2. There will be cases where� the urgency ency is too great to permit up to
24 hours' delay. Such applications should
be dealt with in one or another of
the three following ways. (1) The applicant's advisers � shall lodge � the
papers
listed in paragraph 1(1) and also a certificate signed by counsel (or
solicitor if counsel is not instructed) that the application
is of extreme
urgency. The application will be heard by the judge in chambers
.......................... (2) �(3) In
the very rare case where the
application is of such urgency as to preclude either of the foregoing
procedures the applicant's
advisers may give notice to the Registrar or
clerk to the judge in chambers and the judge in chambers will hear the
application
at once, interrupting his list if necessary. In such a case the
applicant's counsel or solicitor must be prepared to justify
taking this
exceptional course.
3. (1) Attention is drawn to the the provisions of R.S.C., Ord. 29, r.1(our
Order .53 r.7) which ordinarily requires the issue of a writ or
originating summons and the swearing of an affidavit in support of an ex
parte application for an injunction before it is made. (2) The affidavit
in support should contain a clear and concise statement:
(a) of the facts.
giving rise to the claim against the Defendant
in the proceedings; (b) of the facts giving rise to the claim for
interlocutory relief; (c) of the facts relied on as
justifying the
application ex parte, including details of any notice given to the
defendant or, if none has been given, the reasons for giving none; (d) of
any answer asserted by the Defendant (or which he is thought likely to
assert) either to the claim in the action or to the
claim for interlocutory
relief; (e) of any facts known to the applicant which might lead the court
not to grant relief
ex parte; (f) of the precise relief sought. (3)
Applicants for ex parte relief should prepare and lodge with the
papers relating to the application a draft minute of the order sought. Such
minute should specify the precise relief which the court is asked to grant.
While the undertakings required of an applicant
will vary widely from case
to case, he will usually be required: (a) to give an undertaking in damages;
(b) to notify
the defendant of the terms of the order forthwith, by cable or
telex if he is abroad; (c) in an application of Mareva type,
to pay the reasonable costs and expenses incurred in complying with the
order by any third party to whom notice of the
order is given; (d) in the
exceptional case where proceedings have not been issued, to issue the same
forthwith; (e)
in the exceptional case where a draft affidavit has not been
sworn, or where the facts have been placed before the court orally,
to
procure the swearing of the affidavit or the verification on affidavit of
the facts outlined orally to the court.
p class="Mss="MsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
The order shou a
general
rule contain provision for the defendant to apply on notice for discharge or
variation of the order and for costs to
be reserved.
Ex Parte Applications Generally:
Apart from the rules of practice about making of application ex parte
in interlocutory issues, there are several rules in the High Court (Civil
Procedure) Rules and in case laws about making
application to court ex
parte generally. There is, however, no specific rule which conveniently
enumerates all occasions on which application may be made
ex parte. I
attempt to enumerate here some of the occasions on which applications may be
made ex parte; they are:
1. When under a specific rule in the Rules of Court or statuteatute, application
is authorised to be made ex parte - most applications of this kind
would be in the preliminary steps such as, in application for leave, to
issue writ of
summons and have it served outside jurisdiction, for
substituted service, to renew writ of summons, to apply for orders of
mandamus, prohibition and certiorari, and in application to appoint
guardian ad litem.
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
2. When the applicanthe only person interested ited in the subject matter
that requires court order, for example, change
of one's name (in some
countries).
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
3. When immediate tery relief is essential as a as a matter of urgency
because delay arising from service will occasion
prejudice, or service on
the respondent will defeat the very purpose of the application because
notice will alert the
respondent and may precipitate the very harm the
applicant wishes to forestall, for example, the danger that the respondent
may skip the country or transfer away money or other assets if notice is
given to him. This is the occasion on which
urgent interlocutory application
for injunctive order may be made ex parte.
4. Where there has been true impossibility of giving notice - Bates v.
Lord Hailsham of St Marylebone [1972] 3 All ER 1019. (The case also
emphasises the need for acting promptly).
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The ex parte application made in circumstances in 3 and 4 must be
made promptly, on strong ground and the applicant is under duty to disclose
all facts known to him including facts that are adverse to his interest. A
case on the point is R v. Kensington Income Tax Commissioners
[1917] 1 KB 486 CA. In the case, appeal of a Frenchwoman against
discharge of restraining order granted ex parte was dismissed because
she did not disclose fully all the information about her residential status,
especially the fact
that she and her brother rented a flat in London and
shared expenses. Moreover, should the defendant or anybody interested
in the
subject matter get wind of the application and wish to oppose the
application, he may apply for leave to be heard
during the hearing of the
ex parte application. The application for leave to be heard is usually
successful because the defendant will have had notice of the application
anyway, and in any case, an order granted ex parte is a temporary one
to last for only a short time until inter partes hearing. The purpose
of ex parte application for injunctive order is to forestall loss to
the applicant or to avoid prejudice while the applicant proceeds with
his
substantive case to final determination, it is not the purpose, to deny the
respondent hearing and put the applicant
at undue advantage in the conduct
of his case over the respondent, although often times the applicant gains
advantage
in that the injunctive order may shift the urgent need for speedy
conclusion of the case onto the respondent. The order may
even make
negotiation an attractive alternative to the respondent. All those
advantages are incidental and not the purpose.
I
mentioned earlier that I noticed teveral material documents ants and papers
were missing in Mr. Elima's application;
it led to difficulties during the
first occasion of hearing. Several relevant points could not be clarified;
the court
could not properly assess the strength of the applicant's
substantive case, the nature and extent of damage likely to arise
to the
respondent from the interim injunctive order applied for, and even whether
the application could be made ex parte. I was minded to
dismiss the application outright, but chose to adjourn to give the applicant
time to file the missing material
papers.
Adjourned Hearing, Ex Parte Application Granted:
The applicant returned to court the next day, 21.7.1having included in
th the case papers, a copy of the contract of
18.9.1998, unsigned writ
of summons, copies of bills of lading and some letters. This second time, I
was satisfied that on the face
of the case papers assembled, a case was made
for an urgent application and for it to be made ex parte. The issuing
of bill of lading was particularly strong persuasion that the departure of
the M.V. Sirena 1 was imminent
despite the views of the landowning sellers.
I was also satisfied that serious issue in support of the claim of the
applicant
was sufficiently disclosed to warrant trial and final
determination. I granted interim order on the ex parte application
that day, 21.7.1998. The main term of the order was an injunction
restraining the defendant from removing
timber logs loaded on the M.V.
Sirena 1, from Solomon Islands, unless the respondent deposited the sum of
US$77,000 in
court. The order was to last until 18.8.1998 when there would
be inter partes hearing, but the respondent was at liberty to
anticipate that return date and could be heard earlier, provided it gave 24
hours notice to the applicant and court. Learned Counsel Mr. P. Tegavota,
for the respondent, took advantage, he gave notice
and asked to be heard
seven days later on 30.7.1998.
On 30.7.1998 an extraordinary application was made by Mr. Watts. His
application was for adjournment to enable him to
gather more information to
meet the respondent's case. As far as I know, it is for an applicant for
interim injunction
order or other interim order conferring advantage,
especially if he makes his application ex parte, to provide full
information right from the beginning. A respondent or any other person
against whom an order has been
obtained by ex parte application has
the right to be heard equally urgently should he wish. The matters raised by
the respondent were not new
matters at all, the applicant would have had
copies of the relevant documents that the respondent produced. Mr. Watts'
application for adjournment was one to be refused, but as it was well late
in the day, I adjourned it to the next day. The
inter partes hearing
took place the next day, Friday 31 July 1998.
Inter Partesing: Orders Applied for:.
The orders that the aant sought are muddled up. Some are repetitive and
mo most of them are not available at interlocutory
stage. I would have liked to
quote the entire application here, but for the little time available to have
this urgent
judgment in urgent application delivered. Order that the
respondent pay the contract sum to the applicant/plaintiff, and that
the
respondent be compelled to perform duties under the contract, are not
available at this interlocutory stage. Muddled
as the orders sought may be,
the application could be understood as seeking order to have the respondent
pay the sum
claimed as commission into court or the timber logs bought by
the respondent be attached because the respondent has no assets
in Solomon
Islands and the respondent is an off - shore company with no office in
Solomon Islands. That is the gist of
what the applicant stated in paragraph
one line 2 to 6 as read with proposed order 4 of his application. Mr.
Tegavota
of course noticed the muddle in the application, he successfully
attacked several of the orders applied for.
Serious Issues: The Substantive Case:
From the papers assembled, the court could ascertain that the applicant has
two claims against the respondent for commission
arising from a contract
dated 18.9.1997. Under the contract the applicant was appointed agent of the
respondent to secure
timber logs for purchase by the respondent. The
applicant was to be paid commission of US$20 per cubic metre of logs bought.
He deposed that he secured 5,236.41 cubic metres of logs which the
respondent has bought and shipped away already. The
applicant has been paid
US$27,500 as commission for the 5,236.41 cubic metres and is still owed some
money as commission.
The applicant also deposed that he has again secured
3,100 cubic metres of logs, he has not been paid commission for them.
The
respondent has now loaded the logs on the M.V. Sirena I ready to leave
Solomon Islands in 24 hours. Bill of lading
and clearance papers are now
available, and Ports Authority will only stop the M.V. Sirena 1 if court
order is served
on it. The applicant claimed commission of US$20 per cubic
metres of logs less US$27,500 paid.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
During theing the respondent admitted the contract of 18.9.1997, but but
said that the rate of commission was varied
to US$10 per cubic metre of
logs. Applicant conceded thereby descended from his claim of US$20 to US$10
per cubic metre.
It follows therefore that the claim of the applicant for
the first purchase of 5,236.4 cubic metres would be US$52,364.10,
not
US$77,228.20 as claimed. The respondent said that it has paid US$30,500 to
the applicant and not US$27,500 as stated
by the applicant. Even so, the
applicant would still be owed US$21,864.10 which he may claim. The evidence
so far, of
course subject to further pleadings and hearing, shows that the
applicant has a serious case with prospect of success, for
the sum of
US$21,864.10 arising from the first purchase.
e second claim will now be for commission on 3,100 cubic meic metres at US$10
per cubic metre, which is US$31,000. The respondent
has attacked the claim
on the ground that it is not yet payable because according to the contract
of 18.9.1997, the sum
becomes payable only when the logs have been,
"actually shipped out or exported � and payable after each shipment".
The
respondent, contends that the logs on the M.V. Sirena 1 have not yet been
exported and so commission for their purchase
is not yet due. The second
contention of the respondent, which contention applied to the second as well
as the first
claim, was that the contract required that purchase documents
be signed by the buyer, the sellers and the applicant, and that
the sellers
have not signed papers acknowledging sale by arrangement of the applicant.
The applicant has replied to the
first contention by stating that bill of
lading has already been issued and that customs and ports authorities are
now
willing to let the M.V. Sirena 1 sail off. I think that is enough to
establish serious triable issue which is merely an arguable
case with
prospect to succeed. The reply to the second contention was that the
suppliers have made notes and signed on
some of the papers, acknowledging
the part done by the applicant. Again I think that is sufficient for
establishing serious
triable issue at this stage. In my view, both arguments
of Mr. Tegavota are appropriate at the stage of final hearing, when
full
pleadings and evidence will have been made available. The applicant has, for
the purpose of interlocutory injunction
order, established serious triable
issue in the claim for commission for the sale of the 3,100 cubic metres, as
well.
Mravota's next important submission was a technical one basedbased on sound
logic of an experienced advocate. He reasoned
that the purpose of
interlocutory injunction over a subject matter is to preserve the status quo
in the case while the
case proceeds to final determination. He submitted
that in this case, the timber logs are not the subject of the case between
the applicant/plaintiff and respondent/defendant. The case is about
commission and that is the subject, matter, which
could be the subject of
injunction, not the timber logs. Short answers to Mr. Tegavota's well
thought out submission
are in Order.53 rr.2 and 6 which state:
ass="MsoBoMsoBodyText" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
2. (A) If the defendant in any action for an amor
value of ten pounds or upwards, with the intent to t to obstruct or delay
the
execution of any judgment that may be passed against him, is about to
dispose of his property, or any part thereof,
or to remove any such property
from Solomon Islands or from the jurisdiction of the Court, the plaintiff
may apply to
the Court, either at the time of the institution of the action,
or at any time thereafter until final judgment, to call upon
the defendant
to furnish sufficient security to fulfil any judgment that may be made
against him in the action, and on
his failing to give such security, to
direct that any property, movable or immovable, belonging to the defendant
shall
be attached until the further order of the Court.
<
3. ..................
4. ..................
5. ..................
p class="Mss="MsoBodyTextIndent2" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
6. (1) The Court may grant a mandamus or an injunction
or appoint a receiver by an interlocutory order in all cases in which
it
appears to the Court to be just or convenient so to do.
(2) Any such order may be made either unconditionally
or on such terms or conditions as the Court thinks just.
The provisions of those two rules authorise attachmr restraining orders
over property not necessarily being subject
matter of the case.
Long answers to Mr. Tegavota's submission are found in case case laws. It has
been accepted for some time that in the
English Common Law jurisdictions it
was never the practice to seize assets of a defendant or restrain disposal
of them
or restrict their use before judgment had been obtained against the
defendant - see Lister & Co v. Shubbs [1890] UKLawRpCh 73; [1890] 45 Ch D 1 or [1886 -
90] AUE Rep. 797. (There was an old practice of attaching assets of
someone who left England and remained outside, but the practice seemed to
have faded into disuse until recently - see Bohun�s book, Privilegia Londini,
3rd Edition 1723 at page 253). The generally accepted
position gradually became modified. By 1975, in the case of
Nippon Yusen Kaisha v. Karageorgis and Another
[1979] 3 All ER 282 at page 283,
Lord Denning was able to say this:
"We
are told that an injunction of this kind kind has never been done before. It has
never been the practice of the English
courts to seize assets of a defendant
in advance of judgment, or to restrain the disposal of them. We were told
that
Chapman J in chambers recently refused such an application. In this
case also Donaldson J refused. We know, of course, that
the practice on the
continent of
Europe is different.
It seems to me that the time has come when we should
revise our practice. There here is no reason why the High Court or this
court
should not make an order such as is asked for here. It is warranted by S45
of the Supreme Court of Judicature (Consolidation)
Act 1925 which says the
High Court may grant a mandamus or injunction or appoint a receiver by an
interlocutory order
in all cases in which it appears to the court to be just
or convenient so to do. It seems to me that this is just such a case.
There
is a strong prima facie case that the hire is owing and unpaid. If an
injunction is not granted, these moneys may
be removed out of the
jurisdiction and the ship - owners will have the greatest difficulty in
recovering anything.
���������������.
It seems to me plain that the injunction should be
continued on this ex parte application and should be continued until after
judgment in these proceedings, to restrain the defendants from disposing of
their assets here.�
Lord Denning stated so in a judgment on appeal againsusal to appoint a
rec receiver or continue injunction granted ex parte, restraining removal
of funds in bank account. The respondents/defendants were charterers of
ships. They owed large sums,
and had left their address in England. The
plaintiffs/applicants had very strong case that hire moneys were owed and
had evidence that there were funds in the bank accounts of the charterers.
The appeal was allowed and the injunction was continued.
After Nippon
case came Mareva Compania Naviera SA -v- International Bulk
Carriers Ltd [1975] 2 Lloyd's Rep 509, the Mareva. In the case, the
injunction against the charters was also granted on ex parte
application, based on a strong case and the fact that the plaintiff's
judgment would most likely not be satisfied. On
appeal, S45(1) of the
Supreme Court of Judicature (Consolidation) Act 1925 of England was
confirmed to be the authority
for the order. Then came the two most
important English cases on the point, the Rasu Maritime SA v.
Partamina [1997] 3 All E R 324, and the Third Chandris Shipping
Corporation and others v. Unimarine SA, The Pythia, The Angelic Wings, The
Genie [1979] 2 All ER 927. The cases reaffirmed the Mareva
injunction, and changed the rule that it would be granted only on a strong
case, made
by the applicant/plaintiff, to simply an arguable case. The cases
established that the applicant/plaintiff needed not show
a very strong case,
an arguable case was good enough and that the existence of bank account was
enough proof of funds,
the applicant needed not prove credit balance on the
account to prove the existence of property within the jurisdiction to
satisfy the granting of Mareva injunction. Note these words of Lord Denning
in the Third Chandris case; at page 983 he stated:
"It
is just four years ago now since we introdntroduced here the procedure known
as the Mareva injunctions. All the other legal systems of the world have
a similar procedure. It is called �saisie conservatoir�.
It has been
welcomed in the City of
London and has proved extremely beneficial. It enables a creditor in a
proper case to stop his debtor from parting with
his assets pending trial".
Attachment Pending Trial in Other SystemLaw:
>
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Apart from the saisie conservatoir dure in the French system
tem
that Mustill J. and Lord Denning referred to in the Third Chandris
case, the laws to deal with evasive defendant or one likely to be
evasive is very well established in other systems of law.
Property may be
attached to found or confirm jurisdiction if the defendant has no other
assets within the jurisdiction
and is likely to remove the property from the
jurisdiction. The laws are expressed in the Latin expressions, attachment,
ad fundandam jurisdictionem, meaning attachment to found
jurisdiction, and attachment, ad confirmandam jurisdictionem, meaning
attachment to confirm jurisdiction. A judgment debtor or a defendant about
to flee the jurisdiction may also be
arrested and asked to provide security
for the judgment debt or expected judgment. Arrest of a judgment debtor is
usually
provided for in the Rules about execution following judgment. The
law of arrest of an evasive debtor intending to leave jurisdiction
permanently is expressed in the Latin phrase, arrest suspectus de fuga.
Those are of course not yet the law in Solomon Islands.
cation Succeeds in Parts:
As I said earlier, paf the application of the plaintiff are for orders
tha that may be granted under Order.53 rr.2 and
or 6. He asked in the first
paragraph and at 4, that the M.V. Sirena 1 and its cargo of timber logs "be
taken into
custody until the defendant pays the sums claimed. �� The mistake
is that he asked that the payment be made to him straight
away. Solicitor
for the plaintiff obviously did not consider the fact that the plaintiff has
not yet succeeded in the
substantive case. As the applicant has also asked
for, "such further orders as this Honourable Court deems just",
I shall
grant his application for orders consistent with the reliefs he sought in
the first paragraph and at 4 of his
application. The modification that I
introduce is that a sum of money equal to the totals of the two claims to
the extent
determined above, be paid into court as security, otherwise the
timber logs now on the M.V. Sirena 1 are to be attached. The
rest of the
orders sought are misconceived, the application, in as far as it asks for
those orders, is dismissed.
Usually costs are reserved at this stage, but I have decided otherwise for
these reasons: Costs of the adjournment of
30.7.1998 is ordered against the
applicant because he should have been ready with his application right from
the start.
The rest of the costs are ordered against the respondents because
even during the inter partes hearing, the respondent did not make any
effort to show that he would make assets available in Solomon Islands and he
did not show that he has or intends to have business address in Solomon
Islands. Its directors are said to have given instruction
to solicitor on
telephone. I got the impression that even when the respondent has been
brought to court, it still would
like to keep its address secret and its
property out of the reach of Solomon Islands courts.
Court Order Granted.
In summary the application of Mr. Percy Elima succeeds i following
orders:
e respondent/defendant Ever Everbright Commercial Enterprises Pty Ltd, is to
provide security in the sum of US$52,864.10,
to be deposited with the
Registrar to await the outcome of the main case.
2. The timber logs now on the M.V. M.V. Sirena 1 due to sail away are attached,
but may be released without further order
of court if the
respondent/defendant deposits the sum of US$52,864.10 into court.
3. order is to fast until the the substantive case is concluded or until
further order of court.
ass="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
4. Costs of the adjournment on 30.7.98 is granted against the
applicant/plaintiff in favour of the respondent/defendant.
The rest of the
costs of this application are granted to the applicant/plaintiff against the
respondent/defendant.
Dated this Monday 3rd day of August 1998>
At the High Court
Honiara
Sam Lungole - Awich
JUDGE
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