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No Black Holes, Please, We’re Jersey

Paul Matthews

Introduction

The rules relating to interim injunctions in Jersey have developed rapidly in the last 20 years. Most of this development has been to absorb English practices and to follow English case law. The Mareva injunction and the Anton Piller order, for example, came by this route. But in one area at least this development was complicated by Jersey’s position as a place where assets were rather than a place where disputes were litigated. This was - is - the case of the interim injunction in aid of litigation elsewhere, and typically in England. Recently the Court of Appeal of Jersey has restated the jurisdictional principles in terms which have occasioned surprise in some quarters. This note discusses that case, Solvalub Ltd v Match Investments Limited [1], and the wider implications of the decision.

The facts in Solvalub

Solvalub was a company incorporated in England. Match was a company incorporated in Ireland. Solvalub alleged that the parties had made a written contract in Russia for the sale of gas oil. The document concerned provided for English law to govern and for the English High Court to have exclusive jurisdiction in case of any dispute. Solvalub alleged that it delivered oil under the contract, but had not been paid. It commenced proceedings for the price before the High Court in London. Match denied the claim, pleading both that there was no contract and also that no oil had ever been delivered.

As it appeared that Match had a bank account in Jersey, Solvalub also commenced proceedings before the Royal Court, claiming damages and interest. The Order of Justice contained a Mareva injunction, which the Bailiff signed, and the order was served on the bank concerned. This injunction purported to restrain Match from dealing with any funds held with the bank. However, no attempt was made to serve the order on Match. As Match was outside Jersey, leave of the court would have had to be sought, and none ever was. The Order of Justice also contained an injunction restraining the bank from disposing of the balance belonging to Match, and also requiring it to give discovery about the accounts.

Although it falls outside the substance of this note, we should record in passing that some of these orders appear strange to an English lawyer. Solvalub claimed no beneficial interest in Match’s bank account and alleged no cause of action against the bank. The bank was not a defendant, but a party cited, and this was not a distraint, but an injunction addressed to the person rather than to the thing. In England the bank would not have been restrained from disposing of the balance in the account [2] . It would have been sufficient that, having notice of the injunction against Match, it would be guilty of contempt if it assisted Match to breach its terms [3] . But Jersey appears to follow a different practice [4] . As for the discovery order, such an order can be made in England against a non-party if a proprietary claim is asserted and it is alleged that the non-party has handled the property claimed [5], but that was not this case.

When the case came back to the Royal Court one week after the original order was made, Match’s advocate accepted service of the proceedings on its behalf, albeit under protest as to jurisdiction. Nearly three weeks later, Match issued a summons to strike out the proceedings on a number of grounds, only one of which was that the Royal Court had no jurisdiction. Moreover, some 10 days later, Match filed an answer to the Order of Justice, pleading to the allegations made in it, and, indeed, making a counterclaim for delivery up of documents, an injunction and damages. Admittedly, this was all done whilst still "under protest as to the jurisdiction".

The question of ‘jurisdiction’

There are a number of different senses in which the word ‘jurisdiction’ is used [6] . For present purposes, there are two very different meanings. They were in fact discussed in the recent Privy Council decision of Mercedes Benz v Leiduck [7] . One was the question of whether the court could assert jurisdiction over a particular defendant at all. In common law systems, this question usually arises when the defendant is outside the territory concerned. The Privy Council in Mercedes Benz v Leiduck accordingly called this ‘territorial’, but it might arise internally, for example, where the defendant has diplomatic or other immunity from any court procedures. The second kind of ‘jurisdiction’ arises when there is a defendant over whom the court possesses jurisdiction in the first sense. This is jurisdiction in the sense of ‘power’ or ‘competence’. Can the court make this order? In Leiduck both questions arose. Could the courts of Hong Kong grant an interlocutory injunction against a person outside Hong Kong who had not submitted to their jurisdiction, when there was no substantiative litigation against him proceeding there? The Privy Council, by a majority, said No. According to Hong Kong law, the courts had no territorial jurisdiction against him and, according to a decision of the House of Lords [8], they would have had no power jurisdiction to grant an interlocutory injunction against him even if he had submitted to the court, because there was no substantive cause of action in Hong Kong to which it could be ancillary.

So, when Match protested that the Royal Court had no ‘jurisdiction’, what kind was it? The Court of Appeal assumed that it was only the latter, ie ‘power’. This may not be correct in fact. Match’s summons to set aside the proceedings claimed that the Royal Court had no jurisdiction for two reasons:

1. Match had not "submitted to the jurisdiction of the Royal Court";

2. Solvalub had no proprietary right to the monies in Match’s bank account.

The second reason can only be a ‘power’ jurisdiction point. But the first looks very much like a ‘territorial’ jurisdiction point.

The Royal Court’s view

Be that as it may, before the Royal Court (presided over by Deputy Bailiff Hamon) Match’s summons to strike out succeeded [9] . The court followed Mercedes Benz v Leiduck, and held that an Order of Justice claiming Mareva relief and nothing more was not within Rule 7 of the Service of Process (Jersey) Rules 1994 and hence the Royal Court had no power to permit service of such an Order of Justice outside Jersey. The applicable rule in Hong Kong (dealt with in Leiduck) was indistinguishable from Rule 7. Hence the Royal Court was merely accepting that the construction of the Jersey rule should follow the common law case law [10] . Now this dealt only with territorial jurisdiction. The Royal Court treated Match’s acceptance of service in Jersey under protest as to jurisdiction as if it had not happened. So the proceedings were set aside in toto.

The Court of Appeal’s view

But the Court of Appeal [11] took a different view. It considered that, in pleading to the allegations in the Order of Justice, and in adding a counterclaim, Match had accepted and thereby submitted to the jurisdiction of the courts. We have not time to examine this in detail, but an important procedural point was raised here. How do you protest against jurisdiction and at the same time protect your position in the litigation if you are held to be wrong? We shall return to this question (briefly) later. On the assumption, then, that Match had submitted to the jurisdiction, the Court of Appeal went on to consider the question of jurisdiction in the second sense, that of ‘power’.

But, before we look at that question, let us just notice that, even if Match did submit to the Jersey jurisdiction, this could only have happened some weeks after the original injunction was granted [12] . At the time the Order of Justice was signed, there was no submission. Accordingly, at that time there was no ‘territorial’ jurisdiction. At the very least, the Court of Appeal should have upheld the Royal Court in holding that the orders were made against a defendant in respect of whom there then was no jurisdiction, even if that defendant should subsequently consent to the Jersey court having jurisdiction and thus give it power to make the orders. As far as I am aware, there is no doctrine in Jersey of ‘feeding the estoppel’ in cases of lack of jurisdiction. So the fact that a defendant consents subsequently to jurisdiction does not put right any earlier absence of jurisdiction. An injunction made without jurisdiction is not necessarily void, but it is certainly irregular, and a person affected by it is entitled to have it set aside ex debito justitiae. [13]

We may notice, further, that Solvalub made no application to the Royal Court or to the Court of Appeal at any time after Match’s answer and counterclaim were put in, to the effect that, if Solvalub were wrong about jurisdiction up till then, the court should be invited to confirm or reimpose the injunction. As Scott J once put it in a case of a defendant outside the jurisdiction who had not so far consented to or accepted English jurisdiction [14], "until service [of process] has been effected, the foreign defendant does not become subject to the jurisdiction of the court". It may be objected that this is all formalistic, and that the court would obviously have confirmed or reimposed the injunction if asked to do so. However, that cannot be assumed. For one thing, the factual circumstances then prevailing might well have been different. The information available to the court might have been considerably greater, or simply more accurate. Moreover, Match would certainly have been on hand by then to put its point of view. There is no certainty that the result of an application subsequently for an injunction would have been the same as at the outset.

‘Power’ Jurisdiction

Let us now return to the question of ‘power’ jurisdiction. As we have seen, the decision of the House of Lords in The Siskina [15] established that the English courts could not grant an interlocutory injunction in aid of substantive proceedings elsewhere. However, the Court of Appeal of Jersey, impressed by the dissenting opinion of Lord Nicholls in Leiduck, reconsidered the Jersey position.

First, it looked at the reasoning of the Royal Court. The Royal Court had considered three Jersey authorities, all at Royal Court level. The first was Middle East Engineering Ltd v Edwards [16] . The parties had no connection with Jersey, save that the first defendant had an account with the second defendant, a Jersey bank. A dispute arose between them as to the first defendant’s employment in Bahrain. The plaintiff issued proceedings in Jersey and obtained an ex parte interlocutory injunction, restraining the defendants from disposing of the money in the bank account. (At the outset the order is referred to as a ‘distraint’, but later in the judgment it is made clear that it was an interlocutory injunction of the kind described.) The plaintiff claimed no proprietary interest in these monies. On application by the first defendant, the Royal Court discharged the injunction. The basis of the court’s decision appears to have been that the court had no ‘territorial’ jurisdiction. Although it is not clear from the report, it seems that no substantive claim was made against the defendants in the Jersey proceedings, and the substantive litigation had been commenced in Bahrain. Nor does it appear from the report whether the first defendant was served (or accepted service) within Jersey. Presumably the answer to the last question was negative, otherwise, the point about ‘territorial’ jurisdiction could not have been decided as it was.

The second case, dealt with very briefly, was Dailey International Sales Corporation v Middle East Petroleum Equipment [17] . This was a case where two Texan companies were litigating before the Texan courts. One of them sought and obtained an interlocutory injunction in Jersey to freeze a sum of money in a Jersey bank account. However, this injunction was granted by Deputy Bailiff Crill on the basis that the plaintiff claimed a proprietary interest in the assets concerned [18] . Both the Royal Court and the Court of Appeal therefore treated it as not authoritative on the present point.

The third case was Johnson Matthey Bankers Ltd v Arya Holdings Ltd [19] . In this case, a non-Jersey company took proceedings both in Jersey and in England against a Jersey registered company, on a guarantee given by the Jersey company in support of debts of its subsidiaries. In the Jersey proceedings, an interlocutory injunction and discovery orders were made ex parte, inter alia to restrain the Jersey company from disposing of assets within Jersey. The defendant company then sought to set aside the injunctions. The grounds for doing so were threefold:

• the plaintiff’s alleged non-disclosure in making the ex parte application;

• the fact of there being simultaneous proceedings in Jersey and England;

• that it was too early for discovery in the action.

No argument whatever was addressed on the question of jurisdiction. In relation to ‘territorial’ jurisdiction, this was no doubt because the defendant company was registered in Jersey, and could be served there. But neither was anything said about ‘power’ jurisdiction. The Siskina was not cited.

The Royal Court in the present case referred to a dictum of Deputy Bailiff Crill in Johnson Matthey when that judge was considering (and rejecting) the second objection:

"Where there is an action in the UK and an action in Jersey, it is quite customary for us in Jersey to be called in aid to impose an injunction so that a judgment obtained in an English court should not be rendered nugatory ..." [20]

Based on this, Deputy Bailiff Hamon in the present case regarded Johnson Matthey as inconsistent with Middle East Engineering, which in fact had not been cited in Johnson Matthey. But the facts were very different. In Middle East Engineering the argument was about territorial jurisdiction, and it was held that there was none. In Johnson Matthey, on the other hand, the argument was not about such jurisdiction, as it was plain that it existed.

The Court of Appeal in the present case held that, if and to the extent that these two cases were inconsistent, then the Johnson Matthey case was to be preferred. They said that the result was that:

"There cannot be said to be a strong line of local authority, but what there is supports the view that the power of the Royal Court to grant a Mareva injunction in aid of proceedings in a foreign court does exist".

Comments

A number of comments can be made on this conclusion. The first is that the Johnson Matthey dictum was just that - a dictum. In fact, as Deputy Bailiff Crill recognised in referring to the "action in Jersey", there was a substantive cause of action in Jersey, the guarantee litigation. So the ‘power’ jurisdiction point did not arise on the facts. Secondly, even if it had arisen, the Royal Court was not asked to decide, and did not decide, the point at all. All the objections made to the interlocutory orders were arguments about discretion. The question was, therefore, what effect on discretion did it have if the same cause of action was being litigated in two or more places simultaneously?

The third point is that, even if the Royal Court in Johnson Matthey had been asked to decide the ‘power’ jurisdiction point, it had not had cited to it the leading English authority on the point, namely The Siskina. Given that this area of the law was imported almost entirely from England (reflected in the fact that three of the four authorities cited in the case were English), any opinion on the ‘power’ jurisdiction point which did not take account of The Siskina would plainly have been given per incuriam.

Fourthly, and crucially, there had been a number of Jersey cases holding that The Siskina was to be followed in Jersey on the question of ‘power’ jurisdiction. They were Abbott Industries Inc v Warner [21], James Capel (CI) Ltd v Koppel [22], Asher v Cross [23] and (dictum only) Aldor Investments AG v Aronson [24] . The first three were cited to the Court of Appeal, but that court appears not to have considered them in this connection. It simply stated that the single dictum from Johnson Matthey constituted "a line of local authority" which "supports the view" that there was ‘power’ jurisdiction. With great respect, if the court had examined the relevant authorities properly, it could not have come to the conclusion it did. Astonishingly, the court did cite the first two of the authorities later in its judgment, but said merely that they were "no longer [to] be treated as authoritative"! It is, of course, right to say that Lord Nicholls in his dissenting opinion in Leiduck took a different view from The Siskina on the question of ‘power’ jurisdiction. But that was a dissenting view in that case, and inconsistent with the earlier House of Lords case. And, so far as Jersey was concerned, there was a series of local decisions to the contrary.

Policay Arguments

The Court of Appeal then proceeded to consider policy arguments for adopting the view of Lord Nicholls, and concluded that it should do so. The principal arguments were that not to grant interlocutory injunctions in aid of foreign proceedings would be a "a serious breach of the duty of comity which courts in different [jurisdictions] owe to each other", and that the consequence would be the loss of Jersey’s reputation as a high class finance centre.

There are a number of comments to be made on this. First, the ‘comity’ argument is an odd one to make. It is old fashioned. It has not been relied on in England in the context of enforcement of foreign judgments since the middle of the 19th century [25] . And it is one thing to aid other nations - or their courts - when they ask you to do so, as with letters of request. It is quite another to do so when one only of the parties to proceedings makes that request. Moreover, even if that is justified without the court’s asking, in the case of enforcement of a foreign judgment, which only occurs once the foreign court has spoken, why should ‘comity’ entail your getting involved at any earlier stage, before the foreign court has said where the merits lie? Further, if the foreign court’s system deliberately makes no provision for interim freezing orders of the kind requested, why should the Jersey court consider itself under some kind of international obligation to supply the deficiency?

Undoubtedly there are arguments both ways on these points. Perhaps all they demonstrate is that ‘comity’ is far too vague and shapeless to justify any sweeping change of the kind referred to.

The second argument is quite different. Instead of looking at comity, it looks at self-interest. If we do nothing (it runs), our reputation will suffer. Honest men will see Jersey as a haven for scoundrels. No respectable jurisdiction wants to be, as Lord Nicholls put it in Leiduck, "a black hole into which a defendant can escape out of sight and become unreachable." [26] Now, one does not have to go as far as Gordon Gekko to know that there is nothing in itself wrong with self-interest. But the real problem here is, in which direction does self-interest lie?

Indeed, as Lord Denning used to say, take this very case. It is not self-evidently correct that, in order to attract good money and drive out bad, the Jersey court should adopt Lord Nicholls’ approach. For one thing, not all plaintiffs bring actions because they have genuine actions to pursue. In many parts of the world, litigation is simply a negotiating tactic. At the interlocutory stage, the court cannot know where the merits lie. The Siskina was a useful self-denying ordinance, because it only allowed interim relief to be given where the same courts had control of the substantive litigation. To become known (as some countries have) as a jurisdiction where it is extremely easy to obtain an interlocutory injunction - a very valuable tactical weapon in negotiating disputes - may have negative consequences. Could Jersey not become known as a jurisdiction to avoid because innocent persons may be harassed there, much as many today choose not to do business in the USA because of some of the characteristics of the legal systems there?

Again, the answer is not obvious. But what this suggests is that the question is ultimately a political one, best decided at the level of legislation (direct or indirect) rather than at that of judicial decisions. The courts are simply not equipped to weigh up the consequentialist arguments as effectively as legislative bodies. Nor can their positions so easily withstand the criticism that they will attract, and the responsibility that they will bear, if their choice should turn out to have been a bad one.

Leaving the question of forum aside, there are two other points of difference between Jersey and England which may be relevant to the present question. Neither in fact was referred to by the Court of Appeal. First, many people have no connection with Jersey save that they have assets there. Thus a higher proportion of Jersey litigation involves non-Jersey people than, say, of UK litigation involves non-UK people. So what applies in the UK need not necessarily apply in Jersey. Secondly, the Jersey courts are not so experienced in some areas as those of other countries, for example, the Chancery Division or the Commercial Court in England. So there may be more to be said for Jersey ‘holding the ring’ in some cases whilst another, more specialised court decides the case.

‘Territorial’ Jurisdiction

All of this so far has been about ‘power’ jurisdiction. The Siskina is not to be followed in Jersey on this point. But the position in Jersey on ‘territorial’ jurisdiction remains as it was. Unless a defendant is in Jersey, or submits to the jurisdiction of the Jersey court, or is within the ‘foreign’ service provisions of the Service of Process (Jersey) Rules 1994, or the special rules for trusts in the Trusts (Jersey) Law 1984, the Jersey court has no ‘territorial’ jurisdiction [27] . It may therefore be asked, what is the point of the Jersey court having a ‘power’ jurisdiction in such a case if it has no ‘territorial’ jurisdiction? The answer may be, not much. In the cases where the ‘power jurisdiction’ is most needed, it may be incapable of being invoked, for want of ‘territorial’ jurisdiction. But there will be a few cases where the defendant can be served in Jersey, is within the ‘long arm’ rules, or submits to the jurisdiction. Abbott Industries v Warner, for example, would be such a case. The change wrought by Solvalub to Jersey law and practice may be very small indeed, but it is nevertheless there.

Arising out of this, the relevant legislative or rule-making bodies will perhaps wish to reconsider the question of the proper territorial scope of the Jersey courts. A full discussion is really beyond the scope of this note, but it may be as well to say that the matter is not easy. Other systems may base jurisdiction on the presence of assets, or even on nationality. But, for better or worse, the general principle in Jersey has hitherto been that jurisdiction is based on physical presence of the defendant in the Island. The "foreign service" provisions of the 1994 Rules, and the rules on trusts in Article 5 of the Trusts (Jersey) Law 1984, are exceptions to that principle which have to be justified as such. Should further exceptions be made? I return briefly to this question later, in considering the English position.

We noted above the important practical question of taking part in order simply to protest the jurisdiction. How do you protest that the court has no jurisdiction whilst protecting your position if you turn out to be wrong? In England, it was originally held that you could not. If you appeared and argued, but lost, you had submitted [28] . So the Rules of the Supreme Court were changed, and there is now a procedure for appearing under protest [29] . If you lose on jurisdiction, but have taken no other point or step in the proceedings, then you have not submitted [30], and you can stay away if you choose.

There is a similar procedure in Jersey for matrimonial causes [31], but nothing in the general law. From comments in the cases, it appears that the Jersey practice is for a party to appear under protest, to issue a summons to strike out the proceedings on grounds of absence of territorial jurisdiction, and to apply for a stay of the proceedings in the meantime [32] . But the defendant must not file a substantive answer to the claim [33], or make a counterclaim [34], or take part in the proceedings before the Jersey court in the meantime [35] . And he must rely on the court staying the proceedings in order to protect himself against a judgment in default [36] . If the court should refuse to do so, it is too bad. And what happens if he loses the jurisdiction point? Has he nevertheless submitted to the court’s jurisdiction by appearing under protest, as the English cases held? There is no Jersey authority [37] . Plainly, it would be sensible for the Jersey rule making body to amend the Royal Court Rules to provide for some procedure comparable to that in England, under which the defendant could apply to set aside the proceedings for lack of jurisdiction, without having to take the risk, if he loses, that he will have submitted to the jurisdiction by his appearance.

The Position In England

What about England? There is a great irony here. At the time Solvalub was decided, in December 1996, the relevant English law was pretty much as stated in The Siskina. It had been criticised [38], but only partly reversed by statute. First, it was cut down by section 25 of the Civil Jurisdiction and Judgments Act 1982, enabling the High Court to grant interim relief in aid of proceedings in other Brussels (and later Lugano) Convention states and within the scope of the Convention. And secondly, section 44(3)(e) of the Arbitration Act 1996 enabled the High Court to grant interim relief in aid of arbitration proceedings [39] . But it was still there in substance. So Solvalub represented a partial breakaway by Jersey from England.

In fact, however, The Siskina has now been completely overturned in England, on both points. First, section 25 of the 1982 Act has been extended by Order in Council [40], so that it now permits the High Court to grant interim relief in aid of any proceedings, within or without the Conventions, and wherever in the world they are taking place. Second, Order 11 of the Rules of the Supreme Court has been amended [41] by the addition of a new Rule 8A, permitting service out of England and Wales, with leave, of an originating summons in the High Court claiming interim relief in aid of foreign proceedings. Both changes came into effect on 1 April 1997.

So, at one gasp, England has caught up with Jersey, and has overtaken it. That does not mean that Jersey should necessarily follow England’s example. It is a difficult - political - question how far the Jersey rule should differ from the English. The balance is tricky. There are some who criticise the new English position on the same ground that they criticise US (long arm) jurisdiction. It is wrong for a state to attempt to extend its authority to other nations and their subjects without good excuse [42] . If you have the parties to the substantive litigation in - or at least subject to - your jurisdiction, that may be a good excuse. If you do not, then you must find some other reason, and one that does not upset your neighbours. If you do upset them, they may decide not to enforce your judgments. [43]

Secondly, hitherto English lawyers, with rare exceptions, have only been involved in interim relief when the substantive proceedings were here as well. This was good, because it enabled the English courts to tailor the relief to the proceedings which they controlled. That will no longer be the case, and - a financial services export point - foreigners will not have to go there for the litigation if all they want is interlocutory relief. So there may be less large scale multinational litigation fought in England than previously.

Guernsey

Lastly, a glance across the water to Guernsey. There the rules on territorial jurisdiction are at first sight wider than in Jersey. Apart from service within the Bailiwick [44], the Royal Court may give leave to effect service out of the jurisdiction, but only where satisfied that the matter "is properly justiciable before the court" and "is a proper one for service out of the jurisdiction" [45] . There is no list of specific cases as there is in Jersey or England. But, as in Jersey, there are special rules relating to trust jurisdiction [46] ; and in practice the normal rule applied is that a defendant should be sued in his own jurisdiction [47] . As to "power" jurisdiction, since 1988 the Royal Court has enjoyed power, by statute, to grant an injunction in relation to proceedings outside Guernsey [48] .

Conclusion

So where are we now? Solvalub establishes, albeit on somewhat shaky precedent, that the Jersey courts have a ‘power’ jurisdiction to grant interlocutory relief even though there is no substantive cause of action within Jersey. In this, it departed from the then - though not the current - English law. But it does not touch the ‘territorial’ jurisdiction question, save that it makes clear that putting in an answer and making a counterclaim will amount to submission to the jurisdiction even though done under protest.

The next steps must surely be for the relevant legislative and rule making bodies in Jersey. They have at least two tasks:

• to reconsider the ‘territorial’ jurisdiction of the Jersey court (though not necessarily to change it);

• to provide for a risk-free means of challenging the ‘territorial’ jurisdiction.

They may also - depending on the answer to 1 - wish to reconsider the ‘power’ jurisdiction point. Should the Jersey courts interfere at an interlocutory stage in the litigation of other nations, or should they not?

Paul Matthews is a solicitor of the Supreme Court of England and Wales and a consultant with the firm of Withers, 12, Gough Square, London EC4A 3DE

Footnotes - (Top)

[1] - December 13th, 1996, unreported.

[2] - See per Millett LJ in National Provincial Building Society v Ahmed [1995] 38 EG 138, 140.

[3] - Z Ltd v A [1982] QB 558; AG v Newspaper Publishing Plc [1988] Ch 333.

[4] - See also Asher v Cross, September 23rd, 1994, unreported, where an injunction was also addressed to parties cited.

[5] - Bankers Trust Co v Shapira [1980] 1 WLR 1274.

[6] - See Turnbull v Walker (1892) 67 LT 767, and Beale in Cambridge Legal Essays, 1926, at 41-42.

[7] - [1996] AC 284.

[8] - The Siskina [1979] AC 210.

[9] - September 13th, 1996, unreported.

[10] - See De Lasala v De Lasala [1980] AC 546, 557-58.

[11] - Le Quesne, Collins, Southwell JJA.

[12] - ie when the answer and counterclaim were put in.

[13] - Isaacs v Robertson [1985] AC 97.

[14] - Altertext Inc v Advanced Data Communications Ltd [1985] 1 WLR 457.

[15] - [1978] AC 210.

[16] - 1980 JJ 265. The existence of the second defendant appears only from the Act of the Royal Court.

[17] - April 3rd, 1985, unreported.

[18] - It appears that "freezing" injunctions have been granted on this basis in Jersey in divorce cases where the assertion of a proprietary claim was based on the likely success of a claim elsewhere for a share of the other spouse’s assets. But the argument appears not to have been made in Asher v Cross, September 23rd, 1994, unreported.

[19] - 1985-86 JLR 208.

[20] - Ibid, 214.

[21] - 1985-86 JLR 375.

[22] - 1989 JLR 51.

[23] - September 23rd, 1994, unreported.

[24] - May 25th, 1990, unreported.

[25] - See Morris, The Conflict of Laws, 4th ed 1993, 104; Goddard v Gray (1870) LR 6 QB 139, 148-150; cf Lane v Lane 1985-86 JLR 48, 57.

[26] - [1996] AC 284. Compare the famous dictum of Scrutton LJ in Czarnikow v Roth, Schmidt & Co [1922] 2 KB 478, 488: "There must be no Alsatia in England, where the King’s writ does not run." Alsatia was the popular name for a small, lawless area south of Fleet Street in eighteenth century London. The site is now occupied largely by the offices of Messrs Freshfields.

[27] - Carslund, femme Godman-Irvine v Jacomb, Lloyds Bank Ltd à la cause (1955) 248 Ex 545, 249 Ex 405; Middle East Engineering Ltd v Edwards 1980 JJ 265; Asher v Cross September 23rd, 1994, unreported.

[28] - Boissière v Brockner (1889) 6 TLR 85; Harris v Taylor [1915] 2 KB 580; Henry v Geoprosco International Ltd [1976] 1 QB 726.

[29] - RSC Ord 12 r 8.

[30] - Ibid, r 8(6).

[31] - See the Matrimonial Causes Rules 1979, r 12(5)(6), and see Asher v Cross.

[32] - Solvalub; James Capel (CI) Ltd v Koppel 1989 JLR 51, 56-57.

[33] - Wright v Rockway Ltd 1994 JLR 321; Solvalub.

[34] - Solvalub.

[35] - Rothmer v Hill Samuel (CI) Trust Co Ltd, May 12th, 1991, unreported.

[36] - Le Quesne JA in Solvalub thought he could safely do so.

[37] - The Court of Appeal in Solvalub declined to express a view on the point.

[38] - Castanho v Brown & Root (UK) Ltd [1981] AC 557, 573; South Carolina Insurance Co. v Assurantie Maatschappij ‘de Zeven Provincien’ [1987] AC 24, 44; Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, 340-1.

[39] - Of course, neither provision applies to Jersey, and nor is Jersey a party to the Brussels and Lugano Conventions.

[40] - The Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997, SI 1997 No 302.

[41] - RSC (Amendment) 1997, SI 1997 No 415.

[42] - See eg Tate and Lyle Industries Ltd v CIA Usina Bulhoes, The Times, 25 October 1996, and also the recent decision of the English Court of Appeal in Hughes v Hannover Ruckversicherungs AG, January 28th, 1997, unreported, refusing to grant worldwide anti-suit injunctions at the request of the Bermuda Supreme Court.

[43] - cf The (UK) Protection of Trading Interests Act 1980, s 5 (restricting enforcement of certain foreign judgments).

[44] - Royal Court Civil Rules 1989, rr 1-3, 6.

[45] - Ibid, r 7(1), (2).

[46] - Trusts (Guernsey) Law 1989, s 4.

[47] - Booilushagg Trust Company Ltd v Kaye (1992) 13 GLJ 14.

[48] - Law Reform (Miscellaneous Provisions) (Guernsey) Law 1987, s 1(7), in force 18 March 1988.