INGHILTERRA
17. Introduzione. Motivazione francese e motivazione
inglese a confronto.
A differenza della sentenza francese, quella inglese
contiene spesso un ragionamento lungo e completo. Essa non consiste semplicemente nella presentazione di conclusioni di
diritto, ma comprende anche un
resoconto integrale dell’iter logico attraverso il quale il giudice
perviene alle sue conclusioni. Sul punto la dottrina d’Oltre Manica
sottolinea come lo stile
«secco» e sillogistico della motivazione francese, se s’attaglia alla soluzione
di casi semplici, mal s’adatta alla soluzione dei casi complessi, che
costituiscono la quasi totalità del contenzioso: «Come sanno tutti i
giuristi, i veri problemi cominciano, o quando il diritto non è chiaro, o
quando i fatti non sono chiari, o quando l’applicazione del diritto ai fatti
solleva particolari problemi di misura. In queste circostanze le persone di
buon senso (ed i giudici di buon senso) possono trovarsi in disaccordo sul modo
in cui il caso vada deciso e diventa importante capire almeno qualcosa del
processo di ragionamento, attraverso cui i giudici pervengono alle loro
conclusioni» [1].
Ma ciò che forse colpisce maggiormente il giurista di
formazione continentale è lo stile
nel quale la motivazione è espressa. Se vi è qualcosa in comune da questa parte della Manica nel modo di
motivare le sentenze (e il discorso, una volta tanto, vale sia per la Francia,
che per la Germania, che per l’Italia) è uno stile «burocratico», in cui l’astrazione concettuale
s’accompagna al tecnicismo giuridico per marcare – nell’ambito di un
argomentare esclusivamente rivolto agli «addetti ai lavori» – una scarsa considerazione
(che talora si volge in sovrano disprezzo) per i fatti di causa. Lo stile
inglese, al contrario, sembra assai più colloquiale ed informale. La principale preoccupazione
del giudice d’Oltre Manica sembra invero quella di convincere le parti (le
parti personalmente, verrebbe da dire, e non tanto i loro difensori) della
bontà del proprio punto di vista. Sul punto si potrà fare rinvio alle
considerazioni di Taruffo,
che pone in luce questa chiara diversità di prospettiva [2].
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Non solo: non vi è dubbio che il linguaggio impiegato da un
giudice di common law favorisce la
comprensione della ratio decidendi anche
da parte di chi si collochi in ambienti culturali assai diversi. Osserva, ad
esempio, Marinari, che «Quando parla della motivazione di una sentenza e dei
suoi requisiti (…) un giurista inglese parla un linguaggio certamente
comprensibile anche ad un giurista italiano o francese, a prescindere dal grado
di conoscenza specifica che ciascuno di loro abbia dei rispettivi ordinamenti» [3]. Questa osservazione sembra valere, assai sovente,
con riguardo a molte delle materie trattate dalle decisioni d’oltre Manica o
d’oltre Oceano.
La progressiva caduta
delle barriere linguistiche e l’ausilio dei moderni strumenti dell’informatica
favoriscono la comparazione tra gli ordinamenti e inducono sempre più sovente i
giuristi delle due rive della
Manica ad interrogarsi e confrontarsi sulle profonde differenze dei
propri sistemi. Così l’inaugurazione, alcuni anni fa, di una banca dati
elettronica, in lingua inglese, di materiale giurisprudenziale francese (e,
segnatamente, di una serie di pronunce della Cour de cassation) a cura dell’Institute
of Global Law dell’University College di Londra [4] ha fornito l’occasione per alcune stimolanti
riflessioni sul tema [5].
Come rimarcato, in quella sede, dall’allora Lord Chancellor del Regno Unito, «The jurisprudence of the French
courts presents a challenging experience for those who have grown up with the
idiom of the common law. In particular, the common lawyer looking into a French
report will need time to familiarise himself with the context of the judgment,
as the plurality of jurisdictions between the Conseil constitutionnel, Cour
de cassation and Conseil d’État and the profound institutional
differences between these jurisdictions is a feature which is largely unknown
to the common law» [6].
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«Another
striking feature has to be the
style of French judicial reasoning. The language of a common law judge is pragmatic,
reflecting a judicial activity of assessing historical rulings to find the
principles which will decide the case. In comparison, the
decision-making process in A
well-known illustration of this process is the law of delict. Both Britain and France have
highly developed principles governing liability for negligent acts, but while
the basic norms of the French law derive from Articles 1382 to 1386 of the Code
Civil, the foundation of English law is Lord Atkin’s famous statement in
the 1932 case of Donoghue v Stevenson that: ‘You
must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour.’ In the
circumstances it is hardly surprising to find a difference between the styles
of reasoning of the courts which are required to apply the principles of
liability for harm. When deciding a novel case in negligence the British
House of Lords must necessarily begin with previous authority – based on Donoghue
v Stevenson – to see whether liability has ever been imposed in a similar
situation before. The judge must then embark upon a journey of reasoning
which draws out principles from the earlier cases imposing liability and
decides whether they are relevant to the present facts. As Lord Hoffmann
recently said: ‘The
[House of Lords] approaches the question … starting with situations in which
a duty has been held to exist and then asking whether there are
considerations of analogy, policy, fairness and justice for extending it to cover
a new situation… The trend of authorities has been to discourage the
assumption that anyone who suffers loss is prima facie entitled to
compensation from a person … whose act or omission can be said to have caused
it. The default position is that he is not.’ The role of the Cour de cassation is very
different. Its judges are not required to reason from past authority but
rather from the terms of the Code Civil itself, and this requires a
very different analytical process. In the celebrated arrêt Jand’heur the
Cour de cassation formulated a remarkable branch of jurisprudence: the
liability for ‘les actes des choses’ based on Article 1384 of the Code
Civil. The judgment does not in any way reflect the historical approach
of the British courts, but starts from an analytical interpretation of
Article 1384 as the foundation for liability: ‘Attendu que la
présomption de responsabilité établie par cet article à l’encontre de celui
qui a sous sa garde la chose inanimée qui a causé un dommage à autrui ne peut
être détruite que par la preuve d’un cas fortuit ou de force majeure ou d’une
cause étrangère qui ne lui soit pas imputable … … attendu que la loi, pour
l’application de la présomption qu’elle édicte, ne distingue pas suivant que
la chose qui a causé le dommage était ou non actionnée par la main de l’homme
; qu’il n’est pas nécessaire qu’elle ait un vice inhérent à sa nature et
susceptible de causer le dommage, l’article 1384 rattachant la responsabilité
à la garde de la chose, non à la chose elle-même… Par ces motifs,
CASSE.’ This short and analytical
style of judicial reasoning, so very different from the approach of the
common law, can often complicate the process of comparison between legal
systems. However, the problem is not an insurmountable one (…). So now that
British and French lawyers have greater facilities than ever before with
which to investigate their mutual jurisprudence, there is surely a great deal
which lawyers on both sides of the Channel can learn from their common
experience» [7]. |
Riflettendo sulle osservazioni sopra riportate, si
sarebbe tentati di dire che,
proprio per via del noto principio dello stare
decisis, nei sistemi di common law
l’osservanza del precedente viene a svolgere un ruolo lato sensu simile a quello che nell’Europa continentale è legato
all’applicazione delle regole codicistiche [8].
La più autorevole dottrina ha peraltro rimarcato che i
giudici inglesi generalmente non spingono il loro ragionamento al di là della
frontiera che separa il diritto scritto dal common law. Essi non deducono principi
generali dalle leggi per poi applicarli a situazioni non espressamente previste
dalla legge stessa e, di solito, non utilizzano le leggi in maniera analogica, cosicché ne
possano derivare principi di common law. Essi non usano neanche le leggi
come fonte di valori e giudizi attuali sull’equità e la giustizia quando sono
essi stessi costretti a sviluppare il common law. Ne consegue che il
metodo di ragionamento nella sentenza di un giudice inglese cambia in modo
drammatico quando la corte passa dal problema di common law a quello del
diritto scritto [9].
In realtà, conoscendo i poteri che gli statutes conferiscono ai giudici, sia
sotto il profilo sostanziale [10], che sotto quello processuale [11], si dovrebbe forse dire che la stessa necessità di un procedimento analogico
viene ad essere in limine esclusa, in
considerazione del costante richiamo della legge a clausole generali quali
«buona fede», «giustizia», «ragionevolezza», ecc.
18.
Le motivazioni e il loro stile: il retaggio della tradizione.
Se è vero che, in linea generale, la sentenza inglese
fornisce un’impressione d’un meno
accentuato formalismo, è altrettanto vero che lo stile varia spesso a seconda della materia.
Vi sono certe aree del diritto, ad esempio, nelle quali la tradizione storica
ed altri fattori non sempre facili da individuare hanno indotto i tribunali ad
un atteggiamento molto più conservatore. In materia contrattuale, ad esempio,
il ragionamento dei giudici tende ad essere più conservatore, più tecnico e più
rigido che non, tanto per dire, nel diritto degli atti illeciti. In effetti, il
diritto degli illeciti si colloca all’estremo opposto sotto questo punto di
vista. Liberati, grazie ad una serie di autorevoli decisioni della House of Lords, dalle antiche
restrizioni in merito alla disponibilità delle azioni per atto illecito, i
giudici del nostro tempo hanno avanzato le frontiere del diritto in maniera
eccezionale, facendo in particolare leva su concetti altamente manipolabili come
quello di «prevedibilità» [12].
Altro fattore rilevante, in tema di
motivazione delle decisioni, è costituito dal livello di ufficio giudiziario considerato.
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«The second factor
influencing the style of judicial reasoning concerns the level of the court
in question. Judges in higher appellate courts feel more free to reason in a
broader, policy oriented, and less doctrinal or technical way than judges in
lower courts. This is, no doubt, partly the result of the doctrine of
precedent as it operates in |
Ancora, non bisogna dimenticare il già ricordato, immenso, potere che ai giudici
di common law è concesso, anche
allorquando viene in gioco un particolare statute,
attesa la propensione del Legislatore a rinviare a concetti generali quali
«buona fede», «giustizia», «ragionevolezza», ecc. Tra i tanti esempi
potremmo citare la
possibilità, espressamente attribuita al giudice, di modificare un contratto
tra coniugi separati o divorziati, fondandosi su ciò che «può apparire (...)
giusto avuto riguardo a tutte le circostanze» [14]. Potere, questo, che non sembra avere corrispondenti nei sistemi continentali [15], sebbene anche da noi le c.d. «clausole generali» conferiscano
in diversi settori al giudice un ampio margine di discrezionalità, destinato
però a sua volta ad arrestarsi (quanto
meno di regola) di fronte a principi con esso collidenti, come ad esempio
quello della libertà contrattuale [16].
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«My third comment
about the trend of modern developments in Enghsh law (…) concerns the extent
to which modern laws are openly conferring discretions, particularly in
private law, and particularly in the law of obligations. It is now almost the
usual procedure in many new statutes, to lay down rules for the ordinary
cases, and then to add that in exceptional cases the judges may depart from
the rules. Sometimes the statute adds some guidance on what is to be
considered an exceptional case, and how it may be dealt with, but in other
cases, the statute may confer an exceptionally wide discretion to do what the
court thinks right or just (…). For example, one important new statutory discretion (…) is S. 33 of
the Limitation Act 1980 which permits the court to override the usual
limitation period of three years in actions for damages for personal injuries
wherever it seems equitable to do so. This new example illustrates
particularly well the point I wish to make, which is that English judgments
nowadays frequently deal at considerable length with these discretions, and
contain lengthy explanations of why a discretion is exercised in one
particular fashion, and not another» [17]. |
19. Obbligo
di motivazione e procedimento attraverso il quale si perviene alla sentenza.
Si è già anticipato che nel sistema britannico e, più
in generale, negli ordinamenti di common
law, bisogna distinguere a seconda che si tratti di decisione di prima
istanza (trial court), o di appello,
o di ulteriore istanza. Per ciò che attiene ai giudizi di prima istanza, nel
caso di presenza della giuria (assai raro in materia civile in Gran Bretagna,
più frequente negli Stati Uniti), quest’ultima si limita, come noto, ad
emettere un verdict, non motivato,
che sarà seguito dal judgment, in cui
il giudice enuncia concisamente i motivi e il dispositivo della decisione. La
decisione è di solito resa oralmente e redatta per iscritto, sotto il controllo
del giudice (o del clerk of court) da
un avvocato. Nel caso di trial in
assenza di giuria il giudice (di solito unico) può motivare sul fatto e sul
diritto, ma non ne ha l’obbligo.
Per ciò che attiene alle corti di seconda o successiva
istanza la procedura è un po’ più complessa [18].
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La caratteristica fondamentale è dunque costituita
– per lo meno fino all’entrata in vigore per la Gran Bretagna della Convenzione
Europea dei diritti dell’uomo ed all’emanazione di una decisione della Court of
Appeal, di cui verrà detto tra poco – dall’assenza di norme che espressamente
impongano la motivazione, sebbene la prassi inglese (in ciò marcando una
differenza abbastanza rilevante rispetto a quella americana) sia da molto tempo
orientata nel senso che, in pratica, una motivazione viene effettivamente
sempre emessa [19].
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Si sarebbe quasi tentati (se l’esempio
degli Stati Uniti non vi ostasse: ma l’argomento richiederebbe ben altro
approfondimento) di
istituire un ardito parallelo tra l’obbligo di motivazione della sentenza e
l’esistenza di una costituzione scritta: come quest’ultima, anche l’obbligo di
motivare le decisioni di giustizia sembra il frutto di ideologie e di processi
rivoluzionari (che la Gran Bretagna non ha conosciuto); peraltro, nella
stessa maniera in cui il «diritto
vivente» ha provveduto all’elaborazione di una costituzione non scritta,
così la prassi ha
introdotto una regola non scritta nella legge, ma di fatto osservata, sulla
motivazione della sentenza.
Il carattere non obbligatorio
della motivazione sembra implicitamente confermato, al di là della Manica,
anche dalla Part 40 delle Civil Procedure Rules [20], e in particolare dalla Rule
40.3, che nell’individuare gli elementi essenziali di un judgment, non
menziona in alcun modo la motivazione, mentre, per ciò che attiene alla
redazione della decisione, si occupa esclusivamente di chi vi debba procedere,
nel modo seguente.
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40.3 |
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Sul tema non poteva
peraltro non influire l’intervento normativo che, nel 1998 (Human Rights Act 1998) [21], ha determinato il recepimento della Convenzione Europea dei
Diritti dell’Uomo nell’ordinamento britannico, rendendone possibile la diretta
applicazione da parte dei giudici inglesi. Esprimendosi sul tema, la Court of Appeal, Civil Division, nella sua decisione in data 30 aprile 2002 [22], ha dichiarato, innanzi tutto – riferendosi a due precedenti pronunzie,
rispettivamente, del 1982 e del 1994 – che l’obbligo di motivazione «è funzione del giusto processo, e, pertanto, della giustizia. Il
suo fondamento presenta due aspetti principali. Il primo è che il principio di
correttezza richiede certamente che le parti, specialmente quella soccombente,
non dovrebbero essere lasciate nel dubbio sulle ragioni per le quali hanno
vinto o perso (…). Il secondo è che la necessità di motivare induce alla
concentrazione. Quando questo requisito è pienamente rispettato è molto più
probabile che la decisione che ne deriva sia realmente fondata sulle prove
anziché no».
La medesima pronunzia ha poi riconosciuto che
«La giurisprudenza di Strasburgo è chiara nell’affermare che il diritto ad un giusto processo garantito
dall’art. 6 della Convenzione Europea per la Protezione dei Diritti Umani e
delle Libertà Fondamentali del 1950 (così come stabilito all’art. 1 della legge
del 1998), che comprende il requisito che la pronuncia della decisione deve essere pubblica, comporta, quale normale
conseguenza, che la decisione deve essere una decisione motivata. Per soddisfare tale requisito, le
Magistrates’Courts ora motivano le
loro decisioni».
20. Differenze
formali e contenutistiche rispetto alle motivazioni «continentali».
Queste modalità di pervenire alla decisione nei sistemi di common law si riflettono inevitabilmente sulla struttura e
sull’aspetto della motivazione della sentenza, così marcando profonde
differenze rispetto a quanto previsto nel nostro ordinamento e a ciò che
avviene nella nostra prassi [23].
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Le evidenziate
diversità tra i due sistemi a raffronto producono inevitabili riflessi anche
sul modo in cui la motivazione viene espressa, trasposta per iscritto e quindi
letta e interpretata. La dottrina
italiana non ha mancato al riguardo di criticare la già rimarcata maggiore tendenza all’astrazione
e al dottrinarismo della motivazione di casa nostra, di contro ad un più
elevato grado di aderenza ai fatti di causa da parte del giudice inglese [24].
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In relazione a quanto sopra va ricordato, ancora una volta,
che, sul piano più propriamente stilistico, la motivazione della decisione di common law si caratterizza per un’impronta decisamente più
discorsiva nell’argomentare del giudice, retaggio evidente del carattere
storicamente orale della motivazione: impronta, questa, spesso
conservata, curiosamente, anche laddove la decisione sia resa per iscritto dal
giudice.
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«Judgments in the
common law system, are written, especially today, in a somewhat discursive style. Reasoning is set out fully, indeed
(…) in considerable detail; thus there is scope for individual literary style, and some of our
greatest judges have been masters of the English language. When one
reads the judgments of one of these masters there is no mistaking the
idiosyncracies of the individual judicial style. Who but Lord Denning, for
instance, could have commenced his account of the tragic accident giving rise
to the proceedings in the Court of Appeal with the words, «It happened on |
Da ciò consegue un più elevato grado di facilità di estrazione della ratio decidendi dal dictum del giudice d’Oltre Manica, laddove in Italia il procedere
del giudice per astrazioni concettuali può finire per mascherare quelle che
sono le vere ragioni di una decisione [26].
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21.
Tecnica delle citazioni e raccolte di giurisprudenza.
Un ulteriore effetto di quanto sopra indicato è
riscontrabile in relazione al
modo in cui i precedenti giurisprudenziali vengono citati nei due sistemi,
consistente, rispettivamente, in:
·
una (sovente
acritica) riproduzione
del mero principio di diritto, da noi;
·
una ripresentazione (integrale
o comunque assai esaustiva) degli elementi di fatto e di diritto che
caratterizzavano il precedente, nonché un’analisi delle sue somiglianze e delle
differenze rispetto al caso in esame, nella motivazione di common law [27].
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Non vi è dubbio che la maniera con cui
vengono citati i precedenti influisce,
in un modo o nell’altro, non solo sulla forma, ma anche sulla sostanza della decisione [28].
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Per quanto attiene, poi, alla tecnica delle citazioni,
potrà aggiungersi che, di recente, alcune Practice
Directions inglesi [29] sono venute a regolamentare la maniera di suddividere
in paragrafi le motivazioni, nonchè la tecnica di citazione dei precedenti
della Court of Appeal [30], così come, più in generale, delle altre authorities [31].
Un’ulteriore ricaduta della distinzione sopra
effettuata riguarda le
differenze tra i reports e le
raccolte di giurisprudenza italiane [32], sebbene debba essere aggiunto, per rigore di completezza
e ad onor del vero, che la situazione, nel nostro Paese, sembra essere mutata
rispetto a come si presentava all’epoca in cui Gorla svolgeva le considerazioni
qui richiamate. Lo strumento del case book ha infatti
trovato ampia diffusione in Italia e, in molte delle sue ricchissime e
variegate applicazioni, le decisioni vengono non solo riportate per intero, ma
interpretate per quanto esse hanno affermato in relazione ai singoli casi
concreti dalle stesse risolti. A ciò s’aggiunga che i moderni strumenti dell’informatica, con
la creazione di banche dati giurisprudenziali (sia online che offline)
contenenti non solo le massime, bensì anche le motivazioni per esteso,
consentono all’interprete mediamente accorto di effettuare ricerche ed analisi
assai più approfondite rispetto ad un tempo [33].
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22.
Riflessi della dissenting opinion.
Un accenno potrà farsi ancora al fenomeno della dissenting opinion, che ha destato interesse pure nei
sistemi continentali, ottenendo, anche da questa parte della Manica, talune
considerevoli applicazioni: si pensi, ad esempio, al Bundesverfassungsericht, su cui si avrà modo di tornare più avanti [34]. Ancora una volta potranno qui riportarsi le
considerazioni svolte sul tema da Gorla [35].
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23. Esempi di sentenze.
La giurisprudenza britannica è
rinvenibile, tra l’altro, nei siti seguenti:
http://www.judiciary.gov.uk/judgment_guidance/judgments/index.htm;
In particolare può essere utilizzata la
«maschera di ricerca» rinvenibile al sito seguente:
http://www.bailii.org/form/search_cases.html.
Sempre a titolo d’esempio potrà portarsi qui una
decisione della Court of Appeal che
ha statuito, tra l’altro, sulla risarcibilità del danno nel caso in cui una
parte abbia richiesto ed ottenuto, pur in assenza dei presupposti di legge, un
provvedimento cautelare, analogo al nostro sequestro conservativo, qualificato
come Mareva (ora freezing) injunction [36]. La decisione qui di seguito trascritta è reperibile
nella banca dati del British and Irish Legal Information Institute, all’indirizzo web seguente: http://www.bailii.org/
[37].
Case No: A3/2000/0318 QBCMI IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION (MR JUSTICE AIKENS) Royal Courts of Justice B e f
o r e : LORD JUSTICE
THORPE LORD JUSTICE
POTTER and LADY JUSTICE
HALE - - - - - - - - - - - - - - - - - - - - -
- - -
- - - - - - - - - - - - - - - - - - (Transcript of the Handed Down
Judgment of Smith Bernal Reporting Limited,
190 Fleet Street Tel No: 020 7421 4040, Fax No:
020 7831 8838 Official Shorthand Writers to the
Court) - - - - - - - - - - - - - - - - -
- - - - Michael Steven Judgment As Approved by
the Court Crown Copyright © POTTER LJ: INTRODUCTION 1. This is an appeal by the third
defendant ("Mr Yamvrias) against paragraphs 1 and 2 of an order made by
Aikens J, sealed on 9th December 1999 whereby he dismissed Mr
Yamvrias’ application by summons dated 14th July 1998 for an
inquiry as to damages which Mr Yamvrias may have suffered as a result of
injunctive relief obtained by the claimant ("Yukong") pursuant to its cross-undertaking in damages given
to the court when Yukong obtained an injunction on 17th October 1997 ordering
the first defendant ("Rendsburg") to pay the sum of US$ 244,965
into court and further ordered the continuation of a freezing order
previously made against Mr Yamvrias in the sum of US$ 245,000 until such
payment-in or until further order ("the October 1997 Order").
Aikens J also ordered that Mr Yamvrias pay the claimant’s costs of the
application before him. 2. The matter has a complicated
procedural history which it is necessary to set out in order fully to
understand and consider the arguments. THE PROCEDURAL HISTORY 3. Yukong originally
claimed against Rendsburg only. Rendsburg, as disponent owners of the vessel
called "Rialto" had entered into a three year time charter for the
vessel in July 1995, repudiating it before the vessel was due to be delivered
under the charter in early 1996. The repudiation took the form of a telex of 4. On 2nd February 1996 Yukong issued a writ
claiming damages of over US$ 2.3 million for wrongful repudiation of the
charterparty and, on the same date, obtained Mareva relief against Rendsburg
from Colman J who ordered that Rendsburg must not remove assets from England
and Wales totalling US$ 3.35 million. The usual cross-undertaking in damages
was given by Yukong . 5. On 7th June 1996, Waller J
varied the form of the original Mareva order against Rendsburg and granted
Mareva relief against Mr Yamvrias, on giving leave to Yukong to join him
as third defendant in the action. The amended Points of Claim set out two
claims against Mr Yamvrias personally: (i) that in signing the charterparty
he had acted as undisclosed principal of Rendsburg so that he incurred
personal liability under the charter and was thus liable in damages for its
repudiation; (ii) that Rendsburg, the second defendant and Mr Yamvrias had
together conspired to injure Yukong by removing
funds in the amount of US$ 245,614.29 from an account of Rendsburg with Den
Norske Bank ("DNB") shortly before Rendsburg’s telex of
repudiation. US$ 164,799 of the funds were transferred to the second
defendants ("Ladidi") which Mr Yamvrias also controlled. It was
asserted that Mr Yamvrias had put the funds to his own use and that the
predominant purpose of such removal was to ensure that there would be no
funds against which Yukong could enforce
a judgement against Rendsburg. It was also alleged that the conspiracy was to
remove the funds by `unlawful means’ namely breach of Mr Yamvrias fiduciary
duty as a `shadow director’ of Rendsburg. 6. The amended form of Mareva order made
against Rendsburg reduced the sum enjoined to US$ 2.79 million and the
further Mareva order against Mr Yamvrias enjoined him from removing assets up
to US$ 2.79 million from the jurisdiction. He was also ordered to disclose
information relating to his assets. The cross-undertaking in damages was in
the usual form. Yukong as plaintiff
undertook to the court: "If the Court later finds this
Order has caused loss to the Defendants and decides that the Defendants should
be compensated for that loss, the Plaintiffs will comply with any Order the
court may make" 7. The fourth defendant
("VAL") and DNB were added as parties on 8. On 9. The trial of the claims against Mr
Yamvrias took place before Toulson J in July 1997. By a judgment dated 10. In the course of his judgment,
Toulson J made various findings against Mr Yamvrias, who had elected not to
give evidence at the trial despite the fact that, as Toulson J put it, `a
large number of questions cried out to be answered by him’. Toulson J
inferred that the reason why he did not do so was that: "Either he was unwilling to perjure
himself in the witness box and believed that if he were to tell the truth it
would be detrimental to his cause, or else he did not believe that his case
would withstand his being cross-examined on it." 11. Finally, Toulson J suggested that,
as Mr Yamvrias controlled Rendsburg and had organised disposal of its funds
for his own benefit: ".... he would presumably have been
in a position on behalf of the company to get back from himself that which he
had caused to be paid for his benefit" and went on to observe that: "... in an appropriate case it
might be within the scope of the court’s Mareva jurisdiction to require a
company, and its only effective officer, to do just that". Subsequently, on "... disreputable and devious, not
only in relation to the events which gave rise to Yukong ‘s claim, but, more significantly, in the action
itself". On 12. By summons dated "1. The Order dated 2. There be no inquiry as to damages to
the third Defendant." 13. On 14. Toulson J was also asked to continue
the Mareva order against Mr Yamvrias personally, an application which had
found no place in the summons of 29th September. In that respect
he stated: "Finally there is the matter of the
Mareva order against Mr Yamvrias and his possible application for an inquiry
as to damages against Yukong . As to the injunction itself, I have not had
argument about this, but as at present advised, it seems to me that if a
court had known the full facts now known at the time the original order was
made, a Mareva order would have been made against Mr Yamvrias in the sum of
US$ 245,000 as relief ancillary to Yukong ‘s claim against Rendsburg, and that accordingly
such an order should remain in force until repayment of that sum into the
designated account or further order". The October 1997 order which followed
was drawn in a form subsequently agreed between counsel and perfected on that
date to embody the judge’s decision. So far as relevant, its terms were as
follows: "Transfer of Monies into
Jurisdiction 1. The first defendant do by the third
defendant, no later than twenty-eight days from service of this order on the
first defendant pay the sum of US$ 244,965 into court at the Royal Courts of
Justice, London, England. 2. The sum paid into court pursuant to
the order in paragraph 1 hereinabove shall remain in court until further
order. Plaintiff’s Undertaking to Enter
Judgment Against First Defendant 3. Within forty-eight hours of the
payment into court of the sum referred to in paragraph 1 above, the plaintiff
undertakes to enter judgment against the first defendant in the action. Continuation of Injunction
Against First and Third Defendants 4. Save as aforesaid, the injunction
granted by Mr Justice Colman on 2nd February 1996, as varied by Mr
Justice Waller on 7th June 1996, restraining the first defendant [i.e.
Rendsburg] from disposing of or otherwise dealing with or diminishing the
assets held in England and Wales whether in the name of the first defendant,
whether or not solely or jointly owned up to a value of US$ 2,790,000 be
continued until further order. 5. Save as aforesaid, the injunction
granted by Mr Justice Colman on 2nd February 1996 [as varied by Mr
Justice Waller on 7th June 1996] and as further varied by Mr
Justice Toulson on 24th September 1997, restraining the third
defendant [i.e. Mr Yamvrias] from removing from England or Wales or in any
way disposing of dealing with or diminishing the value of any assets in the
jurisdiction up to the value of US$ 245,000, be continued until paragraph 1
has been complied with or until further order .... 8. The first and third defendants to
have liberty to apply to the court within twenty-eight days of the service of
this order on the first defendant to set aside or vary the terms of the
order. 15. It is not in dispute that, because
the October 1997 order was a further variation of that of Colman J and Waller
J, the cross-undertaking in damages originally given by Yukong remained
effective so far as Mr Yamvrias was concerned. 16. On 13th November 1997, Mr
Yamvrias applied to set aside the order against him or to vary it so that (i)
the requirement that Rendsburg should pay into court the sum of US$ 244,965
`by or through’ Mr Yamvrias and (ii) the `restraining’ order against him
should both be lifted unreservedly’. However, Mr Yamvrias did not serve any
evidence in support of the application punctually or, following an order that
he do so, by 17. By notice of motion dated 1st
April 1998, Yukong applied for
leave to issue a writ of sequestration against Mr Yamvrias’ assets on the
grounds that he was in breach of paragraph 1 of the October 1997 order in
that he had not procured payment into court of the sum of US$ 244,965. On "What he [Toulson J] was
recognising was that he was attempting to take, in effect, a short cut in
relation to the enforcement of a judgment against Rendsburg he having found
that the personal defendant [i.e. Mr Yamvrias] was not liable". 18. The substantive appeal against the
order of Tuckey J was heard on 19. On 14th July 1998 Mr
Yamvrias applied by summons for orders that the Mareva relief granted under
paragraph 5 of the October 1997 order should be discharged and that there
should be an inquiry as to damages suffered by Mr Yamvrias as a result of its
being granted. On 20. Mr Yamvrias’ summons in that regard
was due to be heard before Timothy Walker J on 21. The hearing of the summons took
place before Aikens J on THE JUDGMENT OF AIKENS J 22. Having reviewed the principles on
which a court will grant an inquiry as to damages in terms as to which no
point has been taken in this appeal, Aikens J identified the issues raised in
argument as being: (1) Was the injunction against Mr Yamvrias
"improperly obtained?" He identified two sub-issues as having been
argued under this head. The first related to the injunction against Mr
Yamvrias initially granted by Waller J restraining him from disposing of
assets of US$ 2.7 million until trial or further order; second, the October
1997 Order of Toulson J restraining Mr Yamvrias from disposing of assets of
US$ 244,965. For reasons which have not been challenged before us, the judge
concluded he did not need to consider whether or not the original injunction
of Waller J had been improperly obtained; thus we have not been troubled with
argument on that score. (2) Had Mr Yamvrias adduced credible evidence of loss
or damage to himself which was caused by the grant of either
injunction? Again, as a result of unchallenged findings by the judge in
relation to the original injunction, this court has been concerned only with
the question of damage arising under the October 1997 Order. (3) Whether Mr Yamvrias’
conduct, both up to the trial and before Toulson J and subsequently, was such
as to deprive him of the right to obtain an inquiry as to damages. 23. As to the first issue, Aikens J
referred to the decisions in SCF Finance Co. Limited -v- Masri [1985]
1 WLR 876 and TSB Private bank International SA -v- Chabra [1992] 1
WLR 231 and held that the injunction was properly granted on the basis that: "It was ancillary and incidental to
the order against Rendsburg that it should pay into court the assets of US$
244,965 that had been removed from DNB by Mr Yamvrias’ action". (para 31
of the judgment) In this connection he stated: "28 Toulson J .. concluded, in the
course of dealing with the claims against Mr Yamvrias, that he had controlled
Rendsburg and had been instrumental in removing Rendsburg’s assets from its
account with DNB. Those assets had found their way into accounts effectively
controlled by Mr Yamvrias and had then disappeared.... 29. It is clear, in my view, that
Toulson J had concluded, both in his judgment delivered on 23 September 1997
and in that given on 1 October 1997 (although he did not hear arguments
specifically on this point at any stage) that Mr Yamvrias was probably
controlling assets (i.e. the US$ 244,965) that were actually those of
Rendsburg. When he heard argument on ".... it seems to me that if a
court had known the full facts now known at the time the original order was
made, a Mareva order would have been made against Mr Yamvrias in the sum of
US$ 245,000 as relief ancillary to Yukong ‘s claim agaisnt Rendsburg and that accordingly such
an order should remain in force until repayment of that sum into the
designated account or further order". 30. I am therefore sure that Toulson J
was exercising a Chabra type of jurisdiction when imposing the Mareva
injunction against Mr Yamvrias. Mr Yamvrias did not pursue his right to apply
to set aside that order, as he was entitled to do by paragraph 8 of the order
of 24. As to the second issue i.e. the
damage alleged, the judge had to deal with two projects identified in a
witness statement by Mr Soutar, Mr Yamvrias’ solicitor, in which it was
stated that Mr Yamvrias was `unable to participate’ as a result of the
October Order. The first was the purchase and bare boat chartering up to four
`Panamax’ vessels, called the `Ever’ Vessels Project. That involved the
setting up of four ship owning companies, each of which would be wholly owned
by a company itself to be jointly owned by Marcan (of which Mr Yamvrias was a
director) and a company called Veritas owned and/or controlled by a Captain Skarvelis.
The second project was a project for Contracts of Affreightment for carriage
of goods from 25. In relation to the `Ever’ Vessels
project, on the evidence before the judge it was not Mr Yamvrias personally
but Marcan, as broker to Rendsburg which had suffered the damage claimed. For
a variety of reasons given by the judge, against which there is no appeal,
the claim for loss in respect of the ‘Ever’ Vessels Project is not pursued. 26. So far as the Contracts of
Affreightment scheme was concerned, I shall turn to it in more detail below,
when considering an application by Mr Yamvrias to adduce further evidence in
relation to it. Suffice it to say that Aikens J found there was no credible
evidence of loss to Mr Yamvrias in the manner put forward in the affidavits
of Mr Soutar on his behalf. 27. Finally, so far as the conduct of Mr
Yamvrias throughout the proceedings was concerned, the judge considered (i)
the findings of Toulson J that Mr Yamvrias had been instrumental in
dissipating Rendsburg’s assets so as to make it "judgment proof" (ii)
the failure of Mr Yamvrias to explain his actions at the trial before Toulson
J by electing not to give evidence (iii) what Toulson J had called Mr
Yamvrias’ dissembling, in relation to his cross-examination on assets, and as
to who owned Rendsburg and Ladidi (iv) the fact that Mr Yamvrias had delayed
in applying to enforce the cross undertaking in damages for so long. The
judge stated that he shared the view of Toulson J that Mr Yamvrias’ conduct
in the course of the case had been disreputable and devious. However, he
said: "But it has not been so shocking
that, had I concluded that he had a credible claim to damages, he should,
nonetheless, be debarred from pursuing it. However, I have taken the conduct
of Mr Yamvrias into account when assessing the credibility of the evidence
before me on whether he has actually suffered any loss as a result of the
imposition of either injunction. Because of his initial disreputable and
devious behaviour and his failure to explain himself in the witness box at
the trial and because he has not been now prepared to put forward his own
witness statement supported with a belief as to its truth, I have had to look
very carefully at the evidence put forward on his behalf by Mr Soutar. I am
sure Mr Soutar took careful instructions and I am not doubting his honesty or
credibility. But I am not prepared to accept as credible evidence any
assertion of loss by Mr Yamvrias that is made through Mr Soutar, unless there
is some other material that supports it. For the reasons that I have given
above, none of the documentary material provides credible evidence that Mr
Yamvrias has sustained damage (of the kind asserted Mr Soutar’s first witness
statement) as a result of either injunction." THE GROUNDS OF APPEAL 28. The grounds of appeal as argued
before us by Mr Steven Gee QC for Mr Yamvrias related to two broad aspects of
the judge’s decision. First, the `propriety’ of the freezing order granted
under paragraph 5 of the October 1997 Order; second, the judge’s finding that
Mr Yamvrias had advanced no credible evidence of loss as the result of that
freezing order. 29. As to the first ground, Mr Gee
submitted that the injunction was improperly granted by Toulson J by way of a
`shortcut’ method aimed at ensuring that one person (Mr Yamvrias), against
whom no cause of action had been established by Yukong , nonetheless pay to Yukong the debts of
another person (Rendsburg) against whom liability had been established. That
being so, Mr Gee submitted that the order breached the principle that a
freezing order `must be incidental to and dependent on the enforcement of a
substantial right which usually, though not invariably, takes the shape of a
cause of action’: see Channel Tunnel Group Limited -v- Balfour Beatty
Construction Limited [1993] AC 334 per Lord Mustill at 362. 30. In this connection, Mr Gee
acknowledged that the court has jurisdiction to grant a freezing order over
someone against whom no direct cause of action lies, provided that the claim
is `ancillary and incidental’ to a cause of action the subject of proceedings
against a defendant in respect of whom a cause of action is established; see TSB
-v- Chabra (above) per Mummery LJ at 241H-242A; Mercantile Group -v-
Aiyela [1994] QB 366 per Hoffman LJ at 376C-E, Steyn LJ at 376F-377B and
Sir Thomas Bingham MR at 377C. However, Mr Gee submitted that the judge did
not exercise, or at any rate should not be treated as having exercised, a
`Chabra-type’ jurisdiction in this case because (i) `the foundation’ of the
order was not Yukong ‘s cause of action against Rendsburg, but the
misconceived view (subsequently held by the Court of Appeal to be incorrect)
that there was jurisdiction to make an order against Mr Yamvrias personally
to pay money into court under paragraph 1 of the October 1997 order. Mr Gee
submitted that this was evident from the provision in paragraph 5 that the
freezing order should cease to have effect upon such payment into court. (ii)
Following the decision of the Court of Appeal on 23rd June 1998 as
to the meaning of paragraph 1 of the order, Yukong acknowledged
the position in a fax to the solicitors for Mr Yamvrias suggesting that `in
the light of the decision of the Court of Appeal’ the injunction should be
discharged, as it subsequently was. (iii) The form of the order was in any
event inappropriate to a Chabra-type order because it was completely general
and indiscriminate in its effect over Mr Yamvrias’ assets rather than being
aimed simply at the dissipation of the fund of US$ 244,965 said to belong to
Rendsburg. 31. As to the judge’s decision that the
evidence placed before him was insufficient to warrant an inquiry as to
damage, Mr Gee limited his submissions to the damage alleged to have been
suffered by Mr Yamvrias under the heading `Contracts of Affreightment’ in
respect of which the judge held there was no credible evidence of loss. THE RELEVANT LAW Inquiry as to Damages 32. Whereas the usual practice in
respect of interlocutory injunctions is not to order an inquiry into damages
on the cross-undertaking until the merits of the action have been finally
decided at trial, in cases where a Mareva injunction is involved, a defendant
or other party bound in respect of whom the injunction is discharged at any
stage may seek, and be granted, an inquiry into damages on the basis that,
regardless of the ultimate merits of the action, the injunction was `wrongly
granted’. That term is in my view preferable to `improperly obtained’,
because impropriety seems to me to carry connotations of improper conduct by
the applicant, such as non-disclosure of material facts, whereas the term
`wrongly granted’ covers the far wider circumstances in which the injunction
may be discharged and an inquiry ordered. In respect of those wider circumstances
it is necessary, for the purposes of the argument in this case, to
distinguish between the position where the order is attacked on the grounds
that the court lacked jurisdiction to make it and the position where the
court makes an order within its jurisdiction but which is subsequently
demonstrated or conceded to have been too wide in its scope or unjustified or
inappropriate on the facts. 33. Upon discharge of a Mareva
injunction, the court has a discretion whether or not to enforce the
undertaking in damages. It may enforce it by a summary award of damages: see
Practice Direction (Mareva and Anton Piller Orders: New Forms) [1994] 4 All
ER 52 at 54, paragraph (4) of which requires consideration of such a remedy
when the injunction is discharged on its return date. More usually, the
court, having exercised its discretion to enforce the undertaking, may order
an inquiry as to damages. In appropriate cases it may adjourn the application
to the trial or further order, as in Cheltenham & Gloucester Building
Society -v- Ricketts [1993] 1 WLR 1545. It may decide that the
undertaking is not to be enforced. However, if it is established that the
injunction was wrongly granted, albeit without fault on the plaintiff’s part,
the court will ordinarily order an inquiry as to damages in any case where it
appears that loss may have been caused as a result. 34. The question whether the undertaking
should be enforced is a separate question from the question whether the
injunction should be discharged. The order for an inquiry as to damages is
discretionary, such discretion being exercised in accordance with equitable
principles, taking into account all the circumstances of the case, but
bearing in mind that, since the injunction should not have been obtained,
prima facie the plaintiff ought to bear the loss: see Financiera Avenida
-v- Shiblaq [1991] The Times 14th January (CA Civil Division).
As observed by James LJ in Graham -v- 35. So far as evidence of loss is
concerned, upon an application for an inquiry, the applicant must adduce some
credible evidence that he has suffered loss as the result of the making of
the order. The court will not order an inquiry if it appears to be pointless
to do so because the intended claim for damage is plainly unsustainable. That
may be because it is clear that the order is no more than the factual context
for loss which would have been suffered regardless of the granting of the
order, or it may equally be clear that the damage is too remote. However, at
the stage of exercising its discretion whether to order an inquiry, the court
does not ordinarily hear protracted argument on whether the suggested loss
will be recoverable. If the defendant shows that he has suffered loss which
was prima facie or arguably caused by the order, then the evidential
burden of any contention that the relevant loss would have been suffered
regardless of the making of the order in practice passes to the defendant and
an inquiry will be ordered: see for instance Financiera Avenida SA -v-
Shiblaq (above); Tharros Shipping Co Limited -v- Bias Shipping
[1994] 1 Lloyd’s Rep 577. 36. The question of what is the
appropriate test of `remoteness’ in the context of a claim for damages on a
cross-undertaking is a point which has not been fully explored in the English
cases, as Neill LJ pointed out in the Cheltenham & Gloucester Building
Society case (above) at 1552C. He stated that, in exercising its
equitable jurisdiction, the court should adopt similar principles to those
relevant in a claim for breach of contract, a test adopted by Waller J in the
Tharros Shipping case (above). This test has recently been questioned
by Jacob J in R -v- Medicines Control Agency ex.p. Smith &
Nephew Pharmaceuticals Limited, Ch.D. 26th March 1999.
However, it is not necessary to go into the niceties of that question for the
purposes of deciding this appeal. Jurisdiction 37. It is now settled law that, although
the court has no jurisdiction to grant an interlocutory Mareva injunction in
favour of a plaintiff who has no good arguable cause of action against a sole
defendant, it has power to grant such an injunction against a co-defendant
against whom no direct cause of action lies, provided that the claim for the
injunction is ancillary and incidental to the plaintiff’s cause of action
against that co-defendant: see TSB -v- Chabra (above), a case in which
it appeared that assets which beneficially belonged to Mr Chabra were vested
in a limited company of which he appeared to be the alter ego. Mummery J
stated at [1992] 1 WLR 240: "If the court has power to make an
order against the company, the available evidence points strongly, in my
view, to the need for an injunction against it. There is a good arguable case
that some of the assets held in its name are the beneficial assets of Mr
Chabra either on the basis that the company holds them on trust for or as
nominee for him, or on the basis that the company is nothing more than a
convenient repository for Mr Chabra’s assets. It is therefore, important that
any such assets should be available to the plaintiff to satisfy any judgment
it may obtain against Mr Chabra. If no injunction ......., there is a real
risk that it will dispose of assets so as to defeat the plaintiff’s chances
of satisfying the judgment that it may obtain. The effect of the company
disposing of its assets would also be indirectly to reduce the value of any
shareholding which Mr Chabra had and may still have in the company. The
disposal would have the direct effect of diminishing the prospects of any
assets vested in the company which may be Mr Chabra’s beneficial assets,
being available in the That decision was subsequently expressly
approved by the Court of Appeal in Mercantile Group -v- Aiyela (above)
in which Hoffman LJ stated at p. 376: "In this case, the plaintiffs
substantive right is a judgment debt owed by Mr Aiyela. The Mareva
injunction against Mrs Aiyela is incidental to and in aid of the enforcement
of that right ... TSB Private Bank International S.A. -v- Chabra ...
was a case of a pre-judgment Mareva. ... the plaintiff had a Siskina
cause of action against Mr Chabra and the injunction against the company was
ancillary to that cause of action. Accordingly, I think that there was
jurisdiction to grant the Mareva against Mrs Aiyela, who did not need
to be joined because she was already a party to the action." See also per Steyn LJ at 1123G-1124A and
per Sir Thomas Bingham MR who stated at 1124E: "Both principle and authority
persuade me that the judges who made these orders did have jurisdiction to
make them.. I am very pleased to reach that conclusion, for if jurisdiction
did not exist the armoury of powers available to the court to ensure the
effective enforcement of its orders would in my view be seriously
deficient." He added: "The jurisdiction is of course one
to be exercised with caution, restraint and appropriate respect for the
legitimate interests of third parties. But that the jurisdiction exists ... I
do not doubt." WAS THE INJUNCTION WRONGLY MADE? 38. Turning now to the question of
jurisdiction, I consider that Aikens J was correct when he expressed himself
satisfied that Toulson J was consciously exercising the court’s `Chabra-type’
jurisdiction when imposing the Mareva injunction upon Mr Yamvrias contained
in paragraph 5 of the October 1997 order. In the course of argument on 39. Until that point in his judgment,
Toulson J had been entirely concerned with arguments addressed to the
question whether or not the order sought in paragraph 1 of the summons of 29th
September 1997 (see paragraph 12 above) was one which he could or should make
in circumstances where Mr Yamvrias had been held not to be personally liable
on the cause of action brought against him in respect of which the Mareva
relief against him had originally been granted. In that respect he stated: "It is logical and just that if a
court has jurisdiction to prohibit a party [i.e. Rendsburg] from acting in a
way intended to make itself judgment-proof, so the court should be able to order
that party to un-do measures taken with that object ... . When an order is made against a company
which is a party to an action, the court also has jurisdiction to make an
order against an officer of a company, if that is necessary in order to secure
compliance with the order by the company. In the present case, therefore, I
am satisfied that I have the jurisdiction to make the order sought, and
indeed, Mr Hamilton QC [for Mr Yamvrias] has not submitted otherwise." He then dealt with and dismissed a
number of submissions by Mr Hamilton by way of further objection to the form
of order sought in the summons. These included a submission that the summons
should be dismissed as premature because Yukong had not yet signed judgment against Rendsburg and did not wish to
do so pending a decision whether or not to appeal against the judge’s
dismissal of its claim against Mr Yamvrias, and that it was inappropriate to
make an order for immediate repayment of the funds paid away by Rendsburg if Yukong intended not
to file judgment against Rendsburg but to pursue its claim against Mr
Yamvrias by way of appeal. The judge held that the correct answer to that
objection was to require an undertaking by Yukong that it would
sign judgment against Rendsburg within forty-eight hours after it had
complied with the order. So far as the order requested under paragraph 1 of Yukong ‘s summons was concerned, which (with the wording
slightly amended) became paragraph 1 of the October 1997 order, Toulson J
said: "I will listen to any further
arguments as to the precise form of wording, but I propose, subject to Yukong giving the
undertaking to which I referred, to make an order that Rendsburg, by Mr
Yamvrias, cause the sum of US$ 245, 614 to be paid into an account to be
specified within twenty-eight days unless within that period Rendsburg or Mr
Yamvrias apply to vary or set aside this order." 40. Having so dealt with the matter, the
judge turned to the question of whether or not the Mareva order already
existing against Mr Yamvrias should be discharged. He did so with the words I
have already quoted at paragraph 14 above which I am satisfied make it clear
that, in continuing the Mareva order against Mr Yamvrias in reduced sum of
US$ 245,000, he did so by way of an order ancillary to Yukong ‘s claim against Rendsburg, pending the signing of
judgment against it. 41. When Waller LJ, in giving leave to
Mr Yamvrias to appeal from the order of Tuckey J which had granted leave to Yukong to issue a
Writ of Sequestration against Mr Yamvrias, expressed his concern that the
October 1997 Order was a "shortcut" in relation to the enforcement
of a judgment against Rendsburg he was considering paragraph 1 of that order.
It was that paragraph only which was the subject of the notice of motion for
leave to sequestrate the assets of Mr Yamvrias. Waller LJ did not refer to,
or apparently consider, the question of the court’s jurisdiction to make the
freezing order set out in paragraph 5. Equally, at the substantive hearing of
the appeal, Nourse LJ gave no apparent consideration to the question of the
court’s jurisdiction to make the freezing order. He simply echoed the concern
of Waller LJ about the jurisdiction of Toulson J, having dismissed the action
as against Mr Yamvrias, to make any order for payment against Mr
Yamvrias personally. The only reference which Nourse LJ made to paragraph 5
of the October 1997 was in relation to the attempt of counsel for Yukong to use
paragraph 5 as an aid to the construction of paragraph 1, by submitting that,
since paragraph 5 imposed a personal obligation on Mr Yamvrias which
continued until paragraph 1 had been complied with, it was indicative of an
intention on the part of Toulson J to render Mr Yamvrias personally liable to
effect or procure the payment under paragraph 1. That argument was rejected
by Nourse LJ with the observation that paragraph 5 could only be relied on if
there was any ambiguity in paragraph 1, which ambiguity did not exist in his
view. That being so, I do not consider that Mr Gee can derive support for his
submissions that there was no jurisdiction to make the freezing order from
any previous observations made in this court. 42. Nor do I consider that Mr Gee’s
position is improved by reason of the fact that, following the Court of
Appeal decision, Yukong suggested
that the injunction should be discharged. The effect of that decision was
that Yukong had no
entitlement, as it had supposed, to issue a writ of sequestration against Mr
Yamvrias under paragraph 1 of the October 1997 Order in respect of
Rendsburg’s failure to pay into court the sum ordered. It was Yukong ‘s case that, by then, it was clear that any
attempts to trace assets through Mr Yamvrias had proved hopeless and, in any
event, the consequent consent order for discharge of the freezing order was
expressly agreed to be without prejudice to the question of Mr Yamvrias’
entitlement to an inquiry as to damages. 43. Mr Gee has submitted that the
injunction should not be construed as having been made under the court’s Chabra-type
jurisdiction because of the form in which it was made i.e. a form which
applied generally to Mr Yamvrias’ assets up to the sum of US$ 244,965, rather
than being expressly limited to the proceeds of the US$ 244, 965 which had
passed from Rendsburg’s account to that of Ladidi and thereafter elsewhere. I
do not accept that submission for two reasons. First, it seems to me that in
a case such as this the answer to the question whether or not an order was
made pursuant to a particular jurisdiction is prima facie to be determined by
reference to the terms of the judgment, rather than the wording of the order.
Where, a judge makes clear (as Toulson LJ made clear in this case) that in
making a particular order he is exercising a particular jurisdiction, and at
the same time he makes clear the factual assumptions and legal basis upon
which he does so, then, unless, on appeal from that order, it is demonstrated
that those assumptions were invalid or the legal basis incorrect, the order
will ordinarily be assumed to have been regularly made in any subsequent
proceedings. It may be appropriate to make an exception in a case where the
wording of the order is manifestly inconsistent or at odds with the
jurisdiction identified by the judge; however, that is not this case. I say
that because of the second reason, to which I now turn. 44. Although it is plain that the
court’s Chabra-type of jurisdiction will only be exercised where there
are grounds to believe that a co-defendant is in possession or control of
assets to which the principal defendant is beneficially entitled, it does not
seem to me that the jurisdiction is limited to cases where such assets can be
specifically identified in the hands of the co-defendant. Once the court is
satisfied that there are such assets in the possession or control of the
co-defendant, the jurisdiction exists to make a freezing order as ancillary
and incidental to the claim against the principal defendant, although there
is no direct cause of action against the co-defendant. Since the purpose of
granting such an injunction against the co-defendant is to preserve the
assets of the principal defendant so as to be available to meet a judgment
against him, the form of order made against the co-defendant should be as
specific as the circumstances permit in respect of the principal defendant’s
assets of which he has possession or control. Thus, generally, the form of
injunction will be tailored to that purpose and should be no wider than is
necessary to achieve it. However, subject to that requirement, if a
co-defendant is mixed up in an attempt to make the principal defendant
judgment-proof and the assets or their proceeds are not readily identifiable
in his hands it is open to the court, where it is just and convenient to do
so, to make an order which catches the co-defendant’s general assets up to
the amount of the principal defendant’s assets of which he appears to have
possession and control. That was in fact the position in TSB -v- Chabra
itself. In that case, Mr Chabra, the original defendant was alleged to be the
alter ego of the co-defendant company against which the plaintiff had no
direct cause of action, but in respect of which there was a good arguable
case that assets vested in its name were in fact beneficially the property of
Mr Chabra, in particular the proceeds of sale of recently completed hotel and
restaurant interests and the house in which Mr and Mrs Chabra lived. Because
of the difficulty in ascertaining which assets of the company were in fact
assets to which Mr Chabra was beneficially entitled, the Mareva Order made
against the company was one which applied generally to prevent it from
disposing or dealing with any of its assets within the jurisdiction, albeit
it also covered `in particular’ the proceeds of sale from the hotel and
restaurant businesses. Mummery LJ observed at p.242F: "In brief, the most realistic and
practical form of relief in this case is to restrain the company from
disposing of, or dealing with, assets until it is established whether the
plaintiff is entitled to a judgment against Mr Chabra and until it is
established which, if any, of the assets apparently vested in the company are
available to satisfy any judgment obtained against Mr Chabra." 45. In this case, at the time of the
October 1997 order, Mr Yamvrias had failed to reveal what had happened to the
US$ 245,000-odd paid away by Rendsburg from its account with DNB save that
US$ 164,799 had been transferred to Ladidi and thence to VAL. He had failed
to give any (or any credible) explanation of any consideration for or purpose
behind the payments or who was the ultimate beneficiary. Toulson J was
satisfied that Mr Yamvrias was the controller of Rendsburg and Ladidi and the
position of VAL and the reason for the transfer to it remained obscure.
Toulson J expressed himself satisfied at trial that the sole purpose of the
transfer to Ladidi (as the creature of Mr Yamvrias) was to put Rendsburg’s
assets beyond the reach of Yukong and he stated
that Mr Yamvrias had `put up a cover story which has failed’. As Aikens J
observed at paragraph 29 of his judgment (see paragraph 23 above) Toulson J
appears to have concluded that Mr Yamvrias was still probably controlling
assets to the extent of US$ 245,000-odd which were beneficially owned by
Rendsburg. In those circumstances, I consider that Toulson J was entitled to
make the freezing order contained in paragraph 5 of the October 1997 order in
the form which he did. 46. Mr Gee has advanced two principal
arguments as to why the form of order was too wide. First, he submitted that
the key reason in TSB -v- Chabra for the wide wording of the order was
an element absent in this case, namely the observation of Mummery J that the
effect of the company disposing of its assets would be indirectly to reduce
the value of any shareholding which Mr Chabra might have in the company, thus
diminishing the prospects of company assets being available to meet a
judgment against Mr Chabra. I do not accept that submission. That observation
of Mummery J was a makeweight observation supplementary to the reason of
broad principle that there were assets of the company not currently
identifiable which were beneficial assets of Mr Chabra which ought to be
available to the plaintiff to satisfy any judgment it might obtain against
him. Mr Gee also pointed out that in the case of Mercantile Group -v-
Aiyela, there was present an important element not highlighted by the Court
of Appeal, namely that there was before Hobhouse J at first instance, a
potential claim by the plaintiffs against the original defendants under s.423
of the Insolvency Act 1986 and the plaintiffs were also in a position to make
application for leave for an order under s.424, in support of both of which
claims the court had jurisdiction to grant an ancillary Mareva relief. A
reference to the decision of Hobhouse J at first instance [1993] FSR 745,
makes clear that that was not the basis upon which Hobhouse J made his order.
In that respect, Hobhouse J observed: "The Mareva is being used
properly as ancillary relief in proceedings properly before the court and in
conjunction with substantive rights being enforced in the proceedings. Mrs
Aiyella is a person who has become involved in what are to be assumed to be
steps taken by Mr Aiyella to defeat the course of justice. She thereby came
under a duty to assist the course of justice. That duty gives the court the
jurisdiction to grant an injunction against her ...." It was on that basis that the Court of
Appeal upheld the judgment of Hobhouse J and approved the principle
enunciated by Mummery J in TSB -v- Chabra which he had applied. 47. Thus, I do not consider that the
injunction was wrongly made in the sense argued for by Mr Gee. Nonetheless,
Aikens J held that, while the fact that the injunction was properly granted
was an important feature in considering whether there should be an enquiry as
to damages, it was not conclusive. He therefore proceeded to consider whether
Mr Yamvrias had demonstrated that he had personally suffered damage as a
result of the October 1997 Order, having stated that, despite the
`disreputable and devious behaviour’ of Mr Yamvrias, it was not so shocking
as to debar him from claiming damages if he could demonstrate a credible
claim in that respect. It was nonetheless a feature to be taken into account
when assessing the credibility of evidence as to loss proffered on his
behalf: see the passage of the judgment quoted at paragraph 27 above. THE CONTRACTS OF AFFREIGHTMENT
SCHEME 48. The basis of the claim for damages
in connection with this scheme was the assertion of Mr Yamvrias, made in the
witness statement of Mr Soutar, that Captain Skarvelis had offered Mr
Yamvrias the opportunity to invest the sum of $100, 000 in a scheme to
charter Panamax vessels to fulfil contracts of affreightment which Captain
Skarvelis’ company Veritas had concluded to carry cargoes from Argentina. Mr
Yamvrias had indicated his intention to participate by a Fax letter dated "I am interested to participate in
the contracts of affreightment which you are negotiating on a 50/50 basis. If you accept above proposal, please
confirm your agreement by return." 49. No further relevant correspondence
was exhibited save (1) a telex of 16th March 1998 from Marcan to the owners
of one of the vessels concerned guaranteeing the obligations of Veritas under
the charterparty; (2) a letter dated 20th May 1998 from Veritas to
Mr Yamvrias at Marcan Shipping, referring to the previous year’s offer, and
indicating that, had Mr Yamvrias invested on a `50% participation’, he would
have realised almost $400,000. It offered him the chance again to participate
by remittance of $100,000 by 50. By a witness statement in answer, Mr
Moon, Yukong ‘s solicitor, challenged the case put forward by Mr
Yamvrias and made the point that, if the business opportunities spoken to
were genuine, there had been nothing to prevent Mr Yamvrias from seeking Yukong ‘s agreement, and/or to apply to the court, to allow
such investment. In this respect, the 28-day `liberty to apply’ to vary the
Mareva had not expired. 51. The judge, having already examined
in detail, and discredited, Mr Yamvrias’ claim in respect of the `Ever’
Vessels Project (see paragraphs 24-25 above), dealt quite shortly with the
Contracts of Affreightment he said: "45. I cannot accept there is
credible evidence of loss to Mr Yamvrias under this head. First, there is no
credible evidence that Mr Yamvrias was unable to go ahead with the project on
a personal basis (by investing $100,000) other than the say-so of Mr
Soutar. If I am meant to read the fax of 17th October to Veritas
as being an indication that Mr Yamvrias wished to participate personally in
the project, then it seems he thought he could do so at that stage. But on 46. Secondly there is no evidence that
Mr Yamvrias had $100,000 to invest, but was unable to use it because of the
injunction. On the contrary, when Mr Yamvrias filed evidence of his assets
(pursuant to paragraph 2 of the Order of Waller J of 47. It seems much more likely that it
was Marcan that was going to participate in the project and it did so. Hence
the guarantee that Marcan gave in March 1998 to the owners of M.V "Spear"."
52. In my view, the decision of the
judge was entirely justifiable on the limited material before him, bearing in
mind his reasons for cynicism as to the quality of the evidence advanced by
or on behalf of Mr Yamvrias in relation to his assets generally and to
support the claim in respect of the `Ever’ Vessels Project. The letter of 53. In the light of the obvious
difficulty in upsetting the finding of the judge in this respect, Mr Yamvrias
made application at the hearing of this appeal that the court should admit
additional evidence to demonstrate why the judge’s conclusions were wrong, in
the form of witness statements from Mr Yamvrias and Captain Skarvelis. No
explanation has been afforded by Mr Yamvrias or by Mr Gee on his behalf that
the evidence sought to be adduced was not available and adduced below (c.f.
Ladd -v- Marshall [1954] 1 WLR 1489). However CPR 52.11(2), which now
governs the admission of such evidence ("Unless it orders otherwise, the
appeal court will not receive evidence which was not before a lower
court") has freed the court from the straitjacket of the `so-called
rules’ laid down in cases such as Ladd -v- Marshall: see Banks -v-
Cox, (17th July 2000 unreported) C.A. per Morritt V-C. In that
decision, the court adopted the statement of May LJ in Hickey -v- Marks
(6th July 2000, unreported) "Since the Civil Procedure Rules
are a new procedural code, the former body of authority will not apply,
although of course, the intrinsic persuasiveness of all relevant
considerations, including, if they arise, those which were considered
persuasive under the former procedure, will be capable of contributing to a
just result." Thus, it is plain, that while the court
will pay regard to the principles in Ladd -v- 54. At the outset of the appeal, with
the consent of counsel, we read the further evidence `de bene esse’, without
prejudice to the objection of Mr Collins QC on behalf of Yukong that it should not be admitted. 55. The points made by the further
evidence are these. First, in relation to paragraph 47 of Toulson J’s
judgment (see paragraph 51 above), Mr Yamvrias states that, while Marcan
received benefit from the scheme in the form of substantial brokerage (in
which respect it acted as shipbroker and not investor) it did not invest in
any other sense. He asserts that, even if so disposed, it could not do so, being
authorised under the Regulations of the Baltic Exchange to act as a broker or
agent only and not as a principal within the Baltic Market. That may or may
not be so in the particular circumstances of Mr Yamvrias’ proposed
investment. However it was peripheral to the judge’s reasoning as to whether
Mr Yamvrias had demonstrated personal loss. Second, so far as his assets are
concerned, Mr Yamvrias says that, if the injunction had not been in place, he
would have been able to raise the money to make the investment by means of a
bank loan backed by the equity in his house (jointly owned with his wife),
then some £150,000. This carries the matter little further and fails to
address the point which concerned the judge, namely the absence of
contemporaneous supporting evidence. 56. Third, the witness statement of
Captain Scarvelis supplies a degree of chapter and verse in respect of the
Contracts of Affreightment Scheme operated by Veritas. He affirms and
exhibits a copy of the faxed letter of 17th October 1997 and
states that, shortly afterwards, Mr Yamvrias advised him that he was unable
to participate in the venture because he was involved in litigation which had
resulted in a block on his assets preventing him from raising the necessary
finance. He states that the first year of the scheme’s operation was
September 1997 - June 1998 and that it yielded substantial profits. He wrote
again to Mr Yamvrias on 23rd September 1998, advising him of the
results and inviting him to participate in the second year of operation, due
to commence on 1st October 1998. Save in two vital respects the
layout and content of the text of that letter are identical to the layout and
text of the letter of 57. In the face of these discrepancies,
Mr Collins submitted that it is plain that the date and text of the letter
exhibited by Captain Scarvelis, rather than the date and text of the letter
exhibited by Mr Yamvrias, are authentic. The first year of operation had not
been completed by 20th May, whereas it had by the 23rd
September. This suggests ex post facto alteration by Mr Yamvrias, not least
because the figures shown for the first year’s profits could not have been
ready by 20th May. Whether or not that was so, it is plain that Mr
Yamvrias was presented with the opportunity to invest in the second year of
operation at a time (September 1998) when he was free of the constraints of
the injunction, it having been discharged by consent on 10th
August 1998 (see paragraph 19 above). Thus, his earlier assertion that the
injunction prevented him from making the investment in the second year is
wholly unsustainable. Mr Gee did his best to argue, but failed to convince
me, that this was not so. In my view the production by Captain Scarvelis of
the letter of 58. I would therefore dismiss this
appeal. LADY JUSTICE HALE: I
agree LORD JUSTICE THORPE: I
also agree Order:
Appeal dismissed. An order for costs on the
standard basis. Permission to appeal refused. (This order does not form part of
approved judgment) BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII |
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