Restitution Discussion Group Archives
| Sender: |
Lionel Smith |
| Date: |
Wed, 22 Jan 1997 14:56:48 +0000 |
| Re: |
Polly Peck |
Greetings to all,
Re Polly
Peck is now available from the list. Thanks to Peter Birks for
the transcript and to the Tutors' Secretary for scanning it.
The case involves an application to begin proceedings
against a company in administration (ie Polly Peck). The judge had to
be satisfied that there was a seriously arguable case being put forward.
The essence of the claim was an argument that PP's subsidiaries
trespassed on land in Northern Cyprus belonging to the plaintiffs. The
background of course is that the subs were occupying the land pursuant
to "expropriation" by the Turkish Republic of Northern Cyprus, which has
not been recognized by any state except Turkey. PP profited on the sale
of its shares in the subs. The argument now was that the profits were
held on constructive trust for the plaintiffs. The wrong alleged to have
been committed by PP was in the nature of encouraging or procuring the
trespass.
Of course there is a jurisdictional issue deriving from
the Mocambique rule (no adjudication of title to foreign land).
Rattee J allowed the application. The decision it is
seriously arguable that the English courts would have jurisdiction seems
questionable to me, and I would be interested to know what someone who
(unlike me) actually has a clue about conflicts thinks about this. The
stuff about the claim itself is all very interesting too, weakened of
course by the fact that all Rattee J had to do was decide whether there
was a seriously arguable case. But he thought it was seriously arguable
that a remedial constructive trust could be established in an English
court as a way of securing the disgorgement of such a gain, even though
he rejected any argument that there was a fiduciary relationship.
If you want your very own copy, send an email to ‹majordomo@maillist.ox.ac.uk›,
leave the subject blank, and in the body of the message put
get restitution polly.txt
Cheers,
Lionel
Lionel Smith
St. Hugh's College
Oxford, U.K.
OX2 6LE
Tel (0)1865 274 966; Fax (0)1865 274 912
http://users.ox.ac.uk/~lawf0014/lionel.html
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