Jet Holdings Inc. v Patel

JurisdictionEngland & Wales
JudgeLORD JUSTICE NICHOLLS,LORD JUSTICE STAUGHTON
Judgment Date09 March 1988
Judgment citation (vLex)[1988] EWCA Civ J0309-1
Docket Number88/0208
CourtCourt of Appeal (Civil Division)
Date09 March 1988
Jet Holdings INC.
Jet Executive Travel INC.
Princess Productions INC.
Respondents (Plaintiffs)
and
Bachu Patel (Otherise Known as Harshad Jashbhai Patel)
Appellant (Defendant)

[1988] EWCA Civ J0309-1

Before:-

Lord Justice Nicholls

and

Lord Justice Staughton

88/0208

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

(MR. PATRICK BENNET Q.C. (sitting as a deputy High Court Judge)

Royal Courts of Justice

MR. L. SMITH Q.C. and MR. D CRYAN (instructed by Messrs T. Cryan) appeared on behalf of the Appellant (Defendant).

MR. M. BURTON Q.C. and MR. E. KELLY (instructed by Messrs Tarlo Lyons Randall Rose) appeared on behalf of the Respondent (Plaintiffs).

LORD JUSTICE NICHOLLS
1

I will ask Lord Justice Staughton. to deliver the first judgment.

LORD JUSTICE STAUGHTON
2

This action is brought to enforce a foreign judgment, that is to say a judgment of the Superior Court of the State of California for Los Angeles County. The defence is, firstly, that the judgment was obtained by fraud. Alternatively, it is said that the proceedings in which the judgment was obtained were opposed to natural justice. The present proceedings are for summary judgment in the English action under Order 14. The defendant, Mr. Patel, says that he should have leave to defend on those grounds or that, in terms of Order 14, rule 3, there ought for some other reason to be a trial of the action.

3

The facts are on any view unusual. From 1980 or 1981 until 1983 Mr. Patel worked as an accountant in California for the three companies which are plaintiffs in this action. Mr. Don Arden is the President of those companies, and appears to be in charge of their affairs. He has an address in Wimbledon, London SW19. The companies were engaged in the popular music business. In November 1983 Mr. Arden claimed that Mr. Patel had wrongfully misappropriated large sums of money from the companies, and summarily dismissed him. Mr. Patel denies that there had been any wrongful misappropriation.

4

There followed, according to Mr. Patel, three occasions when actual or threatened violence was directed at him by or on behalf of Mr. Arden, with the object of inducing him to repay money to the companies. I need not state the details of those three occasions at any length, but only the broad outline. The first was in November 1983, in California. Mr. Patel says that Mr. Arden pulled a gun from his brief case and threatened to shoot him. He also threatened to frighten Mr. Patel's parents and said that he would send his "friends" over to the United Kingdom. He made it clear that his "friends" were members of the New York Mafia. Mr. Arden is also said to have thrown several objects at Mr. Patel and punched him in the face.

5

The second occasion was in England, where Mr. Patel promptly went after the first occasion, on 7th December 1983. Mr. Patel says that he was taken from his parents' house by threats to Mr. Arden's address in Wimbledon and there, as he says, he was threatened and beaten up by Mr. Arden and forced to sign a document instructing his bank to release the equivalent of $100,000.

6

The third incident also occurred in England, on 14th February 1984. At nine o'clock in the morning Mr. Patel says that he was persuaded by threats to go to the plaintiffs' headquarters in London. He says that there he was threatened, hit and punched by Mr. Arden and his associates, and kept captive until the following morning. Eventually he was released upon his promise to pay the sum of £10,000 in one month's time.

7

All that is strenuously denied by Mr. Arden. Mr. Patel did not pay the second sum of £10,000, instead he went to the police. As a result, Mr. David Arden, the son of Mr. Arden, and two gentlemen who were accountants were prosecuted at the Central Criminal Court. At that stage Mr. Arden senior was not prosecuted. The accountants were acquitted, but Mr. David Arden, under his actual name of David Levy, was convicted of

  • (1) conspiracy to make an unwarranted demand with menaces; and

  • (2) false imprisonment.

8

He was sentenced to two years' imprisonment, of which one year was to be suspended. Much later Mr. Arden senior was also prosecuted; he was acquitted.

9

Meanwhile, on 30th May 1984, the plaintiff companies commenced their action in the Californian Court against Mr. Patel. Their monetary claim amounted to $168,000, and they also sought punitive damages in the sum of $2m. Mr. Patel's first response was to start an action in England against Mr. Arden and the two acountants, claiming the return of his $100,000 or the sterling equivalent. A statement of claim was served against the accountants only, Mr. Arden not having been served with the writ. That was signed by counsel and alleged conspiracy, assault, false imprisonment and conversion. The action has not since proceeded. Then, on 23rd July 1984, Mr. Patel entered an appearance in the American action, and served an answer to the plaintiffs' complaint. He says that he did this on the advice of his English solicitors and counsel, who were different from those representing him today. That was a most important step, since it acknowledged the jurisdiction of the American Court. If it had not been taken, I presently do not see any ground upon which the American judgment could have been enforced in this country. But, as it was, an appearance was entered, an answer was filed and, on 26th November 1984, Mr. Patel filed a cross claim there against the present plaintiffs, Mr. Arden and a number of others.

10

In the proceedings that ensued, there are three particular matters to note. First, on 7th November 1984 the American Court heard an application that Mr. Patel's deposition be taken in Los Angeles. The application was made on behalf of the plaintiffs. It was opposed, with evidence from Mr. Patel that he did not wish to visit the United States because, if he did so, he would be in fear of his life owing to the violence and threats which he had suffered previously. There was, however, at the same time an assertion by his American lawyer that he would be present later at the trial. It is not altogether easy to reconcile that statement with Mr. Patel's assertion that he was afraid to go to the United States. No doubt he could be cross-examined about that, if it were ever material. On that occasion the judge refused the application. We have no note as such of the judge's reasons, but there is some indication that he did pay regard to Mr. Patel's fears.

11

Nearly a year later, on 25th October 1985, the American Court made an order that Mr. Patel attend two doctors in Los Angeles for physical and medical examination on 7th and 8th January 1986. That was no doubt relevant to the assertion in his cross complaint that he had suffered injury which was continuing. The order which the court made on that occasion continued:

"3. The expense of BACHU PATEL'S travel to Los Angeles, including air fare, motel and meals, is to be borne by Plaintiffs and Coss-Defendants, who shall make the necessary arrangements in advance.

4. If BACHU PATEL desires, he may select a security guard to guard him during his stay in Los Angeles, the expense of which shall be borne by Plaintiffs and Cross-Defendants".

12

Mr. Patel did not comply with that order. His explanation was as follows:

"On January 5, 1986, I telephoned British Airways in order to verify the existence of a prepaid ticket in my name paid for by Jet Executive Travel for passage from London to Los Angeles, California. I was advised that no such prepaid ticket existed. In view of that fact, I did not go to Heathrow Airport on January 6, 1986, as I had previously planned".

13

There is evidence which suggests that this explanation was untrue. On 10th February 1986 the American Court made an order excluding evidence that Mr. Patel had suffered any physical or mental injury at the hands of the plaintiffs.

14

The question of the deposition of Mr. Patel in Los Angeles was raised again before the American Court by the plaintiffs on 27th February 1986. It was again opposed on his behalf on the ground that he should not be forced to endanger his life by going to Los Angeles. On this occasion an order was made for the deposition to be taken in Los Angeles, on 28th and 29th April 1986. The plaintiffs were again to bear the cost involved, including the cost of a security guard.

15

Mr. Patel did not attend. He claimed, for the second time, that an air ticket had not been provided. There is again evidence which suggests that this explanation was untrue. As Mr. Swift points out, the American Court had ruled against his submission that he ought not to be obliged to put his life in danger, so it may be Mr. Patel felt that some other reason must be found to justify his not having complied with the court's order.

16

By that time Mr. Patel's American lawyers had ceased to act for him and had been removed from the record. He says in his affidavit that he did not have the means to instruct them adequately, since the plaintiffs had extorted the sterling equivalent of $100,000 from him by violence and threats.

17

Eventually, on 11th June 1986, the American Court ordered:

  • (1) That the cross-complaint be dismissed;

  • (2) That the answer be stricken; and

  • (3) That default be entered against Mr. Patel.

18

On that occasion the judge read and considered, as he noted on the document, a declaration by Mr. Patel, in which he again gave brief details of the threats and violence which he had suffered, stated that he had no money left to pay his lawyers, and repeated that airline tickets had not been provided on the two occasions when he had failed to attend in Los Angeles. We have no direct evidence as to whether the...

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