Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Viscount Dilhorne,Lord Salmon,Lord Fraser of Tullybelton,Lord Keith of Kinkel |
| Judgment Date | 06 July 1978 |
| Judgment citation (vLex) | [1978] UKHL J0706-2 |
| Date | 06 July 1978 |
| Court | House of Lords |
[1978] UKHL J0706-2
Lord Wilberforce
Viscount Dilhorne
Lord Salmon
Lord Fraser of Tullybelton
Lord Keith of Kinkel
House of Lords
Upon Report from the Appellate Committee to whom was referred the Cause Hesperides Hotels Limited and others against Muftizade, That the Committee had heard Counsel as well on Monday the 8th as on Tuesday the 9th, Wednesday the 10th, Thursday the 11th, Monday the 15th, Tuesday the 16th and Wednesday the 17th days of May last upon the Petition and Appeal of Hesperides Hotels Limited and Catsellis Hotels Limited of Kyrenia, Cyprus 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 23rd day of May 1977 so far as regards the words "(ii) the Writ herein be set aside as against the second Defendant (iii) the costs of this appeal be taxed by a Taxing Master and paid by the Plaintiffs to the second Defendant or his Solicitors" might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order so far as aforesaid 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; as also upon the Case of Omer Faik Muftizade lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
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 23rd day of May 1977 in part complained of in the said Appeal be, and the same is hereby, Varied by restoring the writ as against the Respondent Omer Faik Muftizade so far and only so far as the statement of claim as amended on 17th May 1977 under Order 20 Rule 3 of the Rules of the Supreme Court relates to the contents of the hotels and by setting aside the order as to Costs: And it is further Ordered, That the Appellants do pay or cause to be paid to the said Respondent the Costs incurred by him in respect of the proceedings before the Honourable Mr. Justice May in the Queen's Bench Division of the High Court of Justice and three quarters of the Costs incurred by him in the Court of Appeal and also, save for the Costs incurred by him in respect of the said Appeal to this House in the preparation and production of Volume II of the Respondent's Additional Documents, three quarters of the Costs incurred by him 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 if not agreed between the parties: 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,
This appeal is from an order of the Court of Appeal setting aside the appellants' writ against the respondent Mr. Omer Faik Muftizade for want of jurisdiction.
The appellants are two companies registered under the laws of the Republic of Cyprus: they are family concerns owned and controlled by Greek Cypriots. Before 1974, in which year Turkish forces took possession of areas in the north of Cyprus, these companies were owners of two hotels in Kyrenia, on the north coast. Hesperides Hotels Ltd. owned and operated one called the Hesperides; Catsellis Hotels Ltd. one called the Dome. After the Turkish invasion those who controlled the appellants left Kyrenia and went to Limassol, which is on the southern coast and is in the Greek Cypriot area. In 1976 it came to their knowledge that efforts were being made in London to organise holiday tours to the hotels. There was a body calling itself the Turkish Federated State of Cyprus which issued brochures; there was a travel agency called Aegean Turkish Holidays Ltd. which handled these brochures, and, it is said, accepted bookings for the hotels from intending holiday-makers in England. The Turkish Federated State of Cyprus has as its representative in London, Mr. O. F. Muftizade, respondent to this appeal.
On 16th February 1977 the appellants issued a writ with statement of claim endorsed against Aegean Turkish Holidays Ltd. and Mr. Muftizade claiming damages, in effect for conspiracy, an account of profits and an injunction restraining the defendants from conspiring to procure acts of trespass to the appellants' hotels. They also issued, on 4th March 1977, a summons claiming an interim injunction in the same terms. The respondent, Mr. Muftizade, entered a conditional appearance and himself issued a summons for an order setting aside the writ. These summons came for hearing before May J. on 1st April 1977.
The respondent's contentions, at this stage, were twofold. First he claimed immunity from suit on the basis that the Turkish Federated State of Cyprus was a foreign sovereign state and that he was its representative. Secondly he contended that the court had no jurisdiction to entertain the action upon the principle established by this House in British South Africa Co. v. Companhia de Mocambique [1893] A.C. 602 (the " Mocambique case"). To enable himself to deal with the first point May J. addressed an enquiry to the Secretary of State, Foreign and Commonwealth Office, asking whether Her Majesty's Government recognised, de jure or de facto, the Turkish Federated State of Cyprus and whether Her Majesty's Government accords any diplomatic privilege to the respondent. On 6th April 1977 the Secretary of State replied giving a negative answer to each of these questions. These replies disposed of the respondents first contention on the second point the learned judge decided that the court had jurisdiction to try a claim based upon a conspiracy to procure trespass to foreign land when the conspiracy took place in this country and there were overt acts in this country. He granted an interim injunction in the terms claimed and dismissed the respondent's summons.
On 13th May 1977 a consent order was made against the Aegean Turkish Holidays Ltd. under which they submitted to a perpetual injunction restraining them from conspiring or acting in any way to procure trespasses to the hotels and to an order for payment to each appellant of £10 by way of damages for conspiracy to trespass. It is asserted in the respondent's case (their Lordships accept in good faith), in support of his contention that there had been an accord and satisfaction, that this sum has been paid, but it was conceded, on the hearing of the appeal, that this fact could not be established.
The respondent appealed against the order of May J. to the Court of Appeal and added, by leave, an additional ground, that the Statement of Claim disclosed no reasonable cause of action and/or should be struck out as an abuse of the process of the court. At the hearing of the appeal the respondent adduced voluminous additional evidence directed to showing the development since 1974 of affairs in Cyprus and to proving the actual situation prevailing in the island. This was to be the foundation of an argument in the Court of Appeal and in this House that, in spite of the certificate of the Secretary of State, there was an autonomous administration in each part of Cyprus of which and of whose "legislation" the court can take note. The appellants objected to this evidence on the ground that it contradicted the certificate of the Secretary of State, that it was contentious, and that they had no opportunity to answer it. The Court of Appeal however admitted it.
Further, in the course of the hearing before the Court of Appeal, the appellants amended their statement of claim alleging a conspiracy to procure trespasses to the contents of the hotels, no doubt with the expectation of thereby escaping from the consequences of the rule in the Mocambique case.
The Court of Appeal unanimously allowed the respondent's appeal but differed in the reasons they gave for doing so.
Roskill L.J. and Scarman L.J. held that the action was precluded by the rule in the Mocambique case, none the less though it was presented in the form, or guise, of a conspiracy. They also held that the action was not maintainable as regards the chattels (contents of the hotels) since it was based upon trespass (not conversion) and since the appellants were admittedly out of possession.
Lord Denning M.R. held that the Mocambique rule should be confined to cases where there is a dispute as to title and that the court should have jurisdiction to try a claim based on a conspiracy in England. He held however that the action, being an action in tort, was not maintainable because the acts complained of were not lawful under the lex loci actus: notice could be taken of the "laws" of the Turkish Federated State of Cyprus which authorised the acts. Moreover public policy rendered the dispute not justiciable in England there being two conflicting administrations in Cyprus.
I shall consider first the question whether the present action is precluded by the rule in the Mocambique case. The appellants' arguments are threefold:
First they contend that the rule established by that case has no application where there is no dispute as to the title to foreign land and (I use their words) "no real dispute over the right to possession of the foreign land". This result, they say, can be reached by a process of interpretation of the decision of this House without departing from it.
Secondly they invite your Lordships to overrule, or depart from, the decision in the Mocambique case, at least to the extent necessary to allow the present action to be brought.
Thirdly they argue that the rule has no application to an action based on...
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