Metall Und Rohstoff A.G. (Respondents (Plaintiffs) v Donaldson Lufkin & Jenrette Inc. and Another (Appellants

JurisdictionEngland & Wales
Judgment Date14 February 1989
Judgment citation (vLex)[1989] EWCA Civ J0214-7
Docket Number89/0160
CourtCourt of Appeal (Civil Division)
Date14 February 1989
Metall Und Rohstoff A.G.
Respondents (Plaintiffs)
(1) Donaldson Lufkin & Jenrette Inc.
(2) AML Holdings Inc.
Appellants (Defendants)

[1989] EWCA Civ J0214-7


Lord Justice Slade

Lord Justice Stocker


Lord Justice Bingham








Royal Courts of Justice

MR. SAMUEL STAMLER Q.C., and MR. T.P.G. IVORY (instructed by Messrs D.J. Freeman & Co.) appeared on behalf of the First Appellants (First Defendants).

MR. ANTHONY GRABINER Q.C., and MR. NICHOLAS STADLEN (instructed by Messrs Freshfields) appeared on behalf of the Second Appellants (Second Defendants).

MR. MARK WALLER Q.C., MR. RAYMOND JACK Q.C., MR. IAN GEERING, and MISS LOUISE EDWARDS (instructed by Messrs Herbert Smith) appeared on behalf of the Respondents (Plaintiffs).


(as to costs and ancillary matters)


This is the judgment of the court.


On 27th January 1989 we gave judgment on this appeal, but at the request of the parties stood over all questions relating to costs and to possible appeals to the House of Lords to be dealt with at a later date.


As to costs, we have been told that it has now been agreed between all parties that there should be no order as to costs in this court and in the court below. We so direct, and accordingly discharge the order of Gatehouse J. relating to costs.


We have also been told that since the argument on the appeal was concluded in November last, M & R. have issued two further sets of proceedings. First, on 8th December 1988, they commenced a new action in this country (which we will call "the new English action") which includes claims which were referred to during the course of the argument before us, but were held by us not to be open to them on their points of claim as they now stand.


Secondly, M & R. on 12th January 1989 commenced a new action in the United States of America (which we will call "the new U.S.A. action") pleading certain causes of action which M & R. contend are not time barred in the United States of America.


D.L.J. and A.C.L.I. now both apply for leave to appeal from our judgment to the House of Lords. Mr. Stamler on behalf of D.L.J., and Mr. Stadlen on behalf of A.C.L.I., have each identified certain particular parts of our decision which they would seek to challenge. The principal parts are those sections dealing with the rule in Boyes v. Chaplin, the place where the relevant torts were committed, and the application of the Spiliada test. We think that these are all points fit for their Lordships consideration and, subject to certain matters urged on us by Mr. Waller on behalf of M & R., would be minded to give D.L.J. and A.C.L.I. leave in general terms to appeal from our decision.


In this context, however, Mr. Waller has made two submissions with which we will deal in the reverse order in which he advanced them. First, he submitted that D.L.J. and A.C.L.I. should not be given leave to appeal to the House of Lords unless a condition is imposed on such leave requiring them to give an undertaking in effect to use their best endeavors to co-operate in ensuring the speedy progress of the new English action, so that those issues may be considered by the House of Lords together with the issues raised by M & R.'s proceedings issued in this country in 1987. As to this submission, we would say shortly that we can see no sufficient grounds for imposing any such condition.


Mr. Waller's second submission which, in our judgment, has more substance is that D.L.J. and A.C.L.I. should be given leave to appeal only on the basis that they both agree that the new U.S.A. action shall be stayed, pending final determination by the House of Lords of the appeal from this court's judgment.


Mr. Waller's submission is in brief this. The new U.S.A. action was begun in case this court or (on further appeal)...

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