Derby & Company Ltd v Larsson
| Jurisdiction | England & Wales |
| Judge | Viscount Dilhorne,Lord Simon of Glaisdale,Lord Salmon,Lord Fraser of Tullybelton,Lord Russell of Killowen |
| Judgment Date | 28 January 1976 |
| Judgment citation (vLex) | [1976] UKHL J0128-3 |
| Date | 28 January 1976 |
| Court | House of Lords |
[1976] UKHL J0128-3
House of Lords
Viscount Dilhorne
Lord Simon of Glaisdale
Lord Salmon
Lord Fraser of Tullybelton
Lord Russell of Killowen
Upon Report from the Appellate Committee, to whom was referred the Cause Derby & Co. Limited against Larsson, That the Committee had heard Counsel for the Appellants, on Monday the 15th day of December last, upon the Petition and Appeal of Derby & Co. Limited of Moor House, London Wall, London EC2Y 5JE, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 26th of February 1975, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet (which said Appeal was heard ex parte as to the Respondent Stig Larsson, he not having lodged a Case in answer to the said Appeal, though ordered so to do); and due consideration being had of what was offered for the said Appellants:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal, of the 26th day of February 1975, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Ackner of the 10th day of July 1974 and also the Judgment of the Honourable Mr. Justice Donaldson of the 22d day of November 1974, thereby Set Aside, be, and the same are hereby, Restored: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Russell of Killowen. I agree with it and with his conclusions and I wish only to add a few observations.
When a court is required to consider whether an action begun by a writ or a counterclaim has been "properly brought", I doubt very much whether the court has to consider whether or not the claim or counterclaim is made bona fide or for some improper purpose. For a court to do that appears to be likely to involve something of the nature of a trial before the trial of the action. I am inclined to think that "properly brought" in Order 11 Rule 1 subrule (1)(j) means no more than brought in accordance with the Rules of Court. But it is not necessary to decide as to that in this appeal for there is no question as to the genuineness of the appellants' counterclaim against the Swedish company which is suing them.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Russell of Killowen. I agree with it, and I would therefore allow the appeal.
R.S.C. Ord. 11, r. 1(1)(j) represents a concern to hold in balance two considerations which are liable to conflict. On the one hand there is the principle of international law that the courts of this country will not as a general rule seek to exercise jurisdiction over persons resident outside the territorial limits of their jurisdiction. On the other hand there is the desirability that, in legal proceedings in this country, all such persons should be before the court as are required for justice to be done.
Ord. 11, r. 1(1)(j) holds the balance between these two considerations by certain requirements which must be met for the court at all to have jurisdiction under it, and by a residual discretion even if these requirements are met. Two of the requirements which must be met are contained in the rule itself. First, the action (which includes a counterclaim in an action: Ord. 15, r. 3(1) and (5)) must be properly brought against a party within the jurisdiction—i.e., it must be so brought in accordance with law, in particular the procedural code set out in the Rules of the Supreme Court ( John Russell & Co. Ltd. v. Cayzer, Irvine & Co. Ltd. [1916] 2 A.C. 298). Secondly, the writ (or, as the case may be, the counterclaim) in the action must be duly served (i.e., in accordance with law, particularly the R.S.C.) on such party within the jurisdiction.
These two requirements generally involve a third limitation; namely, that jurisdiction under paragraph (1)(j) cannot be founded on service made by virtue of another paragraph of Ord. 15, r.1 (1)—i.e., it is independent of the other heads, not cumulative.
But, even when these stipulated limitations (available to a party outside the jurisdiction ex debito justitiae) are satisfied, the judge in chambers still has a discretion whether or not to allow service out of the jurisdiction by virtue of paragraph (j). He will exercise this discretion, mindful that Ord. 15, r.1., constitutes an invasion of general principles of international law (see Lord Porter in Tyne Improvement Commissioners v. Armement Anversois S/A [1949] A.C. 326, 338), in such a way as to conduce to justice and convenience. It is only in exceptional circumstances that the exercise of such a discretion should be displaced by an appellate court (cf. Evans v. Bartlam [1937] A.C. 473, 486; Charles Osenton & Co. v. Johnston [1942] A.C. 130, 138).
I agree with my noble and learned friend,...
To continue reading
Request your trial
-
Borealis AB v Stargas Ltd
...... of about 42,500 metric tons of liquid propane at the terminal of the Saudi Arabian Oil Company at Yanbu. The vessel sailed to Stenungsund in Sweden arriving there on 6th November. On arrival, ......
-
Glencore International AG v Exter Shipping Ltd
...in his favour, while seeking to distinguish authorities relied on by Moore-Bick J in his judgment such as Derby & Co v. Larsson [1976] 1 WLR 202, Republic of Liberia v. Gulf Oceanic Inc [1985] 1 Lloyd's Rep 539 and Balkanbank v. Taher (No 2) [1995] 1 WLR 1067. In his reply, however, Mr Si......
-
Microsoft Mobile OY (Ltd) v Sony Europe Ltd and Others
...of the House of Lords in Improvement Commissioners v. Armement Anversois SA (The Brabo) [1949] A.C. 32 and Derby & Co Ltd v. Larsson [1976] 1 W.L.R. 202, and of the Court of Appeal in Massey v Heynes & Co. (1888) 21 Q.B.D. 330 and Multinational Gas and Petrochemical Co v Multinational Gas a......
-
AK Investment CJSC v Kyrgyz Mobil Tel Ltd
...Gas & Oil Co v Hammer (No 1) [1971] 3 All ER 1025, followed by the proceedings reported at [1982] AC 888. In Derby & Co Ltd v Larsson [1976] 1 WLR 202 (HL) it was held that permission to serve additional defendants to the counterclaim could be obtained in such a case under what became RSC......