Lonkar v J.o. Sims Ltd
| Jurisdiction | England & Wales |
| Judge | SIR JOHN BALCOMBE,LORD JUSTICE WALLER,LORD JUSTICE MORRITT |
| Judgment Date | 28 January 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0128-15 |
| Docket Number | QBENI 97/O696/E |
| Court | Court of Appeal (Civil Division) |
| Date | 28 January 1998 |
[1998] EWCA Civ J0128-15
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR MICHAEL TUGENDHAT QC)
Sitting as a Deputy Judge of the High Court
Royal Courts of Justice
Strand
London W2A 21L
Lord Justice Morritt
Lord Justice Waller
Sir John Balcombe
QBENI 97/O696/E
MR B GHORPADE (instructed by Messrs G Singh, London W5 2PJ) appeared on behalf of the Appellant (Plaintiff).
MR MURRAY ROSEN QC (instructed by Messrs Isadore Goldman, London WClV 6QF) appeared on behalf of the Respondent (Defendant).
This is an appeal, with the leave of the full court, from an order dated 13 September 1966 made by Mr. Michael Tugendhat QC (sitting as a Deputy Judge in chambers) directing that the Plaintiff should give security for the Defendant's costs in the sum of £2O,OOO. In so doing the judge reversed a decision of Master Rose who, on different material, had refused to order such security.
By his writ issued on lO April 1996 the Plaintiff, who is resident in India, claims against the Defendant an account and damages for breach of contract. Put shortly, the Plaintiff alleges that the Defendant, a London company carrying on the business of importing fruit into the United Kingdom, appointed him its sole agent in India to arrange the export of grapes from India to the United Kingdom, and to pay him a commission on the monies earned by the Defendant from the import of grapes from India. He further alleges that the Defendant, in breach of the agreement, dealt directly with grape exporters in India and wrongfully terminated its agreement with the Plaintiff. He asserts that there is commission due to him for the period prior to the termination of the agreement—hence the claim for an account—and claims damages for loss of commission arising from the wrongful termination of the agreement. The Defendant, by its Amended Defence served on 16 July 1996, admits that there was an agreement between the parties, but disputes the terms pleaded by the Plaintiff. In particular, the Defendant asserts that it was a term of the agreement that the Plaintiff would act exclusively for the Defendant and would not deal with any other entity wishing to import grapes into the United Kingdom from India. In breach of that term the Plaintiff did act for other importers of grapes from India to the United Kingdom, and the Defendant accepted that act as being a repudiatory breach of contract. The Defendant also alleges that under the agreement it was free to deal directly with suppliers from India, but that it would, and did, pay the Plaintiff commission on all grapes received from India, whether or not through the agency of the Plaintiff.
As the Plaintiff is resident out of the jurisdiction, the Defendant applied for security for costs, a request for such security having been refused by the Plaintiff's solicitors. Before the judge the Plaintiff had put in an affidavit by his solicitor exhibiting an advice from a firm of advocates and solicitors in Bombay, to the effect that any order for costs made here against the Defendant could be enforced in a District Court in India. The advice set out the relevant provisions of the Indian Civil Procedure Code and continued:
"in these circumstances, the above provision make (sic) it abundantly clear that a decree passed of a Superior Court of a foreign jurisdiction in a reciprocating territory is directly executable in India and proceedings in execution can straight away commence upon filing an application in accordance with the requirement of Sec. 44-A. Upon filing of the certified copy of the decree, it is executable as if it is a decree passed by an Indian Court and all proceedings in execution are thus available as per Sec. 47 of the Civil Procedure Code."
There was no evidence before the judge of the time which such proceedings might take in India, nor was there before him any evidence of the Plaintiff's ability to meet any execution that might be levied upon him in India. The Plaintiff also asserted that the Defendant had an office in India which gave it access to a local court.
The judge gave a full and careful judgment. He considered the several authorities to which he had been referred and expressed his conclusion in the following passage:
"it follows that I consider I have to apply the guidance given in the White Book to the effect that that it is the usual, ordinary or general rule of practice for the Court to require foreign plaintiffs to give security for costs. I can see nothing in the material before me which leads me to think that I should depart from that rule, and insofar as I can properly look at the merits, as I have said, I think on the whole they tend to reinforce that view and assist the Defendants rather than the Plaintiff."
Before us the Plaintiff sought to put in further evidence dealing with the position as to the enforcement of an English order for costs in India. Strictly such evidence was inadmissible—see Thune v. London Properties Ltd. [1990] l W.L.R. 562—but Mr. Murray Rosen, QC, for the Defendant, expressly waived any objection to its...
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