective, the receiver appointed by the English Court must take steps to satisfy that judgment against Mr. L by executing on his assets. (iii) Those assets may be either in England and Wales or in Guernsey. (iv) Therefore as the application against Mr. L relates to the proposed actions of a receiver appointed by the English Court, England is the proper place in which to make the application for a freezing order against Mr. L.

In the present case, it is said on behalf of the claimants that there is a dispute between the claimants and the first defendant as to who is the beneficial owner of the assets which are allegedly held by the parents (i.e. whether they are the first defendant’s assets or the parents’ assets) and that the parents are necessary or proper parties to that dispute. If this argument is correct, it is contended that it matters not whether the claimants can also bring themselves within section 25 of the 1982 Act.

In the alternative to that submission, Mr Chambers contends that since the first defendant is domiciled in England within the meaning of the Judgments Regulation, the Court has jurisdiction over the parents by virtue of Article 6 because the claimants’ claim for a Chabra order is so closely related to their claim against the first defendant for the freezing order that it is expedient for them to be dealt with together. In the further alternative he contends that the court may grant permission to serve out against the parents under paragraph 3.1(10) of Practice Direction B to Part 6 of the CPR on the basis that the claim for freezing relief is made for the purposes of ensuring the effective enforcement of the claimants’ judgment debt against the first defendant.

If all those arguments are wrong and jurisdiction can only be founded via section 25, Mr Chambers contends that the court should grant relief against the parents under section 25 without regard to the question of expediency or inexpediency because (i) in a case such as the present, where the court has Chabra jurisdiction over the parents by virtue of section 37 of the Supreme Court Act 1981, it is not necessary to satisfy the “expediency” condition in section 25(2) because the court does have jurisdiction “apart from this section”; (ii) where the court has already granted interim relief against the first defendant under section 25 and thus the “expediency” hurdle has been crossed once, in relation to the claim for interim relief against the parents it is not necessary to cross the “expediency” hurdle again. By parity of reasoning with that last point, in relation to the Van Uden criterion of a “sufficient connecting link”, Mr Chambers contends that, having satisfied that criterion once in relation to the first defendant, it is not necessary to satisfy it again in relation to a claim for interim relief against the parents.

If it is necessary to show that it is not “inexpedient” to grant the order against the parents by virtue of section 25(2) or that there is a “sufficient connecting link” within the meaning of Van Uden, Mr Chambers contends that the relevant conditions are satisfied here for the following reasons: (i) the worldwide freezing order was obtained in May 2006 against the first defendant, who is resident within the jurisdiction, on the basis that the English court would be the “primary” court dealing with the assets frozen by the order and the order against the parents is an ancillary order to ensure that the first defendant’s assets remain frozen, pending determination by the English court of the true ownership of those assets; (ii) whilst there is evidence that the parents control or hold the first defendant’s assets, the claimants’ knowledge as to where those assets are (other than the ones identified in Monaco) is limited. The first defendant operates in a number of jurisdictions throughout the world and the parents may be controlling assets in those jurisdictions. The English court is best equipped to enforce and co-ordinate worldwide freezing relief; (iii) the granting of the order against the parents will not interfere with the ongoing proceedings in the Italian courts; (iv) the relief granted here is not available in Italy either by way of worldwide freezing relief or a disclosure order; (v) the court is entitled to proceed on the basis that its orders will be obeyed; (vi) to the extent that the parents advance the unattractive submission that they will not obey the order, they would be in contempt of court and a bench warrant could be issued against them so that they could not come to this jurisdiction without being arrested.

So far as a “real connecting link” is concerned, that is said by the claimants to be present because the court has jurisdiction already over the first defendant, who is resident here and the order sought against the parents is intended to safeguard the claimants’ rights in the form of the judgment already obtained by the claimants against the first defendant which the claimants are seeking to enforce.

The argument on behalf of the claimants that paragraph 3.1(3) of the Practice Direction applies is ingenious but, as I see it, fundamentally flawed. In my judgment Mr Samek is correct in his submission that the application of paragraph 3.1(3) of the Practice Direction is limited to cases where the substantive dispute is before the English courts, because only in such a case is any “claim” going to be tried between the claimant and the defendant who has been or will be served with the proceedings. Where, as in the present case the substantive issue will be tried in Italy, there never will be any real issue between the claimants and the first defendant which this court will try.

To the extent that it is suggested that C Inc plc v L is authority for the proposition that jurisdiction under paragraph 3.1(3) of the Practice Direction can be founded against a party, even where the claim against that party is in interlocutory proceedings, it is important to have in mind that C Inc plc v L was a case where the substantive dispute against Mrs L was before the English court. It is one thing to say that, in such a case, where in the dispute concerning the freezing order in support of those proceedings, another party is a necessary or proper party to that dispute, permission to serve that party out of the jurisdiction can be obtained pursuant to paragraph 3.1(3). It is quite another to suggest that that provision can be invoked in a case where the substantive dispute is not before the English courts at all, but before a foreign court and the English jurisdiction has only been invoked in support of those foreign proceedings.

In my judgment, paragraph 3.1(3) cannot be relied upon in a case such as the present, where the substantive dispute is before a foreign court and the jurisdiction of the English court against the principal defendant is only engaged by virtue of section 25 of the 1982 Act. Where the substantive dispute is before the Italian courts, the only basis for jurisdiction against the first defendant is section 25 and paragraph 3.1(5). Reliance on any of the other grounds of paragraph 3.1 would not have been possible, because the substantive dispute was to be litigated in Italy, not here. It would be bizarre in the extreme if there was jurisdiction to sue accessory parties such as the parents under the provisions of the remainder of paragraph 3.1, where there was no jurisdiction under those provisions against the primary defendant.

Even if that analysis is wrong and paragraph 3.1(3) is capable of applying to the parents in principle, there are a number of other reasons why the provision does not apply. In reality, as matters stand, there is no dispute between the claimants and the first defendant, let alone between the claimants and the parents (who have not raised any contention yet about the assets) as to the ownership of the assets. Any contrary argument is wholly artificial. If the first defendant (or the parents) were to contend that the relevant assets in Monaco were in truth their assets and not their son’s, at that stage the court might order an issue to be tried but unless and until that happened, there would be no “claim” to be tried. Again, the position here is different from that in C Inc plc v L where there was a real dispute between the claimant and Mrs L as to the appointment of a receiver.

Furthermore, the purpose of joining the parents as parties to the claim form (as is demonstrated by the relief sought in the amended claim form) was not to have any such issue tried. Rather, it was to obtain interim measures against the parents, by way of a Chabra order in aid of the worldwide freezing order against the first defendant, in circumstances where there is no (and never will be any) substantive dispute between the claimants and the first defendant to be tried in England.

The short answer to Mr Chambers’ attempt to rely upon Article 6 of the Judgments Regulation is that Chapter I of the Regulation (of which Article 6 forms part) is concerned with substantive jurisdiction and substantive disputes against the primary defendant and against the other defendants sought to be joined under Article 6. Were it otherwise, what is now Article 31 (the basis for section 25 of the 1982 Act) would be otiose. There is no substantive claim against the first defendant in England and thus there can be no claim against the parents by virtue of Article 6.

Equally, the short answer to any reliance upon paragraph 3.1(10) of the Practice Direction is that there is no claim against the parents to enforce the judgment obtained against the first defendant in the Milan court. At most, the claim against the parents is for ancillary relief to assist the claimants to enforce the judgment against the first defendant, but as against the parents that claim falls outside sub-paragraph (10).

Accordingly, I have no doubt that the only basis for extra-territorial jurisdiction in the present case is section 25 of the 1982 Act and thus paragraph 3.1(5) of the Practice Direction.

I turn to Mr Chambers’ arguments as to why the court does not need to be satisfied that it is expedient to make an order against the parents before doing so. The argument that section 25(2) of the 1982 Act does not apply because the court has Chabra jurisdiction against the parents under section 37 of the 1981 Act fundamentally confuses substantive jurisdiction (in the sense of the powers of the court against those over whom it has territorial jurisdiction) and that territorial jurisdiction (with which section 25 and the Practice Direction B to Part 6 are concerned), the existence of which is a necessary pre-condition to the exercise of any powers under section 37. Unless there is some basis for the English courts to assume territorial jurisdiction over the parents who are resident in Italy, this court has no power to make a Chabra order against the parents.

Nothing in section 25 (2) suggests the contrary. When the sub-section talks about the court having no jurisdiction apart from the section, it goes on to provide “in relation to the subject-matter of the proceedings in question”. That is clearly a reference back to the substantive proceedings commenced in another Regulation State than the United Kingdom (here Italy) referred to in sub-section (1). The English courts clearly have no jurisdiction in respect of the substantive dispute, a fortiori against the parents. Accordingly, in my judgment, there is no basis for not applying the condition of “expediency” under section 25(2) as interpreted by the English courts.

Equally, in my judgment there is no basis for the suggestion that the Van Uden criterion of a “real connecting link” should somehow not apply because the relief sought is ancillary to other interim relief. The criterion clearly applies to any case to which the Judgments Regulation applies in which interim relief is sought. This application is such a case, irrespective of the fact that interim relief had been previously sought and obtained against the first defendant.

It follows that in order to justify permission to serve the parents out of the jurisdiction, the claimants have to satisfy both the criteria as regards expediency established by the various Court of Appeal cases and the Van Uden criterion.

Turning to the various considerations as to expediency summarised in Motorola and the parties’ submissions on expediency, I am unimpressed by the suggestion on behalf of the parents that the order made against them by Andrew Smith J would interfere with the management of the proceedings in Italy or give rise to confusion or the risk of conflicting or inconsistent or overlapping decisions here and in Italy or in Monaco.

It is said that there are now criminal proceedings in Italy against the parents and that to have to comply with the disclosure order made by this court would expose the parents to the risk of self-incrimination in the Italian criminal proceedings. It seems to me that the parents have come nowhere near discharging the onus on them to provide a sufficient explanation as to why complying with the disclosure order would incriminate them in the Italian criminal proceedings. Furthermore, given that the claimants have given the usual undertaking at paragraph (6) of Schedule B to the order of Andrew Smith J, not to use any information obtained without permission of the court other than in the present English proceedings and the original criminal proceedings against the first defendant, the risk is a speculative one. Even if there were any risk, it is at least arguable that the usual proviso against self-incrimination at paragraph 9(2) of the order covers self-incrimination in other jurisdictions, not just in this jurisdiction.

Mr Samek sought to make much of the fact that the freezing order in Monaco was more far-reaching than the order against the parents here, principally because (i) it covers not only assets held by the parents on behalf of the first defendant, but their personal assets; (ii) it is for a greater sum than the English order and (iii) it operates by way of attachment. It does not seem to me that this gives rise to any confusion or disharmony between the two jurisdictions. In any event, as Mr Chambers points out, when the Monaco order was executed over the known assets in Monaco, that is the bank account of Bradshaw at CMB, only 742 Euros were attached and it is unlikely that any further assets will be attached. Accordingly, the impact of the Monaco order is extremely limited.

Of more significance is the fact that it is not the policy of the Italian courts to grant worldwide freezing orders and thus it is contended by the parents that the order against them, which was ancillary to the worldwide freezing order against the first defendant, should not have been made. This was a point which influenced the Court of Appeal in the Banco Nacional case (also a case where the substantive proceedings were in Italy) against making a worldwide order (see paragraph 30 of the judgment). However, if the point stood alone, I would not necessarily regard it as determinative. In the present case, the worldwide freezing order was against the first defendant and there was evidence at the time the order was made by David Steel J in 2006 that he lived in England. I do not see how it could be seriously argued that that order should not have been made against him, merely because the Italian courts would not have made such an order. The order against the parents is ancillary to that order properly made by this court.

Furthermore, the cases seem to draw a distinction between the position where the court seised of the substantive dispute does not make orders of the kind made in England under section 25 (because in effect, the foreign court does not have jurisdiction to do so) and the position where the foreign court has jurisdiction to make an order of the kind, but has decided not to do so (in effect as an exercise of discretion). It is in the latter position that the attitude of the foreign court to an order of the particular kind is a particularly strong factor pointing to the inexpediency of the English court making the order: see Motorola at paragraph 119.

However, there are two other related factors, which in my judgment point very strongly to this being a case where it would be inexpedient to make the order against the parents. First, the complete absence of any connection between the parents and England. It is no answer to say their son, the first defendant, has a connection with England, since, as the Court of Appeal held at paragraph 116 of Motorola, the position of each defendant has to be considered separately. The attempt by Mr Chambers to overcome this obstacle by contending that the fact that the parents had become enmeshed in the first defendant’s affairs and controlled his assets, somehow meant that they should all be considered together and not separately, is misconceived. There is simply no evidence that any of the assets over which the parents may have control are situated in England or have any connection with England.

The argument advanced by Mr Chambers that the English court is the “primary” court dealing with the assets frozen by the original worldwide order against the first defendant and therefore the appropriate court to grant an ancillary order against the parents is, with respect, a “bootstraps” argument. Where the English court had territorial jurisdiction over the parents, it would clearly be appropriate to grant such an ancillary order, but as I see it the appropriateness of the order cannot in itself justify the exercise of extra-territorial jurisdiction, where there would otherwise be no jurisdiction over the parents. Where the relevant defendants have no connection with the jurisdiction and the relevant assets are not located here, it will rarely if ever be appropriate or expedient for the court to assume jurisdiction under section 25 of the 1982 Act.

That was a point which was recently emphasised by Walker J in Mobil Cerro Negro v Petroleos de Venezuela [2008] 1 Lloyd’s Rep 684. Having considered all the authorities, the learned judge summarised the applicable principles at paragraph 119 of his judgment:

In my view it is apparent from the cases cited earlier, and is sufficient for present purposes, that this court will only be prepared to exercise discretion to grant an application in aid of foreign litigation for a freezing order affecting assets not located here if the respondent or the dispute has a sufficiently strong link here or, in cases where the European jurisprudence referred to by Potter LJ at paragraph 114 of Motorola (No. 2) does not apply, there is some other factor of sufficient strength to justify proceeding in the absence of such a link. This way of putting the matter does not assume that presence of the respondent here will necessarily be sufficient to warrant the exercise of discretion in favour of an applicant – although as was observed by Lord Bingham in Credit Suisse Fides Trust it may weigh in favour of granting relief. Nor does it assume that any other particular factor will be sufficient. There will always need to be a careful examination of the justification for any part of the proposed order which would tend to run counter to principles of comity with courts in other jurisdictions.

That passage leads on to the related factor, which is that, as Mr Samek candidly accepts, the parents have no intention of complying with the English court’s order and the court has no means by which it can enforce the order against them. Mr Chambers’ suggestion that the court could issue a bench warrant not backed for bail and the parents could then be arrested when they arrived in the jurisdiction is ingenious but there is simply no evidence that this retired hairdresser from Monza and his wife ever come here or want to come here.

The fact that a defendant has no connection with the jurisdiction and no intention of complying with the court’s order leaving the court with no sanction over him or her to enforce the order (however unattractive that stance by a foreign defendant may be) is an important pointer to it not being expedient to make the order in the first place. This was clearly the view of the Court of Appeal in the Motorola case: see paragraph 125 of the judgment where Potter LJ says this:

In the light of the defendants' behaviour in the US proceedings and the stance taken in their witness statements, there was every reason to suppose that the orders of the English court would be disobeyed and that, if that were so, then no real sanction would exist against D2 and D3. While we well understand the concern of the judge to assist in a case of international fraud, it is above all, as it seems to us, this consideration which he overlooked and which, quite apart from considerations of comity, it is important to bear in mind in a case where the connection of the defendant with this country is tenuous or non-existent. In our view the circumstances before the judge did indeed render it inexpedient to grant the relief claimed against D2 and D3 when no sanction was available against them in the event of their disobedience.

Thus, in my judgment, these two related considerations, the absence of any connection between the parents and the jurisdiction and the impracticality of enforcing the order against them, make it inexpedient to make the order. However, the matter does not rest there. As the passage from the judgment of Walker J quoted above demonstrates, in cases where the European jurisprudence (i.e. Van Uden) does apply, the claimant must also satisfy the criterion in that case of a real connecting link between the subject matter of the measures sought and the territorial jurisdiction of the English court. Whether the subject matter of the measures sought is the assets sought to be frozen or the defendant against whom an order is sought or both, that criterion simply cannot be satisfied here. The assets are in Monaco, the parents are in Italy and there is no real connecting link at all. The connection of the first defendant with the jurisdiction cannot provide the necessary link where the position of each defendant has to be considered separately.

It follows that in my judgment it was not expedient to make an order against the parents under section 25 of the 1982 Act and permission to serve out pursuant to paragraph 3.1(5) of Practice Direction B to CPR Part 6 should not have been granted. Since, for the reasons I have given earlier in this judgment, there is no other basis upon which permission could be granted, it must follow that the order of Andrew Smith J of 8 May 2009 must be set aside in its entirety.

In the circumstances, it is not necessary to consider in very much detail the parents’ alternative ground for setting aside the order, namely material non-disclosure by the claimants to the court at the ex parte hearing before Andrew Smith J on 8 May 2009 and the subsequent “on paper” application to that learned judge on 13 May 2009.

The parents allege that the claimants failed to disclose the following matters at the ex parte hearing on 8 May 2009:

It is contended on behalf of the parents that these matters continued not to be disclosed on the paper application on 13 May 2009. In addition, on that application, the claimants failed to refer the court to the following additional matters:

There is no dispute between the parties as to the correct legal principles to be applied in cases of material non-disclosure, derived from the decision of the Court of Appeal in Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350 and subsequent decisions of the Court of Appeal such as Memory Corporation plc v Sidhu (No 2) [2000] 1 WLR 1443. It is accepted by the parents that these non-disclosures were inadvertent and not deliberate, but nonetheless it is submitted that they were sufficiently serious that the court should set aside the orders made.

The appropriate approach in a case of inadvertent non-disclosure was summarised in my judgment in Congentra AG v Sixteen Thirteen Marine SA [2008] 2 Lloyd’s Rep 602 to which my attention was drawn by Mr Chambers on behalf of the claimants:

62.

As the Court of Appeal stated in Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350 and as has been repeated in subsequent cases, the purpose of this rule is to deprive a wrongdoer of an advantage improperly obtained and to serve as a deterrent to others to ensure that they comply with their duty to make full and frank disclosure on ex parte applications. However, even if there has been material non-disclosure, the Court has a discretion whether or not to discharge an order obtained ex parte and whether or not to grant fresh injunctive relief. Discharge of the order is not automatic on any non-disclosure being established of any fact known to the applicant which is found by the Court to have been material, although it would only be in exceptional circumstances that a Court would not discharge an order where there had been deliberate non-disclosure or misrepresentation. It is not alleged in the present case that any of the alleged non-disclosures or misrepresentations was deliberate. Whilst it is no answer to a complaint of non-disclosure to say that even if the relevant matters had been placed before the Court, the result would have been the same, that is a relevant consideration in the exercise of the Court's discretion.

63.

In exercising that discretion, the overriding question for the Court is what is in the interests of justice. This is very clear from all three judgments in the Court of Appeal in Brink's Mat....

It is correct that there was only limited discussion at the hearing before Andrew Smith J as to the ground upon which the claimants relied for granting permission to serve out. Mr Chambers referred the learned judge to paragraph 3.1(5) but not to the case law as to when an order under section 25 should be made or to the Van Uden criteria. However, given that the context in which material non-disclosure is being considered is that, contrary to the conclusion I have reached on the parents’ primary submission, the court had jurisdiction to make the order, it is difficult to see what this point really adds to the parents’ case on absence of jurisdiction. If (as I have held) it was not expedient to grant the order, there was no jurisdiction (or at least no jurisdiction that should have been exercised) in which case, the parents do not need this further argument. On the other hand, if, contrary to that conclusion, the court did have jurisdiction under section 25, there is nothing in the alleged failure to cite all the relevant case law.

Whilst it is correct that, through inadvertent slips explained by Mr Stokes of the claimants’ solicitors and by their Italian lawyer in their respective affidavits and witness statements, the claimants did not disclose to Andrew Smith J either at the ex parte hearing or on the subsequent paper application that there were criminal proceedings in Italy against the parents, I have no doubt whatsoever that the learned judge would have made precisely the same order as he did, even if the existence of those criminal proceedings had been disclosed to him. Although, as I said in Congentra that is not determinative, it is obviously an important consideration. It does not seem to me that it would be in the interests of justice to discharge the order on the basis of that non-disclosure. On the contrary, it would be quite disproportionate to do so.

It is correct that in Dadourian v Simms the Court of Appeal laid down guidelines as to the exercise of discretion as to the granting of permission to enforce a worldwide freezing injunction abroad, stated in paragraph 25 of the judgment of the Court given by Arden LJ, as follows:

With the benefit of these observations, a number of guidelines can in our judgment be stated about the exercise of discretion to grant permission to enforce a WFO abroad. We refer to these guidelines below as the Dadourian guidelines. We will now set out the guidelines, and in the paragraphs that follow below we set out commentary on each of the guidelines in turn.

Guideline 1: The principle applying to the grant of permission to enforce a WFO abroad is that the grant of that permission should be just and convenient for the purpose of ensuring the effectiveness of the WFO, and in addition that it is not oppressive to the parties to the English proceedings or to third parties who may be joined to the foreign proceedings.

Guideline 2: All the relevant circumstances and options need to be considered. In particular consideration should be given to granting relief on terms, for example terms as to the extension to third parties of the undertaking to compensate for costs incurred as a result of the WFO and as to the type of proceedings that may be commenced abroad. Consideration should also be given to the proportionality of the steps proposed to be taken abroad, and in addition to the form of any order.

Guideline 3: The interests of the applicant should be balanced against the interests of the other parties to the proceedings and any new party likely to be joined to the foreign proceedings.

Guideline 4: Permission should not normally be given in terms that would enable the applicant to obtain relief in the foreign proceedings which is superior to the relief given by the WFO.

Guideline 5: The evidence in support of the application for permission should contain all the information (so far as it can reasonably be obtained in the time available) necessary to make the judge to reach an informed decision, including evidence as to the applicable law and practice in the foreign court, evidence as to the nature of the proposed proceedings to be commenced and evidence as to the assets believed to be located in the jurisdiction of the foreign court and the names of the parties by whom such assets are held.

Guideline 6: The standard of proof as to the existence of assets that are both within the WFO and within the jurisdiction of the foreign court is a real prospect, that is the applicant must show that there is a real prospect that such assets are located within the jurisdiction of the foreign court in question.

Guideline 7: There must be evidence of a risk of dissipation of the assets in question.

Guideline 8: Normally the application should be made on notice to the respondent, but in cases of urgency, where it is just to do so, the permission may be given without notice to the party against whom relief will be sought in the foreign proceedings but that party should have the earliest practicable opportunity of having the matter reconsidered by the court at a hearing of which he is given notice.

In the context of the application made to Andrew Smith J on paper on 13 May 2009 after the event, for permission to obtain the Monaco order, these guidelines were simply not referred to by the claimants at all. In so far as it is said that the claimants failed to draw the judge’s attention to the fact that the Monaco order was more extensive than the English order (guidelines 4 and 5) in the three respects identified above, I have already indicated that I am unimpressed by the alleged wider impact of the Monaco order.

As regards a number of the other guidelines (specifically guidelines 5, 6 and 7), whilst it is correct that the guidelines were not drawn to the attention of the learned judge when they should have been, it seems to me unreal to suggest that he did not have well in mind such matters in circumstances where he had granted the order against the parents only five days previously. Equally, the criticism that the matter was dealt with on paper is misplaced. The claimants’ solicitors specifically invited the judge to call for a hearing if he wished to do so, which he evidently did not. In any event, any failure to cite those guidelines could only impact on the 13 May order, not on the original order made on 8 May 2009. Overall, whilst the Dadourian guidelines may not have been followed, it does not seem to me that it would be in the interests of justice to set aside either the original order or the order of 13 May 2009 granted on paper.

In conclusion on this aspect of the case, given that (i) any non-disclosure or failure to draw the court’s attention to relevant authorities was inadvertent and (ii) in my judgment the court would still have made the orders it did even if all those matters had been disclosed, it is my very firm view that it would not be in the interests of justice to set aside the order against the parents on the grounds of material non-disclosure. Accordingly, if this point stood alone, I would be against the parents. However, since in my judgment, this is a case in which it was inexpedient to make an order under section 25 of the 1982 Act, the orders of Andrew Smith J must be set aside in any event.