Perry v Zissis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE ROSKILL |
| Judgment Date | 17 December 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J1217-3 |
| Docket Number | 1976 P. No. 1375 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 1976 |
[1976] EWCA Civ J1217-3
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Caulfield - London)
(Revised)
Lord Justice Megaw and
Lord Justice Roskill
Mr. MICHAEL BURKE-GAFFNEY and Mr. IAN GLICK (instructed by Messrs. William Heath & Co,) appeared on behalf of the Appellants (Plaintiffs).
Mr. GEOFFREY BRICE (instructed by Messrs. Holman Fenwick & Willan) appeared on behalf of the Respondents the First and Second Defendants.
The Respondents the Third, Fourth, Fifth, Sixth and Seventh Defendants did not appear and were not represented.
I shall ask Lord Justice Roskill to deliver the first judgment,.
We have before us two appeals from orders made by Mr, Justice Caulfield on the 2nd July last in which he refused the plaintiffs the relief which, they sought. I propose to refer to the two matters which concern us by their numbers, I shall call the first "1375", because the relevant writ number is 1976 P. No. 1375; and I shall call the second "2458", because the relevant writ number is 1976 P. No. 2458. The learned judge also had in front of him a third appeal. That appeal, the number of the relevant writ in which is "1614", was decided in the plaintiffs' favour, and there is no appeal from that order which the learned judge made; but I have to refer to "1614" in order to elucidate the complex story which has been related to us. Mr, Burke-Gaffney, if I may say so, has put before us everything that he possibly could; but I have no doubt that the learned judge made the right orders and that these two appeals must be dismissed. I would before I go further like to express my gratitude to Mr. Reisman, the plaintiffs' California attorney, who, in an admirably drawn affidavit with a number of useful exhibits, has explained to us the background law of California and of the United States which I have found not only extremely interesting but most helpful. Indeed he has come here to-day and through the mouth of Mr. Burke-Gaffney has been able to help by answering one or two questions which my Lord and I asked in relation to the practice and procedure in California.
The background is some highly complex litigation in the United States, The -plaintiffs are a group of ladies and gentlemen not unknown, as their names show, in the film industry. They were minded to invest in property in California. Like others who haveinvested in property, either in the United States or in this country, their investment has not been as beneficial to them as they would have hoped, and indeed this particular investment, unhappily, appears to have met with disaster. The gentleman in whose activities they hoped to invest was a Greek gentleman named Mr. James Zissis. Mr. Zissis not only had a Greek company called Zima Maritime S.A., which would seem to have been registered in the Piraeus, but he also had a number of United States companies (if I may so describe them): one was called American Plan Investment Corporation, which was a Californian company; another was called Trans-World Capital Corporation, another Californian company; and the third was called Trans-World Capital Corporation, the same name, but registered in the State of Delaware. There was yet a fourth company, also a Californian company, whose name appears in one of the documents to have changed at one point but which appears in 2458 as "Pangean Corporation". That, then, is the picture on the defendants' side. There is also involved a well known firm of Lloyd's brokers who used to be called Wigham Richardson and is now called Wigham Poland Ltd. The background to the dispute is an attempt by the plaintiffs to attach certain moneys payable under a Lloyd's policy of marine insurance, which Wighams have received as brokers, in the hope that that sum, about 500,000 dollars, can in one way or another be used to discharge the indebtedness of Zissis and his companies to the plaintiffs as a result of two judgments in the United States.
I need not go into a great deal of detail. There were started in the United States, so far as these proceedings are concerned, two actions. One was brought in the Superior Court of California and the other in the United States District Court Tor the Central District of California. One was thus brought in a State court and the other in a Federal court. At that time Mr. Zissis was still,so far as the evidence shows, resident in California. He appears at one time to have been a gentleman of some resources, for he was the registered owner of a yacht which, as I shall relate in a moment, subsequently sank, giving rise to the claim against Lloyd's underwriters; and that yacht was also in California.
In May, 1975, the plaintiffs applied to the Supreme Court of California for a writ of attachment. That application will be found on page 147 of the "1375" bundle of our papers. The application was made that there should be attached "all corporate property belonging to the defendants, American Plan Investment Corporation, Trans-World Capital Corporation and Trans-world Capital Corporation (Delaware). All that property of the defendant, James Zissis, described and specified in section 537.3 (b) of the Code of Civil Procedure of the State of California except as exempted by law". That application succeeded; and we have a sample order of the Superior Court of California at page 173, which made that attachment order at the instance of the plaintiffs. That attachment order has been wholly unsatisfied. We were told that the Superior Court found that on a preponderance of the evidence there were grounds shown for making the order, and that the prospects of a successful defence were not such as would prevent its making. That was on the 10th July, 1975.
On the 29th October, 1975 (I only mention this as a matter of history; for my part I think it is irrelevant to anything we have to decide) a warrant was issued by the District Attorney against Zissis on a charge of what is known under the local law as "grand theft". One can imagine what that means, though it has no English equivalent. Shortly before, the yacht had sailed from California. The yacht apparently was going to Greece, as was Mr. Zissis's intention. It would seem that he was not much relishing the prospect of having to comply with the writ of attachment. In circumstances which weneither know nor is it necessary to mention, the yacht sank on the 27th July, 1975, near Panama. Wigham's thereafter collected the moneys arising from that loss, but they themselves claimed to have a lien upon the proceeds not only for unpaid premiums but also for what appears to be a running account which they had with Zima and which, at the time the balance on that account was struck, showed a substantial Deutschmark deficit in favour of Wigham's and against Zima, Therefore (though this does not concern the result of these appeals) it by no means follows that, even if the plaintiffs are successful in these proceedings, they will get the whole of that money. It may be — I do not know — that Wigham's have a prior claim to some part of it.
The next event was that on the 18th March, 1976, proceedings were started in this country in reliance upon that attachment order. A little curiously, they were started, not by writ, but by originating summons. When one looks at the originating summons one finds that it does not (with all respect to whoever drafted it) begin to comply with Order 7, which regulates how originating summonses should be framed, because it nowhere states what the cause of action is upon which relief is sought. It will be found at pages 6 and 7 of the 1375 bundle. It simply states that the plaintiffs claim against the defendants an order that the defendants be restrained from disposing of their assets within this jurisdiction —- that is, the jurisdiction of our courts —- or removing them from it until three days after the final determination of the action then pending in the Superior Court of California. I should mention that the defendants to that action were Zissis, Zima and the three companies that I have mentioned, the two Californian and one Delaware company.
The very next day application was made to Mr. Justice Cusack, as judge in chambers, for leave (which was granted) to issue aconcurrent summons for service out of the jurisdiction in Greece on Zissis and Zina. The learned judge also granted an injunction in the terms of the originating summons restraining the various defendants from doing the acts of which complaint was sought to be made. Notice of that injunction was served on Wigham's, though they were not at that time parties to that action. Messrs. Holman Fenwick & Willan, who apparently acted for Zissis and Zima, had no instructions to accept service — understandably in those circumstances — and accordingly the plaintiffs were left, if they could properly do so, to effect service within the limits laid down by Order 11 of the...
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