Masri v Consolidated Contractors International Company SAL and others [2009] UKHL 43, [2009] All ER (D) 340 (Jul)
House of Lords, Lord Scott, Lord Rodger, Lord Walker, Lord Brown and Lord Mance, 30 July 2009
CPR 71 does not enable an order for examination to be made against a company officer who is outside the jurisdiction, and CPR 6 provides no basis for service out of the jurisdiction of any such order, even if it was possible to make one.
Laurence Rabinowitz QC, Simon Salzedo and Colin West (instructed by Simmons & Simmons) for the claimant.
Alexander Layton QC and Thomas Raphael (instructed by Olswang) for K.
The proceedings concerned an agreement which the claimant sought to enforce against the defendant company, which was based overseas. The claimant obtained judgment in his favour, which was affirmed by the Court of Appeal in July 2007. Also, in July 2007, the claimant obtained without notice an order for the examination of K, an officer of the defendant, in respect of the defendant’s means, under CPR 71.
Steps were taken to serve K personally in Greece. In December 2007, on K’s application the order was set aside on the ground of lack of jurisdiction, under both European Community and domestic law. The Court of Appeal allowed the claimant’s appeal, and remitted the case for further consideration of the issue relating to the validity of the service effected in Greece. K appealed to the House of Lords. The issue was whether CPR 71 provided an order for examination to be made against a company officer outside the jurisdiction, and if so whether CPR Pt 6 provided a basis for serving such an order out of the jurisdiction.
Lord Mance:
The relevant part of CPR 71 was: “(1) A judgment creditor may apply for an order requiring – (a) a judgment debtor; or (b) if a judgment debtor is a company or other corporation, an officer of that body, to attend court to provide information about – (i) the judgment debtor’s means; or (ii) any other matter about which information is needed to enforce a judgment or order...”
His lordship began with the scope of the rule-making power.
The statutory constraint contained in s 36 of the Supreme Court Act 1981 precluded the possibility of a rule requiring an ordinary witness outside the jurisdiction to attend for examination within the jurisdiction. But the statutory rule-making power was wide enough, in principle, to permit the rule-making authority to enact rules relating to the examination of an officer abroad of a company against which a judgment had been given within the jurisdiction.
Further, if and so far as it would be legitimate to make a rule for the examination of such an officer who is abroad, there was no basis for limiting the scope of the power to authorise such examination to assets within the jurisdiction.
Scope
His lordship turned to the scope of the rule actually made, namely CPR 71. He accepted that even though the rule-making power was wide enough to enable rules to be made relating to the examination of an officer outside the jurisdiction, the presumption against extra-territoriality still applied when considering the scope of CPR 71.
He considered, inter alia, Re Tucker (RC) (A Bankrupt), ex parte Tucker [1988] 1 All ER 603, [1988] 2 WLR 748 and Re Seagull Manufacturing Co Ltd (in liq) [1993] 2 All ER 980, [1993] 2 WLR 872. He held that CPR 71 was not conceived with officers abroad in mind, and, although it contained no express exclusion in respect of them, there were lacking critical considerations which enabled the Court of Appeal in Re Seagull to hold that the presumption of territoriality was displaced and that the relevant statutory provision there, on its true construction and having regard to the legislative grasp or intendment, embraced a foreign officer.
Although CPR 71 was limited to officers of the judgment debtor company, the position of such officers was closer to that of ordinary witnesses than to that of officers of a company being compulsorily wound up by the court. His lordship concluded that CPR 71 did not contemplate an application and order in relation to an officer outside the jurisdiction.
That conclusion was reinforced by a consideration of the position relating to service. The claimant relied, inter alia, on CPR 6.30(2). The primary purpose of that provision was to require leave for service out of the jurisdiction on a defendant to proceedings of documents requiring to be served during such proceedings on such defendant, where the original claim form required such leave.
By inference, it indicated that if the claim form did not require leave for service out of the jurisdiction, then ancillary documents requiring to be served on the defendant during the proceedings did not require such leave. It did not have the wider effect of enabling any non-party on whom it might be appropriate to serve any document during the course of proceedings to be served, with leave if the proceedings against the original defendant required leave for service out.
Moreover, as correctly stated by Vitol SA v Capri Marine Ltd [2008] All ER (D) 437 (Feb), CPR 6.30(2) was concerned with documents requiring to be served on parties to the proceedings.
The appeal would therefore be allowed.
Lord Scott, Lord Rodger, Lord Walker and Lord Brown delivered concurring opinions.
