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 Jul 2009
CPR 71 does not enable an order for examination to be made against a company officer who is outside the jurisdiction, and that CPR 6 provides no basis for service out of the jurisdiction of any such order, had it been 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 claimant obtained judgment against the defendant company, which was later affirmed by the Court of Appeal in July 2007 (see [2007] All ER (D) 151 (Jul)). 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 subsequently 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. 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.
Lord Mance:
CPR 71.2 provides, so far as is material: “(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 by considering the scope of the rule-making power, which was contained in s 1 of the Civil Procedure Act 1997 (CPA 1997).
At the heart of K’s submissions was a single theme, that the court lacked extra-territorial power—over K because he was abroad, and over the defendant’s assets because they were also abroad.
He rejected K’s submission. Parliament had to be taken to have understood and endorsed the manner in which the power had been understood and exercised over the years; and it permitted the extension of the jurisdiction of the English courts over persons abroad to cover new causes of action and situations.
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.
His lordship turned to the scope of the rule made. Even though the rule-making power was wide enough to enable rules to be made relating to the examination of an officer who was outside the jurisdiction, the presumption against extra-territoriality still applied when considering the scope of CPR 71.
The claimant submitted that, where the judgment debtor was a company, there was no reason to limit the concept of “an officer of that body” to an officer within the jurisdiction.
His lordship held that the two situations were not truly parallel. The judgment debtor was already subject to the court’s jurisdiction. In relation to him or her, the adjudicative and enforcement stages were part of a single whole.
But there was nothing in CPR 71 to enable the court to summon a third party witness who might have information about the personal judgment debtor’s assets. A corporate judgment debtor had a separate legal personality, and was not to be equated with its officers.
They might have information about its affairs, but they had not submitted to the jurisdiction. Some, but certainly not all, officers of a company might for some purposes be regarded as its alter ego. But CPR 71 was not limited to officers constituting a company’s alter ego, and there was no suggestion K was the defendant’s alter ego.
His lordship considered the authorities further and 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 Seagull Manufacturing Co Ltd (in liquidation), Re [1993] 2 All ER 980 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.
In any event, it would not have been possible to serve any such application under CPR 6. In Vitol SA v Capri Marine Ltd [2008] All ER (D) 437 (Feb), Mr Justice Tomlinson held that CPR 6.30(2) was concerned with documents requiring to be served on parties to the proceedings.
The Court of Appeal in the instant case disagreed and thought that CPR 71 was not “naturally limited” in that way. In his lordship’s opinion, Tomlinson J was right, including the way in which he distinguished The Ikarian Reefer (No 2) [1999] 2 All ER (Comm) 673).
Finally, the claimant submitted that, all else failing, the case could be brought within one of the heads of CPR 6.20, namely “(9) a claim…made to enforce any judgment or arbitral award”.
That submission also failed.
An application to enforce a judgment within the jurisdiction was distinct from an application to order examination of a witness who was abroad with a view to enforcing the judgment wherever assets might prove to exist.
The former did not trespass outside the jurisdiction of the English courts. The latter would, in a manner which was clearly not in mind in CPR 6.20(9).
The appeal would therefore be allowed.
Lord Scott, Lord Rodger, Lord Walker and Lord Brown delivered concurring opinions.
