| PRACTICE — Judgment, enforcement of — Corporate judgment debtor — Order for “officer of that body” to attend court — Judgment creditor’s application to examine persons abroad about foreign corporate judgment debtor’s means — Whether jurisdiction to grant order against officer abroad— Whether director of corporate director of judgment debtor “officer of that body” — CPR r 71.2 — Council Regulation (EC) No 44/2001, art 2
Masri v Consolidated Contractors International Co SAL and others (No 4) [2008] EWCA Civ 876; [2008] WLR (D) 261
CA – Sir Anthony Clarke MR, Longmore and Lawrence Collins LJJ: 28 July 2008
The court had jurisdiction under CPR r 71.2 to order the examination of a foreign director of a company which had submitted to the jurisdiction, defended a claim on the merits and failed to pay the judgment debt. A director of a corporate director of the judgment debtor was not “an officer of that body” within the meaning of the rule.
The Court of Appeal so held in a reserved judgment in an appeal by the judgment creditor, Munib Masri, against the order of Master Miller dated 20 December 2007, in which he set aside his without notice orders of 6 July 2008 against Toufic Said Khoury (“TK”) and Samer Said Khoury (“TK”) under CPR r 71, directing them as officers of two judgment debtors, Consolidated Contractors International Co SAL (“CCIC”) and Consolidated Contractors (Oil & Gas) Co SAL (“CCOG”), to attend court and provide information about the judgment debtors’ means. The court allowed the judgment creditor’s appeal in the case of TK, but dismissed that in the case of SK.
SIR ANTHONY CLARKE MR said that the judgment debtors were incorporated in Lebanon and CCIC was also domiciled in Greece. Both TK and SK were resident and domiciled in Greece. At the relevant time TK was a director of CCIC and SK was a director of a holding company which was a corporate director of CCOG. The purpose of an order under CPR r 71 was not to enforce the judgment against the addressees, but to assist the enforcement of a judgment debt. It was thus ancillary to the proceedings in which judgment was obtained. Mr Layton submitted that r 71.2 did not apply, or should not be applied, to the examination of the foreign officer of a foreign judgment debtor about assets abroad. His Lordship agreed with his submission that the presumption against extra-territoriality was the starting point and it might be that Lawrence Collins LJ somewhat understated its relevance in Masri v Consolidated Contractors Co SAL (No 2) [2008] EWCA Civ 303 at [31]; [2008] WLR(D) 97 . But as a matter of construction r 71.2 was not restricted to persons in this country. It was not a breach of international law or comity to order the examination of a foreign director of a company which had submitted to the jurisdiction, had defended the case on the merits and had failed to pay the judgment debt. In those circumstances “an officer of that body” in r 71.2 was wide enough to include TK. However, those words were not wide enough to include a director of a corporate director of the judgment debtor, such as SK. Mr Layton submitted that TK was entitled to be sued in Greece under art 2 of Council Regulation (EC) No 44/2001 (“Brussels I”). As to that, the reasoning in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) (No 2) [2000] 1 WLR 603 applied. A person in the position of TK had a substantial connection with the proceedings in much the same way as Mr Comninos did and similar principles applied to him. As in that case, the order made under r 71.2 was made in the context of substantive proceedings in which the court had and has jurisdiction. The application under r 71 was ancillary to the exercise by the English court of the substantive jurisdiction conferred upon it. There was nothing in Brussels I to limit the power of the court with substantive or plenary jurisdiction to grant such interim or ancillary measures as were provided for under national law. Accordingly, the court had jurisdiction to make the order against TK and justice required that the TK appeal be allowed.
LAWRENCE COLLINS LJ and LONGMORE LJ agreed. |
