Aeronave S.P.A. v Westland Charters Ltd

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE KARMINSKI
Judgment Date09 June 1971
Judgment citation (vLex)[1971] EWCA Civ J0609-1
Date09 June 1971
CourtCourt of Appeal (Civil Division)
Between
Aeronave S. P. A. And Aldo Cerciello
Plaintiff Appellant
and
Westland Charters Limited
British Hovercraft Corporation Limited & Westland Aircraft Limited
Defendants Respondents

[1971] EWCA Civ J0609-1

Before:

The Master of the Rolls (Lord Denning)

Lord Justice Salmon and

Lord Justice Karminski

In The Supreme Court of Judicature

Court of Appeal

Appeal by plaintiffs from order of Mr. Justice Willis on 29th April, 1971.

The Honourable CHRISTOPHER BATHURST (instructed by Messrs. Ashurst, Morris Crisp & Co.) appeared on behalf of the Appellant Plaintiffs.

Mr. RICHARD HAVERS (instructed by Messrs. Slaughter & May) appeared on behalf of the Respondent Defendants.

THE MASTER OF THE ROLLS
1

The Westland Holding Company and its subsidiaries produce hovercraft in England. In 1965 there were negotiations between them and businessmen in Italy, with a view to providing hovercraft services in the Bay of Naples between the City of Naples and the islands of Ischia and Capri. As a result of those negotiations, agreements were made in January 1967 whereby one hovercraft was to be let on hire to the Italian concerns and another sold to them at specified prices. The agreements contained a stipulation that, if the Italian company had claims against the English company, those claims were to be brought in the English Courts and decided according to English law.

2

Attempts were made to bring this hovercraft service into operation in the Bay of Naples, but these have not been successful. The result has been this litigation. On 3rd December 1969, the Italian company — Aeronave S.P.A. and an Italian citizen — Aldo Cerciello — issued a writ against the Westland group of companies. The claim was for damages for alleged misrepresentation, for breaches of warranty, and breaches of contract. The sums claimed as damages ran into a sum of £330,000. Three weeks later, the English company brought an action against the Italian concern and some guarantors claiming moneys as being due to them for hire of the hovercraft and for the price. The English company claim sums in the region of £270,000.

3

The question now is as to security for costs. The application is made in the action which the Italians have brought here against the English company. The English company ask for security for costs so that they may be protected in case the Italians fail. The Master, affirmed by the Judge, has ordereda sum of £3,500 to be paid as security for costs. The Italians now appeal to this Court, They say that under Order 23, rule 1, it is a matter of discretion of the Court. They say that the Judge, if left to himself, would not have ordered security; but he felt bound to order it owing to previous authority in this Court.

4

The present rule certainly does give a discretion. Order 23, rule 1, says:

5

"1(1)Where, on the application of a defendant to an action or other proceeding in the High Court, it appears to the Court —

6

(a) that the plaintiff is ordinarily resident out of the jurisdiction….then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the...

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78 cases
2 books & journal articles
  • A REVIEW OF DEVELOPMENTS IN SELECTED AREAS OF CIVIL PROCEDURE1
    • Singapore
    • Singapore Academy of Law Journal No. 1996, December 1996
    • 1 December 1996
    ...150 Ibid, at p 393. Also see Porzelack Kg v Porzelack (UK)[1987] 1 ALL ER 1074, at p 1077; Aeronave v Westland Charters Ltd[1971] 3 ALL ER 531, at p 533. 151 [1995] 3 SLR 388, at pp 396—397, 398. 152 Times, 2/5/1995 (judgment dated 7 April, 1995). 153 Anne Joseph Aaron v Cheong Yip Seng (su......
  • Selected Judgments
    • Jamaica
    • Telford Georges: A Legal Odyssey
    • 21 November 2008
    ...it would not be fair and just if he had then to go to a foreign country to enforce the order ( Aeronave SPA v Westland Charters Ltd. [1971] 3 All ER 531, at p. 533). In all cases, the court has a discretion whether or not to make an order for security for costs against a foreign plaintiff. ......

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