Surzur Overseas Ltd v Koros

JurisdictionEngland & Wales
JudgeLord Justice Waller,Lord Justice Aldous,Lord Justice Hirst
Judgment Date25 February 1999
Judgment citation (vLex)[1999] EWCA Civ J0225-10
Docket NumberQBCMI 98/0442/3
CourtCourt of Appeal (Civil Division)
Date25 February 1999
Surzur Overseas Ltd
Koros and Others

[1999] EWCA Civ J0225-10


Lord Justice Hirst

Lord Justice Aldous

Lord Justice Waller

QBCMI 98/0442/3





(Mr. Justice Longmore)

Royal Courts of Justice

MR. S. KENTRIDGE Q.C., MR. A. TEMPLE Q.C. and MR. S. KENNY (instructed by Messrs Clyde & Co., London, EC3) appeared on behalf of the Appellant/Plaintiff.

MR. A. SCHAFF (instructed by Messrs Bentleys, Stokes & Lowless, London, E1) appeared on behalf of the Thirteenth and Fourteenth Respondents/Defendants.

MR. J. LOCKEY (instructed by Messrs Waterson Hicks, London, EC3) appeared on behalf of the Second Respondent/Second Defendant.

Lord Justice Waller

This is an appeal from a judgment of Longmore J given on 20 February 1998. He had before him applications by the Second (ET), Thirteenth (CE) and Fourteenth (EE) defendants to set aside service of proceedings against them. The applications raise issues as to whether the court had jurisdiction over the defendants. ET, CE and EE are individuals domiciled in Greece who would thus therefore prima facie have to be sued in Greece under Article 2 of the Brussels Convention as enacted by the Civil Jurisdiction and Judgments Act 1982 (as amended). The plaintiffs have sought to establish jurisdiction under Article 5(3) and Article 6(1). Originally the only issues that were to be brought before the court involved the applicability of Articles 5(3) and 6(1), but, shortly before the hearing of the applications, these defendants raised what can be called a threshold point.


It is undisputed that in order to justify invoking either Article 5(3) or Article 6(1) the plaintiff's case has to pass a sufficient threshold of 'arguability'. It is common ground that the relevant test is that set out in Tesam Distribution Ltd v Schuh Mode Team GmbH [1990] 1.L.Pr.149, namely that the plaintiff must satisfy the court that it has a 'good arguable case' in the sense that

"there is a serious question which calls for a trial for its proper determination."


The judge decided that on a proper analysis of the plaintiff's claim that claim was one of conspiracy to use unlawful means, those means being the procuring and deploying in court of false evidence, in consequence of which the court was wrongly deceived into varying a Mareva injunction resulting in loss and damage suffered by the plaintiff. The judge further held that assuming the facts and matters in the original points of claim were true they disclosed no serious issue to be tried as against the defendants on the basis that as a matter of law the defendants were immune from suit on the basis of what is referred to as the 'witness immunity' rule.


Accordingly the judge did not decide such other points as might have arisen on Article 5(3) and Article 6(1), and it is common ground that if the appeal were allowed on the arguability point the matter would have to return to the Commercial Court to have the further matters determined.


Before us the plaintiff has sought leave to amend the points of claim broadening the allegations that have been previously made. Mr Schaff, on behalf of CE and EE, and Mr Lockey, on behalf of ET, have not ultimately resisted with any degree of force this court approaching the question of 'witness immunity' by reference to the amended points of claim. In not seriously resisting leave to amend the points of claim, Mr Schaff did make certain points. First, he submitted that the plaintiff had now had plenty of opportunity to consider the position and that thus no more latitude should be granted. There is no difficulty with that since the plaintiff has not sought any further latitude. He then submitted that it was important to look critically at allegations now made in the amended points of claim in so far as they were inconsistent with the thrust of the earlier points of claim. Mr Kentridge QC for the plaintiff did not demur from that being a proper approach. Mr Schaff finally submitted that there might arise a point in relation to the court first seised and Article 22 of the Convention. He submitted that if the original points of claim were held not to contain a 'seriously arguable cause of action' then the appropriate course for the court to take might well be to set aside the original service and simply allow the proceedings as amended to be re-served or re-commenced. In that event he submitted that there might well arise the question as to whether the English court would then stay the re-served or fresh proceedings having regard to the fact that the defendants had commenced libel proceedings in Greece since the decision before Longmore J. It was his submission that this question of which court was first seised should in some way be left open for the Commercial Court to decide.


If there had been a likelihood that this was a case in which the court should insist on re-service of proceedings because some serious argument might then arise as to the court first seised, it might have been appropriate to find some way of preserving that point for Mr Schaff to argue. Since it does not seem to me to be a case where the court would insist on re-service or re-commencement and, since quite properly this aspect was not pursued with any force by Mr Schaff, the appropriate course is simply to give leave to amend the points of claim and leave the matter there.


What then are the issues on the appeal?


The broad issue as already stated is whether, on the amended points of claim, the plaintiffs can demonstrate a serious issue to be tried. The basis on which Mr Schaff and Mr Lockey, on behalf of their clients, submit that there is no serious issue to be tried is that on the allegations made in the amended points of claim either the witness immunity will defeat the points of claim in toto, or the witness immunity rule will lead to such substantial portions of the points of claim being excised that the remainder will not produce any serious question for the trial.


Mr Schaff is correct in his skeleton argument in stating that debate of the key issue involves enquiries into the following matters:—

(1). An analysis of the plaintiff's cause of action;

(2). An analysis of the "witness immunity" rule;

(3). An analysis of the extent to which the plaintiff's cause of action infringes the witness immunity rule; and

(4). Possibly consideration of whether the point of law should be determined on the jurisdiction summons at all.


Analysis of the plaintiff's cause of action


It is right to record that the allegations made against the defendants by the plaintiffs are very serious indeed. The allegations on any view involve alleging the creation of false documents, the making of fraudulent and misleading statements and the deploying in court of false evidence. Those allegations are strenuously denied by the defendants and if required to do so the defendants will defend such allegations at trial whether in England or in Greece. But, for the purposes of this appeal, the court has to assume that the allegations made in the amended points of claim will be made good. The question is whether, even if those allegations could be made good, there is a serious issue to be tried.


The thrust of the amended points of claim, Mr Kentridge accepts, is different from the thrust of the points of claim which Longmore J had to consider. The thrust is altered by amendments to paragraph 9 and by the insertion of new paragraphs 68A and B of the amended points of claim. But, it should be noted that those amendments seek, in effect, to draw inferences from facts which have been pleaded throughout. In the original points of claim, the facts, to which I will turn in a moment, were pleaded and the inference alleged to be drawn was of a conspiracy in which "from January 1997 onwards the defendants (or any two or more of them) wrongfully dishonestly and with intent to cheat defraud and cause injury to Surzur agreed together to do so and to procure the acts set out below by unlawful means (particularly the procuring and deployment in court of false evidence) so as to permit the sale of the three vessels." (See unamended paragraph 9).


The amendments now put the conspiracy in the following way:- "From January 1997 late 1996 onwards the defendants (or any two or more of them, as hereinafter set out) wrongfully dishonestly and with intent to cheat defraud and cause injury to Surzur agreed together to do so and to procure the acts set out below by unlawful means including -(particularly:—

(i) concealing assets of Mr Koros with intent to assist him in deceiving and defrauding his creditors (including aiding and abetting him in the concealment of those assets from Surzur and from the court after he had been ordered by it to make disclosure)

(ii) making fraudulent and misleading statements intending them to be relied and acted upon by Surzur (among others)

(iii) forging documents intending that Surzur (among others) should accept them as genuine

(iv) giving fraudulent and misleading instructions to solicitors intending the solicitors to act upon them:

(a) by making false and misleading statements to Surzur such that Surzur would act and rely upon them and

(b) by making false and misleading statements to others including (if necessary) to the court, thereby perverting the course of justice

(v) making unfounded dishonest and malicious applications to the court such applications constituting abuses of the process of the court and contempts of court and

(vi) the procuring and deployment in and out of court of false evidence)


so as to deceive Surzur into believing that...

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    • Singapore Academy of Law Journal No. 2009, December 2009
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