A fraud was alleged by the defendant against the arms manufacturer Ferranti.
Hoffman J said: ‘The question [on an application under Ord. 12 r. 8(1)(c) to discharge an order giving leave to serve a writ out of the jurisdiction] is . . whether that order was rightly made at the time it was made. Of course the Court can receive evidence which was not before the [Court when the order was made] and subsequent events may throw light upon what should have been relevant considerations at the time. But I do not think that leave which was rightly given should be discharged simply because circumstances have changed. That would mean that different answers could be given depending upon how long it took before the application came on to be heard.’ and
‘Mr Crystal said I should look at the position today. An application under RSC, O12, r8 is a rehearing of the application to the Master and the exercise of a fresh discretion. It should therefore take into account whatever has since happened. I do not agree. The application is under RSC, O12, r8(1)(c) to discharge the Master’s order giving leave to serve out. The question is therefore whether that order was rightly made at the time it was made. Of course the Court can receive evidence which was not before the Master and subsequent events may throw light upon what should have been relevant considerations at the time. But I do not think that leave which was rightly given should be discharged simply because circumstances have changed. That would mean that different answers could be given depending upon how long it took before the application came on to be heard. The position is quite different when the application is for a stay on the grounds of forum non conveniens. In such a case, the appropriate time to consider the matter is the date of the hearing.’
Judges:
Hoffman J
Citations:
[1992] 2 Lloyd’s Rep 430
Cited by:
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 01 May 2022; Ref: scu.245210
