X-Sender: lawf0014@sable.ox.ac.uk Date: Wed, 22 Jan 1997 14:56:48 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: restitution Polly Peck Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk 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 , 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 lionel.smith@law.ox.ac.uk http://users.ox.ac.uk/~lawf0014/lionel.html Date: Thu, 23 Jan 1997 09:04:21 +0000 (GMT) From: Paul Michalik To: restitution@maillist.ox.ac.uk Subject: Re: restitution Polly Peck - Jurisdiction in cases of title to land Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk >From what I remember of undergrad conflicts in 1992, the rule from Penn's case - that an English court adjudicating in matters of equity, operates on the conscience of the defendant ( ex hypothesi present in the jurisdition) and not so "directly" on the title to the foreign land outside the J as to infringe any principles of comity- would allow a claim lie that in Polly Peck to proceed, in spite of the title to foreign land principle from Mocambique. Paul Michalik Worcester Paul.Michalik@law.ox.ac.uk X-Sender: lawf0014@sable.ox.ac.uk Date: Thu, 23 Jan 1997 09:52:05 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: Re: restitution Polly Peck - Jurisdiction in cases of title to land Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk Paul Michalik wrote: >From what I remember of undergrad conflicts in 1992, the rule from Penn's >case > >- that an English court adjudicating in matters of equity, >operates on the conscience of the defendant ( ex hypothesi present in the >jurisdition) and not so "directly" on the title to the foreign land outside >the J as to infringe any principles of comity- > >would allow a claim lie that in Polly Peck to proceed, in spite of the >title to foreign land principle from Mocambique. I remember that rule too, although it never really made that much sense to me since we know that there are equitable proprietary rights even if they are historically sourced in conscience. See Webb v. Webb, [1991] 1 WLR 1410 (ChD), [1994] 3 WLR 901 (ECJ), noted 8 TLI 99. But this case did not rely on that rule, which I don't think would apply as the claim to the land in Cyprus was not in any way based in equity. Rather Rattee J relied on s 30(1) of the Civil Jurisdiction and Judgments Act, providing that jurisdiction is proper in a tort claim relating to immovable property outside the UK unless the proceedings are principally concerned with a question of the title or the right to possession of that property. I would have thought that these proceedings were principally so concerned. This is apparently the first case to interpret s 30(1). Lionel