Practice

Appeal from ex parte decision - review rather than rehearing usual procedure

Dyson Ltd v Registrar of Trade Marks: ChD (Mr Justice Patten): 15 May 2003

The appellant applied to register two trade marks in respect of cyclonic cleaners.

The application was refused by the Registrar of Trade Marks, and his decision was upheld by the hearing officer.

The appellant appealed to the court.

On the appeal, the registrar asked the court to give an authoritative decision as to whether or not, according to article 6 of the European Convention on Human Rights, an appeal to the court under section 76 of the Trade Marks Act 1994 should take the form of a rehearing or could be limited to a review of the registrar's decision.

Henry Carr QC (instructed by Wragge & Co, Birmingham, for the appellant); Michael Tappin (instructed by the Treasury Solicitor) for the respondent.

Held, that under the Civil Procedure Rules 1998, rule 52.11(1), every appeal to the court was limited to a review of the decision of the lower court unless the court considered to the contrary that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing; that the characterisation of the decision under appeal as administrative or the proceedings as ex parte, as they were in the present case, could not, by itself, determine how the appeal should be conducted; that it was necessary in every case to identify the type of decision under review and the legislative or administrative framework in which the relevant civil rights were created and operated; that the court was not required as a matter of course to exercise its power to proceed by way of rehearing whenever it was faced with an appeal from an ex parte hearing, especially where the points which were likely to arise were capable of being adjudicated upon in the context of an appeal by way of review; that the power to conduct an appeal by way of rehearing was there and might be exercised in the rare cases when it was necessary in order to allow justice to be done and in the ordinary case a review should be the norm; and that, on the facts, it was unnecessary for the appeal to be conducted by way of rehearing.

Execution - garnishee order sought against foreign bank holding moneys in foreign judgment debtors' account - no garnishee or third party debt order to be made against bank where applicable foreign law made no provision for its discharge on payment made pursuant to order

Socit Eram Shipping Co Ltd v Compagnie Internationale de Navigation and others: HL (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough and Lord Millett): 12 June 2003

Execution was sought on moneys held to the judgment debtors' credit in Hong Kong with a bank incorporated and carrying on business there but with a registered branch in London.

The debt payable by the bank to the judgment debtors was accordingly situated in Hong Kong and governed by local law under which a garnishee order made in England did not extinguish the garnishee's debt to a judgment debtor in Hong Kong.

Nor would the Hong Kong court give effect to an English garnishee order by reciprocal enforcement or action.

Mr Justice Tomlinson [2001] 1 All ER (Comm) 843, refused to make absolute a garnishee order nisi obtained by the judgment creditor against the bank.

The Court of Appeal [2001] EWCA Civ 1317; [2001] Gazette, 20 September, 37; [2001] 2 All ER (Comm) 721, allowed the judgment creditor's appeal.

The bank appealed.

John Higham QC and Christopher Harrison (instructed by Stephenson Harwood) for the bank; Hugo Page QC (instructed by Penningtons) for the judgment creditor; the judgment debtors did not appear and were not represented.

Held, allowing the appeal, that a garnishee or third party debt order was a proprietary remedy operating by way of attachment against the property of the judgment debtor, the property so attached being the chose in action representing the garnishee's or third party's debt to the judgment debtor; that it was a necessary and integral feature of that procedure that the garnishee or third party, on making payment under such an order, was discharged to the extent of his payment from his liability to the judgment debtor; and that it was not therefore open to the court to make the order in respect of a debt sited in a foreign jurisdiction which did not provide for such discharge.

(WLR)

Execution - garnishee order sought against moneys allegedly held in judgment debtors' bank account in Switzerland - order constituting enforcement in Switzerland so no jurisdiction to make order

Kuwait Oil Tanker Co SAK and another v Qabazard: HL (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough and Lord Millett): 12 June 2003

Execution was sought on moneys allegedly held in the judgment debtor's account in a Swiss bank in Switzerland.

The bank refused to disclose whether such an account existed and resisted the judgment creditors' application for a garnishee order to be made absolute on the grounds that, since any enforcement was to take place in Switzerland, exclusive jurisdiction was conferred on the Swiss courts under article 16(5) of the Lugano Convention, incorporated into English law in schedule 3C to the Civil Jurisdiction and Judgments Act 1982 (as inserted by the Civil Jurisdiction and Judgments Act 1991); and that, in any event, no order should be made since discharge pursuant to payment made under it would not affect the bank's liability in respect of a debt which was neither situated in England nor governed by English law.

The judge declined to make the order.

On the judgment creditors' appeal the Court of Appeal [2002] EWCA Civ 34; [2002] 1 All ER (Comm) 351, reversed his decision.

The bank appealed.

Laurence Rabinowitz QC (instructed by Allen & Overy) for the bank; Mark Hoyle and David Holloway (instructed by Waterson Hicks) for the judgment creditors; the judgment debtor did not appear and was not represented.

Held, that a garnishee or third party debt order was not to be characterised as a claim in personam made against the garnishee or third party in England but was the enforcement of the judgment in rem against the debt; that since the debt was sited in Switzerland, article 16(5) conferred exclusive jurisdiction on the Swiss courts; that, in any event, since the bank's debt to the judgment debtor was sited in a foreign jurisdiction governed by local law it would not be discharged by payment under the order; and therefore, it was not open to the English court to make the order sought by the judgment creditors.

(WLR)