Kamouh v Associated Electrical Industries International Ltd
|England & Wales
|Queen's Bench Division
Practice - Parties - Missing person - Administrator appointed under Lebanese law bringing action on behalf of missing person - Whether administrator's title to sue recognised in England - Whether missing person should be substituted as plaintiff -
The plaintiff's brother had rendered services to the defendants in 1967. In May 1967, the first defendants in a letter to him stated that they recognised that he was in effect out of pocket to the extent of £100,000 in respect of those activities. In reply to a letter from him, the defendants wrote in March 1970 to deny that there was any agreement to pay him remuneration and added that, although he had been paid substantial sums on account of out-of-pocket expenses, he had failed to deliver any account in respect of these; they added that no further payments would be forthcoming in respect of disbursements until a detailed account supported by evidence of payment had been rendered. Subsequently, he left his residence in Paris and could not be found. In accordance with Lebanese law, he was declared absent and the plaintiff was appointed his judicial administrator and authorised to bring an action in respect of his claims against the defendants for remuneration and reimbursement in connection with services rendered to the defendants in 1967. The plaintiff, relying on the status accorded to him by the order of the Lebanese court and on the defendants' letter of March 1970 as constituting an acknowledgment of the claim for the purposes of section 23 (4) of the Limitation Act 1939,F2 issued a writ against the defendants in 1975.
On the question whether the action could be maintained: —
Held, dismissing the action, (1) that, although the plaintiff had, under Lebanese law, a good title to sue in the English courts in his representative capacity, that title was not recognised in the English courts since English law did not provide for the safeguarding of the property and affairs of absent persons, save where leave to swear death and an English grant of probate or administration was obtained (post, pp. 798G–H, 800H–801B).
(2) That, although an acknowledgment of a claim within the meaning of section 23 (4) of the Limitation Act 1939 did not have to specify that a certain sum was due, it did have to amount to an admission of indebtedness of a sum that was capable of being ascertained from extrinsic evidence; that the statements in the letter of March 1970 that moneys had been paid on account and that moneys might be due were not admissions of indebtedness and, therefore, that letter could not be construed with the earlier letter of May 1967 as an acknowledgment that the defendants owed the plaintiff's brother remuneration and expenses and, accordingly. the claim was statute-barred (post, pp. 803C–D, H–804A).
(3) That, since the claims were statute-barred at the date the writ was issued, the court could not grant leave to amend the writ under R.S.C., Ord. 20, r. 5 by substituting the brother as plaintiff and, therefore, the question whether, in the circumstances, such leave should be given did not arise (post, p. 804A–C).
The following cases are referred to in the judgment:
Macaulay v. Guaranty Trust Co. of New York (
Matthews, In the Goods of [
Mabro v. Eagle, Star and British Dominions Insurance Co. Ltd. [
Scott v. Bentley (
Thiery v. Chalmers, Guthrie & Co. [
Young, decd., In re [
No additional cases were cited in argument.
By writ of October 24, 1975, and an amended statement of claim, the plaintiff, Sami Kamouh, in his capacity as administrator of a missing person, Antoine Elias Kamouh, claimed from the defendants, Associated Electrical Industries International Ltd. and Associated Electrical Industries Ltd., remuneration for Antoine Kamouh's services rendered in 1967 and reimbursement of expenses connected with the services. The defendants, by their defence, denied the plaintiff's title to sue and further maintained that the claim was outside the appropriate period of limitation.
Pursuant to an order of Master Lubbock, dated May 26, 1976, an application by the defendants that the plaintiff's right to bring the proceedings be tried as a preliminary issue together with the question whether the defendants had, in a letter dated March 9, 1970, acknowledged the claim for the purposes of section 23 (4) of the Limitation Act 1939, was referred to a High Court judge. Lawson J. in chambers on October 21, 1976, ordered that only the question of title should be tried as a preliminary issue. On appeal by the defendants, the Court of Appeal on January 28, 1977, ordered that both questions be so tried.
The facts are stated in the judgment.
Sir John Foster Q.C. and Gerald Levy for the plaintiff.
Leonard Hoffmann Q.C. and Judith Jackson for the defendants.
October 4. PARKER J. read the following judgment. In this action the plaintiff, Sami Kamouh, claims as administrator of Antoine Elias Kamouh against the defendants, Associated Electrical Industries International Ltd. and Associated Electrical Industries Ltd., and each of them, the sum of £100,000. This sum is alleged to be due to Antoine Kamouh as the unpaid balance of the sum of £200,000 said to have been expended by Antoine Kamouh on the defendants' behalf in March and April 1967 in connection with a contract between the defendants, or one of them, and the Kingdom of Saudi Arabia and reimbursable to him. The plaintiff further claims that there is due to Antoine Kamouh reasonable remuneration for procuring such contract for the defendants and that he, the plaintiff, is entitled to recover such remuneration. He claims a declaration to this effect and an order for the assessment of the amount of this remuneration.
I am not presently concerned with the merits of these claims, only with two preliminary points of law which have been ordered to be tried. The first, which is in two parts, is:
“(a) Whether the plaintiff has a title under the law of Lebanon to sue in his alleged representative capacity and, if so, (b) whether such title is recognised in English law.”
The facts relevant to the determination of this question fall within a narrow compass. Antoine Kamouh, on November 14, 1973, left his then residence in Paris. Since then neither his parents nor friends have received any news of him, nor did an investigation, started in France in order to determine what had happened to him, produce any positive result. As a result of these matters the plaintiff, his brother, took proceedings in the Lebanon to have him declared absent and himself appointed judicial administrator. These proceedings resulted in a judgment of the Fifth Chamber of the Court of First Instance in Beirut on February 1, 1974, of which the immediately material parts are:
“The court decides: (1) to consider Mr. Antoine Elias Kamouh as absent; (2) to appoint Mr. Sami Elias Kamouh as judicial administrator for the absent; (3) to entrust the judicial administrator to preserve the absent's properties and administrate them as a good father, without referring to the court in that respect; (4) to entrust the judicial administrator to recover the absent's debts; (5) to entrust the judicial administrator to bring actions on behalf of the absent, as plaintiff as well as defendant, in any action and before all courts, whatever may be their degree or nature … and that, after obtaining the authorisation of the president of the court...
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