Trafalgar Tours Ltd and Others v Henry and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE NOURSE,LORD JUSTICE BELDAM |
| Judgment Date | 03 May 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0503-6 |
| Date | 03 May 1990 |
| Docket Number | 90/0404 |
| Court | Court of Appeal (Civil Division) |
[1990] EWCA Civ J0503-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
SIR PETER PAIN
(sitting as a deputy High Court Judge)
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Nourse
and
Lord Justice Beldam
90/0404
MR. D. KERSHAW Q.C. and MR. C.FREEDMAN (instructed by Messrs Alexander Tatham & Co. Manchester) appeared on behalf of the Appellants (Plaintiffs).
MR. F.J. MULLER Q.C. and MR. CASWELL (instructed by Messrs Turner Kenneth Brown) appeared on behalf of the First Respondent (First Defendant).
MR. A. BOSWOOD Q.C. and MR. HODGE MALEK (instructed by Messrs Turner Kenneth Brown) appeared on behalf of the Second Respondent (Second Defendant)
The plaintiffs are a group of companies concerned in the travel and holiday industry. The defendants, Alan James Henry and Svend Eric Pedersen, to whom without disrespect I shall refer as "Henry" and "Pedersen", were also interested in the same industry in which they participated through a number of companies, including A.J. Henry (Travel) Limited, trading as Marina Holidays (hereinafter referred to as "Marina"), A. & S. Hotels Limited and Domingo Investments Limited and Waverley Coaches Limited. Marina was a company registered in Sheffield, England and traded as a tour operator from various travel shops. A. & S. Hotels Limited and Domingo Investments Limited were companies registered in Jersey, Channel Islands of which Henry and Pedersen were directors and together majority shareholders. The Jersey companies owned or leased hotels in the Channel Islands and the Isle of Wight and supplied accommodation for Marina. Waverley Coaches Limited was also registered in Jersey but Henry and Pedersen did not together own a majority shareholding. The company conducted a coach operation in Jersey.
The plaintiffs sought to bring an action against Henry and Pedersen which arose out of the manner in which they had conducted negotiations which took place towards the end of September and during the early part of October 1981 and which resulted in an agreement between the parties. By this agreement Henry and Pedersen were to procure the transfer of shares in the various companies already mentioned to the third plaintiff, while the second plaintiff promised to procure and obtain the issue to the defendants of redeemable preference shares in "Trafalgar Leisure Corporation" to the value of US$100,000. The parties had entered into negotiations for the first time early in 1981 but these negotiations had broken down before the end of March 1981 because Henry and Pedersen were asking a price for their shares which was more than the plaintiffs were prepared to pay.
The parties came together again in the autumn of 1981 in circumstances of considerable significance. Henry contacted Kenneth William Bates ("Bates") who was the chairman of the plaintiffs' group of companies and who had been concerned in the earlier negotiations. Having ascertained from Bates that the plaintiffs were still interested in acquiring "Marina" Henry described Marina as being in a serious "cash flow" position and said that the plaintiffs had "an hour and a half to save it". The plaintiffs acted immediately in conjunction with the Association of British Travel Agents ("ABTA") to resolve Marina's difficulties which presented a picture, only too familiar in the industry, of stranded holidaymakers unable to get home. The plaintiffs' case as disclosed from the endorsement upon the writ was for damages for fraudulent and/or negligent misstatements made in connection with the financial affairs of Marina, for misrepresentation at common law or pursuant to the Misrepresentation Act 1967, for breach of contract or warranty in connection with the agreement to purchase the shares and for damages for conspiracy to defraud. Henry was at all material times resident within the jurisdiction; but Pedersen was a resident of Jersey. Accordingly, the plaintiffs applied for leave to issue a writ under R.S.C. Order 6, rule 7, and to serve it on Pedersen in Jersey under R.S.C. Order 11, rule 1(1) (c) and (f).
The application was made ex parte to Mr. District Registrar Keogh and was supported by an affidavit of Dennis Albert Johnson Barley ("Barley"). Barley was the partner in the firm of solicitors instructed by the plaintiffs who had the conduct of the intended action. It is common ground that the writ (unamended) was before Mr. Registrar Keogh on the occasion of the application on 29th September 1987, but that no statement of claim or any supporting documents other that Barley's affidavit was put before the registrar.
The order made by Mr. District Registrar Keogh provided:
"The intended plaintiffs have leave to issue a writ of summons against the intended second defendant [Pedersen] and to serve a copy of the said writ duly sealed with the seal of the court office out of which it is issued and accompanied by a prescribed form of acknowledgment of service on him at Waverley Coaches Limited, Gloucester Street, St. Helier, Jersey, Channel Islands or elsewhere in Jersey".
The reference to serving a copy of the writ duly sealed may well be intended to authorise a concurrent writ for service under R.S.C. Order 6, rule 6. The plaintiffs duly issued one writ but did not obtain a copy of it duly sealed in accordance with the order nor did they obtain a concurrent writ in any other way under R.S.C. Order 6, rule 6. Before they served the writ they purported to amend it under the provisions of R.S.C. Order 20, rule 1(1). The amendments were for the most part not insubstantial ones. The plaintiffs then served the amended writ and statement of claim on Pedersen in Jersey on 13th November 1987; but they did not serve the writ, amended or otherwise, on Henry who was within the jurisdiction until January 1988. The writ when it was eventually served on Henry was the amended version.
By a summons dated 9th December 1987 Pedersen applied to the District Registrar at Manchester pursuant to R.S.C. Order 12, rule 8 for an order setting aside the order of Mr. District Registrar Keogh of 29th September 1987, the writ of summons issued pursuant thereto and its service upon Pedersen and all subsequent proceedings. This summons was heard by Mr. District Registrar Evans on 29th January 1988. In the meanwhile the amended writ having been served on Henry, service was accepted on his behalf on 22nd January. Pedersen's application was supported by an affidavit sworn by Richard Mark Harrison ("Harrison") a solicitor employed by Messrs Turner Kenneth Brown, solicitors instructed by Pedersen. Harrison deposed to Pedersen's birth in Denmark, to his residence in Jersey and to the absence of any assets of his within the jurisdiction of the court. Harrison further deposed to the commencement of proceedings by the plaintiffs against both Henry and Pedersen in the Jersey courts which had been served upon Pedersen on 18th November 1987. He exhibited to his affidavit a substantial document entitled "Order of Justice" which was the equivalent in the courts of Jersey to a statement of claim. This set out in considerable detail those matters which were also to be found in the statement of claim in the action in the United Kingdom courts which should have been, but was not, before the registrar.
Pedersen's application was also supported by an affidavit sworn by Richard John Michel, a barrister and advocate in Jersey who had been instructed by Pedersen. This affidavit set out the two main grounds for the application, namely (a) the existence of material non-disclosure and misrepresentation on the ex parte application to issue and serve the writ out of the jurisdiction and (b) the availability of the Royal Court of the Island of Jersey as an alternative forum conveniens. Mr. Michel also relied upon delay by the plaintiffs in taking any steps to obtain relief in respect of claims which arose as long previously as 1981. The affidavit asserted that all information necessary to commence proceedings was known to the plaintiffs at that time. Reference was made to a letter dated 26th January 1982 written by the plaintiffs' solicitors to the solicitors then acting for Pedersen to the following effect:-
"All the facts and circumstances which lead to and induce our clients to enter into the agreement dated the 6th October 1981 are the subject of an investigation which is almost complete. In consequence we understand we shall be instructed to pursue claims against your clients and others on various grounds. It is therefore appropriate and suffices at this sage to record that [no] admissions are made in relation to the contents of your letter dated the 14th December 1981.
The current situation in relation to A.J.Henry (Travel) Limited would seem to us to be academic in that it is now in receivership. The current situation in relation to the three Companies in Jersey is that these Companies have instituted proceedings in Jersey. It is therefore inappropriate for us to comment in relation to them".
The affidavits of Michel and Harrison were answered by an affidavit by Mark Robert Mattison ("Mattison"), a partner in the firm of solicitors acting for the plaintiffs. This was dated 28th January 1988—the day preceding the hearing before Mr. District Registrar Evans. In this affidavit Mattison contended that there had been a submission to the jurisdiction of the English court in the form of an application by Pedersen to transfer the proceedings from the Manchester District Registry to the Royal Courts of Justice in London. In support of...
To continue reading
Request your trial
-
AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC
...(unreported CA); Metall & Rohstoff AG v. Donaldson Lufkin and Jenrette Inc [1990] 1 QB 391 (CA); Trafalgar Tours Limited v. Henry [1990] 2 Lloyd's Rep 298 (CA), and BSQ Property Co Ltd v. Lotus Cars Ltd, 27th June 1990 (unreported CA). Having carefully considered the five most recent autho......
-
Lee Hsien Loong v Review Publishing Co Ltd and Another and Another Suit
...the cases on this point cited by counsel for the defendants, the English Court of Appeal’s decision in Trafalgar Tours Ltd v Henry [1990] 2 Lloyd’s Rep 298, where Purchas LJ (with whom Nourse and Beldam LJJ concurred) said (at p 308) that ‘there is a heavy duty upon those applying ex parte ......
-
Punjab National Bank (International) Ltd v Ravi Srinivasan
...94 There is no authority that is directly on point. The Zaiwalla Defendants rely on the pre-CPR decision of the Court of Appeal in Trafalgar Tours Ltd v Henry [1990] 2 Lloyds Rep 298 in support of the proposition that an order for permission to serve out only applies to the claim in the fo......
- Gamlestaden Plc v Casa de Suecia S.A.