Re Little Olympian Eachways Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 18 July 1994 |
| Date | 18 July 1994 |
| Court | Chancery Division |
Chancery Division
Before Mr Justice Lindsay
Company - residence of corporation - test
The test for determining whether a plaintiff corporation was ordinarily resident out of the jurisdiction for the purposes of Order 23, rule 1(1)(a) of the Rules of the Supreme Court required the court to locate its central management and control.
Mr Justice Lindsay so held in a reserved judgment in the Chancery Division on the summons of (i) Little Olympian Eachways Ltd, (ii) Mr George Michalias, (iii) Mr Christoforos Christoforou, (iv) Mr Kratinos Pyliotis, (v) Olympic Holidays Ltd, and (vi) Olympic Vacations Ltd, applicants for security in respect of costs against Supreme Travels Ltd, a petitioner for relief under section 459 of the Companies Act 1985 against, inter alios, the applicants.
Order 23, rule 1 of the Rules of the Supreme Court provides:
"(1) Where, on the application of a defendant to an action or other proceeding in the High Court, it appears to the court (a) that the plaintiff is ordinarily resident out of the jurisdiction … then … it may order the plaintiff to give such security for the defendant's costs of the action or other proceeding as it thinks just."
Mr William Stubbs, QC, for the first to fourth applicants; Mr Alastair Walton for the fifth and sixth applicants; Mr Robin Potts, QC and Mr David Mabb for the petitioner.
MR JUSTICE LINDSAY said that the test for ordinary residence was long established in tax matters and, with regard to individuals, had been adopted without awkwardness or consciousness of injustice for other more general purposes: see R v Barnet LBC, Ex parte ShahELR ((1983) 2 AC 309, 341C-342E). Nor was "ordinary residence" a term of art (see p340G). In all, that suggested that one need not be especially shy about adopting the conclusion of tax cases to cases outside tax.
By the time Order 23 had taken effect in 1964 there had been given to the expression "ordinarily resident" in relation to a trading corporation a meaning that required one to look for where the company's central management and control actually abided: see De Beers Consolidated Mines Ltd v HoweELR ((1906) AC 455, 458) per Lord Loreburn, Lord Chancellor and Unit Construction Co Ltd v BullockELR ((1960) AC 351, 363, 365).
It seemed reasonable therefore to his Lordship to import the "central management and control" test into Order 23, rule 1(1)(a) as the test intended by the Rule...
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