Allen v Jambo Holdings Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE SHAW,LORD JUSTICE TEMPLEMAN
Judgment Date20 July 1979
Judgment citation (vLex)[1979] EWCA Civ J0720-1
Docket Number1979 O. No. 757

[1979] EWCA Civ J0720-1

In The Supreme Court of Judicature

Court of Appeal

On Appeal from The High Court of Justice

Queen's Bench Division

(Mr. Justice Bristow)

Before:

The Master of the Rolls (Lord Denning)

Lord Justice Shaw and

Lord Justice Templeman

1979 O. No. 757
Ruth Allen (for herself as Executrix of the estate of Harry Allen deceased)
First Plaintiff
(Appellant)
and
Caroline Commander (an infant) by her Next Friend the First Plaintiff)
Second Plaintiff
(Appellant)
and
Simon Commander (otherwise Allen (an infant) by his next Friend the First Plaintiff)
Third Plaintiff
(Appellant)
and
Arnold Israel and Stephen Allen as Executors of the Estate of Harry Allen deceased
Fourth Plaintiff
and
Jambo Holdings Limited
First Defendants
(Respondents)
and
John Eishark
Second Defendant
(Respondent)
and
Rolls Royce Limited
Third Defendants

MR. H. BURTON (instructed by Messrs. J. Israel, Arnold & Strange) appeared on behalf of the First, Second and Third Plaintiffs (Appellants).

MR. D. O'BRIEN (instructed by Messrs. Barlow Lyde & Gilbert) appeared on behalf of the First and Second Defendants (Respondents).

MR. R. WELLS (instructed by Messrs. Bermont & Sons) appeared on behalf of the Third Defendants.

THE MASTER OF THE ROLLS
1

A man's head got caught in a propeller. He was decapitated and killed. It was at the Leavesden Aerodrome, near Watford. There was a small twin-engined aircraft there. It belonged to a Nigerian company called Jambo Holdings Limited. It had come into this country for servicing and to qualify for a certificate of air-worthiness. All was in order for its return to Nigeria. It was due to leave on the evening of Saturday, 27th January, 1979. The first leg to Gatwick, then on to Nigeria.

2

The pilot John Eismark had agreed to take two passengers with him on the first leg from Leavesden to Gatwick. Two friends were to go to see them off. They were Mr. Harry Allen and his wife Ruth Allen. Earlier in the evening Mr. Allen himself had gone with the pilot to the aerodrome to help load some of the heavier luggage into the aircraft. Afterwards they both returned to fetch the others and the hand luggage. The pilot went ahead to test the engines. It was a cold, icy night, and he wanted to see that there was no ice on the wings arid the propellers: and to see that everything was in order. He was in the cockpit making those checks when Mr. Allen, his wife and the two passengers (who were going aboard the aircraft that evening) arrived by car. As the car approached the aircraft, the pilot switched on the lights of the aircraft. The car driver had his lights on as he drew near. The pilot waved him on. The motor car backed to a distance of about 10 yards from the aircraft. Then the passengers and Mr. Allen his wife got out to go to the aircraft. Mr. Harry Allen was carrying a bag on his shoulder. He went first and the others followed after. It was then the accident happened.Mr. Allen's head became caught in the propeller. He was killed. It was a tragedy.

3

There was an inquest. It was held on the 1st March, 1979. The coroner found a verdict of accidental death. As soon as the inquest ended, the pilot told the solicitor for the widow that he intended to fly the aircraft back to Nigeria immediately. The solicitor was afraid that any claim by the widow for damages would be fruitless if the aircraft was flown back to Nigeria. It would be very difficult to enforce any judgment in Nigeria. The solicitors tried to discover whether the aircraft was insured with an English insurance company: but they failed. So on the next day they took steps immediately. They instructed counsel. Counsel telephoned Mr. Justice Drake and explained the circumstances to him. The judge granted a Mareva injunction to restrain the Nigerian company and the pilot from removing the aircraft from the jurisdiction until after the hearing of a summons. The aircraft has remained at Leavesden Aerodrome ever since. The injunction was continued by agreement. No request was made for it to be discharged. The reason was because more work had to be done on the aircraft: and further tests were to be made. From March until June nothing was done by the Nigerian company or anyone on its behalf to try and discharge the injunction.

4

Then on the 19th June - that is, last month - a summons was taken out by a well known firm of solicitors who act for insurance companies in the City of London. They applied for the injunction to be discharged. Affidavits were sworn on both sides. It was heard by Mr. Justice Bristow. He realised that it was a now and important case. After careful consideration he decided to discharge the injunction. But he intimated thatit was a suitable case for appeal to this court. So he gave leave to appeal.

5

It is a new case altogether. In the past Mareva injunctions have been confined to the commercial court. The judges of that court have granted injunctions to restrain foreign companies from removing monies so as to defeat their creditors. The leading case is Rasu Maritima S.A. v. Perusahaan (1978) 1 Queen's Bench 644, coupled with a very recent case, Third Chandris v. Unimarine (1979) 3 Weekly Law Reports 122. Those were commercial cases. But this is new. Not because it concerns an aircraft. There was one case where an aircraft ran up a bill for fuel. Its bill was not paid. The aircraft was restrained from moving until it was paid. But this is the first case we have had of a personal injury - this is a fatal accident case - where a Mareva injunction has been sought. The nearest parallel is a ship in an English port where there is an accident causing personal injuries or death. It has been settled for centuries that the claimant can bring an action in rem and arrest the ship. She is not allowed to leave the port until security is provided so as to ensure that any proper claim will be duly met.

6

The question in this case is whether a similar jurisdiction can be exercised in regard to an aircraft. In principle I see no reason why it should not, except that it is to be done by a Mareva injunction instead of an action in rem. The real difficulty is that we do not know the rights or wrongs of this accident. The widow alleges that the pilot knew that people were coming aboard with the luggage; he knew that they were approaching the doorway close to the propeller: he ought eitherand stopped the propellers going round. On the other hand, it is alleged against Mr. Harry Allen that he ought to have known better; he could hear that the engines were running; and that any person taking reasonable care of himself would not have gone close to the propellers as he did.

7

There are the two sides. It cannot be decided today. It has to be decided in the action. As the judge says, it may be that the owners of the aircraft are wholly liable or it may be that Mr. Harry Allen was wholly liable: or it may be half and half. All that can be said is that the widow and her children have a good arguable case for claiming damages on the ground that it was at least in part the fault of the pilot. That is sufficient. We said so in Rasu v. Pertamina (1978) 1 Queen's Bench at page 663: and, as we also said there, the Mareva principle applies not only to money but also to goods. So it applies to this aircraft.

8

On the evening of the 2nd March, all the plaintiffs knew was that the aircraft was about to fly off to Nigeria. It was Nigerian owned. For ought that anyone knew, if the aircraft went off, it might never return. The widow would have great difficulty in getting any damages if they were awarded to her. That was quite sufficient to warrant tie judge in granting the Mareva injunction.

9

The...

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