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Case No: B3 2000 0249
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(CHANCERY DIVISION)
Mr. Justice Jacob
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21 November 2000
B e f o r e :
LORD JUSTICE KENNEDY
LORD JUSTICE POTTER
and
LORD JUSTICE JONATHAN PARKER
- - - - - - - - - - - - - - - - - - - - -
|
MR
DAVID POLLARD & ANOR.
|
Appellants
|
|
-
and -
|
|
|
MR
CHRISTOPHER ASHURST
|
Respondent
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Sebastian Prentis (instructed by Messrs Harkavys for the
Appellants)
Mr David Marks (instructed by Messrs Lita Gale for the Respondent)
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
(As Approved by the Court)
Crown Copyright ©
LORD JUSTICE JONATHAN PARKER:
INTRODUCTION
1. Mr David Pollard and his wife Mrs Mary Pollard jointly owned a property in
Portugal. On 26 October 1993 a bankruptcy order was made against Mr Pollard.
On 31 August 1994 Mr Christopher Ashurst, a licensed insolvency practitioner,
was appointed as Mr Pollard's trustee in bankruptcy ("the Trustee"). On 20
September 1999 the Trustee issued an application in the Brighton County Court
in bankruptcy, joining Mr and Mrs Pollard as respondents and seeking an order
for the sale of the Portuguese property with vacant possession, and
consequential relief. On 4 October 1999 District Judge Ley made the order
sought.
2. Mr and Mrs Pollard appealed against the District Judge's order, on the
ground that by virtue of Article 16(1) of the Convention on Jurisdiction and
the Enforcement of Judgments in Civil and Commercial Matters 1968 ("the
Convention"), which was incorporated into United Kingdom domestic law by
section 2(1) of the Civil Jurisdiction and Judgments Act 1982, the Portuguese
courts have exclusive jurisdiction to hear and determine the Trustee's
claim.
3. On 3 February 2000 Jacob J handed down judgment dismissing the appeal (his
judgment is reported at [2000] 2 All ER 772). Mr and Mrs Pollard now appeal
to this court, pursuant to permission granted by Jacob J.
4. It is common ground that nothing turns for present purposes on the fact
that the property is in joint ownership.
THE CONVENTION
5. The only Articles of the Convention which are material for present purposes
are Articles 1 and 16.
6. Article 1 provides that the Convention applies in civil and commercial
matters, subject to a number of exceptions including:
"bankruptcy, proceedings relating to the winding up of insolvent companies or
other legal persons, judicial arrangements, compositions and analogous
proceedings."
7. Article 16 is in the following terms (so far as material):
"The following courts shall have exclusive jurisdiction, regardless of
domicile:
(1)(a) in proceedings which have as their object rights in rem in immovable
property ..... , the courts of the Contracting State in which the
property is situated;
(b) [exception in relation to certain tenancies of immovable property]
(2)......
(3) in proceedings which have as their object the validity of entries in public
registers, the courts of the Contracting State in which the register is
kept;
(4) .....
(5) ....."
THE INSOLVENCY ACT 1986 ("the Act")
8. Section 283(1)(a) of the Act provides that the bankrupt's estate for
bankruptcy purposes includes:
"all property belonging to or vested in the bankrupt at the commencement of the
bankruptcy."
9. "Property" is defined in section 436 as including:
".... money, goods, things in action, land and every description of property
wherever situated ...." (Emphasis supplied.)
10. Section 306 of the Act provides as follows (so far as material):
"(1) The bankrupt's estate shall vest in the trustee immediately upon his
appointment taking effect .....
(2) Where any property which is .... comprised in the bankrupt's estate
vests in the trustee .... it shall so vest without any conveyance, assignment
or transfer."
11. Thus, under the Act Mr Pollard's joint ownership interest in the
Portuguese property formed part of his estate for bankruptcy purposes and
vested automatically in the Trustee on his appointment, without the need for
any further formalities. However, the vesting provisions of the Act plainly
cannot effect a change in the Portuguese register of title, which continues to
record Mr and Mrs Pollard as the joint owners of the property.
THE JUDGMENT OF JACOB J.
12. Two issues were raised before Jacob J. The first issue was whether (as
the Trustee contended) the proceedings were excepted from the application of
the Convention by virtue of the inclusion of "bankruptcy" among the exceptions
in Article 1. The second and more substantial issue was, as already
indicated, whether (as Mr and Mrs Pollard contended) the Portuguese courts have
exclusive jurisdiction to hear and determine the Trustee's claim. On this
second issue it was Mr and Mrs Pollard's case that Article 16(1) applies to the
proceedings, alternatively that under domestic law the English court has no
jurisdiction to make orders relating to trust property held abroad.
13. On the first issue, Jacob J held that the proceedings did not fall within
the "bankruptcy" exception in Article 1. He expressed his reasons as follows
(in para. 13 of his judgment):
"These are proceedings consequential upon the bankruptcy - not proceedings
about whether or not the debtor should be made bankrupt. The question of
bankruptcy has already been determined. Moreover, the claim is not a special
bankruptcy remedy - it is just a property claim."
14. In support of that conclusion, Jacob J cited passages from the judgment of
Rattee J in Re Hayward [1997] Ch 45 and of the European Court of Justice
in Gourdain v. Nadler (Case 133/78) [1979] ECR 733.
15. Jacob J accordingly held in favour of Mr and Mrs Pollard on the first
issue. The Trustee has served a respondent's notice in respect of the Judge's
conclusion on the first issue.
16. On the second issue, Jacob J concluded that the order for sale sought by
the Trustee purported to have effect against all the world, and as such was
precluded by Article 16(1). However, he went on to conclude, relying on the
decision of the European Court of Justice in Webb v. Webb (Case
C-294/92) [1994] QB 696, that the case did not turn on the form of the relief
sought; and that where an English trust exists over land held abroad, Article
16(1) is no bar to enforcement of that trust. On that basis, he held that
Article 16(1) did not prevent the bankrupt being compelled to complete the
Trustee's title. In paragraph 18 of his judgment he said this:
"There is no doubt that English law regards the Portuguese landholding as
vested in the trustee. To the extent that the trustee's title has not been
perfected, the bankrupt is, by English law, holding it for the trustee. So
the bankrupt can be compelled to complete the trustee's title or do any other
act in relation to the land at the trustee's direction. Any such order,
provided it is in personam, is an order which the English court can make
having, as it does, jurisdiction over the bankrupt who is domiciled here."
17. Jacob J then went on to conclude that an order in personam against
Mr and Mrs Pollard directing them to sell the Portuguese property at the best
price reasonably obtainable would not be within Article 16(1). The Judge also
canvassed the possibility of an order being made against Mr Pollard directing
him to convey the property to the Trustee (by which I take the Judge to mean an
order directing Mr Pollard to effect a transfer of the property according to
Portuguese law), commenting that if that were done the Trustee could effect his
own sale in Portugal under Portuguese law.
18. The Judge then turned to the alternative submission made on behalf of Mr
and Mrs Pollard to the effect that the court has no jurisdiction to make orders
in relation to trust property held abroad. It was submitted that although
section 14 of the Trusts of Land and Appointment of Trustees Act 1996 confers
jurisdiction on the court to regulate the performance by trustees of their
functions, the Act extends only to England and Wales (see ibid. section 27(3)).
The Judge accepted that that was self-evidently so, but concluded that it was
irrelevant. He continued:
"What the Act does not say is that the court cannot act in relation to trust
property held abroad or that similar order as can be made under the Act cannot
be made by virtue of the court's jurisdiction over property held under an
English trust."
19. Jacob J accordingly held in favour of the Trustee on the second issue, and
dismissed Mr and Mrs Pollard's appeal.
THE ARGUMENTS ON THIS APPEAL
20. In support of the appeal, Mr Prentis of counsel (for Mr and Mrs Pollard),
in an admirably clear and succinct argument, submits that the question whether
a particular right is a right in rem or a right in personam has
to be answered by reference to European law, and that it does not follow from
the fact that English law categorises a particular type of ownership interest
as an equitable interest that such an interest cannot give rise to rights in
rem. He referred us in this connection to the discussion about rights
in rem contained in the Report by Professor Peter Schlosser, Official
Journal 1979 No C59/71, paragraphs 163 to 168, and to the decision of the
European Court of Justice in Reichert v. Dresdner Bank (Case C-115/88)
[1990] ECR I-27.
21. Mr Prentis submits that in deciding whether Article 16 applies to these
proceedings the court must look at the substance of the dispute, rather than
the form of the relief sought or of the order made. He submits that in
substance the proceedings concern the ownership of immovable property in
another Contracting State, and are accordingly "proceedings which have as their
object rights in rem in immovable property" for the purposes of Article 16(1).
In support of this submission, Mr Prentis relies strongly on Re Hayward
(above), where Rattee J held that proceedings brought by a trustee in
bankruptcy seeking a declaration that the bankrupt's interest in foreign land
formed part of his estate for bankruptcy purposes were not within the
"bankruptcy" exception and were caught by Article 16(1).
22. Mr Prentis submits that the instant case is on all fours with Re
Hayward. He submits that the relief sought by the Trustee in the instant
case is in substance the same as that which was sought by the trustee in Re
Hayward, and that the fact that in the instant case it may be possible to
frame the relief in terms of an order in personam against Mr and Mrs
Pollard that they take certain steps, the effect of which will be to alter the
ownership of the property in question, should not disguise the fact that what
are at stake in the proceedings are rights of ownership: rights in rem.
23. Mr Prentis seeks to distinguish the decision of the European Court of
Justice in Webb on the footing that in that case the claimant was
seeking to establish a beneficial interest under a resulting trust, whereas in
the instant case the Trustee's beneficial interest in Mr Pollard's share in the
Portuguese property is not in issue. He submits that, in contrast to
Webb, what is in issue in the instant case is the exercise of an
established right of ownership.
24. Mr Prentis does not repeat in this court the submission which he made to
Jacob J to the effect that the English court has no jurisdiction to make orders
in relation to trust property held abroad: he accepts that such jurisdiction
exists, independently of the Trusts of Land and Appointment of Trustees Act
1996. He submits, however, that it is a jurisdiction which the court will
rarely exercise in practice, and that it should not be exercised in the instant
case.
25. As to the "bankruptcy" exception in Article 1 of the Brussels Convention,
Mr Prentis submits that Jacob J reached the right conclusion for the reasons he
gave. In support of this submission Mr Prentis relies once again on Re
Hayward.
26. In opposition to the appeal, Mr David Marks of counsel (for the Trustee)
submits that the proceedings do not in any way concern title to land, and that
the Judge correctly recognised that they concerned the declaration and
enforcement of the Trustee's rights as against Mr and Mrs Pollard, albeit in
respect of foreign land.
27. In support of the respondent's notice, Mr Marks submits that in any event
the proceedings fall within the "bankruptcy" exception in Article 1, with the
result that Article 16 does not apply to them. He submits that Rattee J in
Re Hayward gave too restrictive an interpretation to the word
"bankruptcy" in this context. He submits that on its true construction the
exception extends not merely to the proceedings which led to the making of the
bankruptcy order itself but to subsequent proceedings in the bankruptcy.
CONCLUSIONS
28. I turn first to the "bankruptcy" exception, since if the proceedings are
within that exception the question whether Article 16(1) applies does not
arise.
29. In Re Hayward Rattee J concluded, as noted earlier, that
proceedings by a trustee in bankruptcy seeking a declaration as to the
ownership of foreign land did not fall within the exception. He expressed
his conclusion in the following passage from his judgment (at p.54B-D):
"So far as the reference in article 1 of the Convention to bankruptcy is
concerned, [counsel for the trustee] forcefully and attractively argued that
the claim made by the originating application is a matter of bankruptcy,
because that claim depends essentially on the bankruptcy of the late Mr
Hayward. Only by virtue of that bankruptcy does the trustee have the claim
which he seeks to assert in the proceedings. However, the nature of the claim
made by the trustee in the proceedings, in my judgment, is not a matter of
bankruptcy in the sense that any question of bankruptcy is the principal
subject matter of the proceedings. The claim made in the proceedings is
essentially a claim by the trustee to recover from a third party .... assets
said to belong to the bankrupt's estate and, therefore, to be vested in the
trustee."
30. In my judgment Rattee J applied the correct test for determining whether
proceedings fall within the "bankruptcy" exception, viz: Is bankruptcy the
principal subject matter of the proceedings? The mere fact that the claimant
happens to be a trustee in bankruptcy cannot be sufficient, in my judgment, to
bring the proceedings within the exception.
31. Applying that test to the instant case, the conclusion follows, in my
judgment, that the proceedings are not within the exception. Accordingly the
Judge was right to conclude that the Convention applies.
32. I turn, then, to the question whether the proceedings fall within Article
16(1) as being "proceedings which have as their object rights in rem in
immovable property".
33. The concept of proceedings which have as their "object" a particular
category of right is not a concept which I find entirely easy to grasp.
Proceedings may involve a dispute as to the existence of a right; they may seek
relief by way of exercise of a right. Indeed, in one sense it can be said
that all proceedings involve legal rights of some kind. So in answering the
question whether a particular category of right is the "object" of the
proceedings for the purposes of Article 16(1) an element of judicial
interpretation of the Article is required. Fortunately, this has been
provided in a number of decisions of the European Court of Justice and in
various authoritative texts, to which I now turn.
34. In the first place, it appears clearly from the decisions of the European
Court of Justice in Gourdain v. Nadler and Reichert that the
question whether the proceedings are "proceedings which have as their object
rights in rem in immovable property" for the purposes of Article 16(1) has to
be considered in the light of Community law and in a pan-European context.
Thus in Reichert the Court said this (in paragraphs 8, 9 and 11 of the
judgment):
"First of all, it is evident that in order to ensure that the rights and
obligations arising out of the Convention for the Contracting States and for
individuals concerned are as equal and uniform as possible, an independent
definition must be given in Community law to the phrase "in proceedings which
have as their object rights in rem in immovable property", as has been
done by the Court, with regard to other grounds of exclusive jurisdiction laid
down in Article 16, in its judgment .... in .... Sanders v. Van der
Putte [1977] ECR 2383 - concept of "tenancies of immovable property" - and
.... in .... Duijnstee v. Goderbauer [1983] ECR 3663 - concept of
"proceedings concerned with the registration or validity of patents ....
Secondly, as the Court has already held, Article 16 must not be given a wider
interpretation than is required by its objective, since it results in depriving
the parties of the choice of forum which would otherwise be theirs and, in
certain cases, results in their being brought before a court which is not that
of any of them ( .... Sanders v. Van der Putte, cited above).
........
In those circumstances, Article 16(1) must be interpreted as meaning that the
exclusive jurisdiction of the Contracting State in which the property is
situated does not encompass all actions concerning rights in rem in
immovable property but only those which both come within the scope of the
Brussels Convention and are actions which seek to determine the extent,
content, ownership or possession of immovable property or the existence of
other rights in rem therein and to provide the holders of those rights with
the protection of the powers which attach to their interest." (Emphasis
supplied.)
35. In his Report, Professor Schlosser points out (at paragraph 166) that the
concept of a right in rem, as distinct from a right in personam:
".... is common to the legal systems of the original Member States,
even though the distinction does not appear everywhere with the same clarity".
36. Professor Schlosser continues:
"A right in personam can only be claimed against a particular person,
thus only the purchaser is obliged to pay the purchase price and only the
lessor of an article is obliged to permit its use.
A right in rem, on the other hand, is available against the whole world.
The most important legal consequence flowing from the nature of a right in
rem is that its owner is entitled to demand that the thing in which it
exists be given up by anyone not enjoying a prior right."
37. The rationale underlying Article 16 was identified by the European Court
of Justice in Sanders v. van der Putte (above), where the Court stated
(in paragraph 13 of the judgment):
"..... actions concerning rights in rem in immovable property are to be
judged according to the rules of the state in which the immovable property is
situated since the disputes which arise result frequently in checks,
inquiries and expert assessments which must be carried out on the spot, with
the result that the assignment of exclusive jurisdiction satisfies the need for
the proper administration of justice." (Emphasis supplied.)
38. In Webb, a father provided the funds to purchase a flat in the
South of France. The flat was transferred into the sole name of his son.
Subsequently, the father brought proceedings in England for a declaration that
the son held the flat as trustee and for an order requiring the son to execute
the documents necessary to vest legal title in the father. The son challenged
the jurisdiction of the English court on the ground that Article 16(1) applied,
so that the French courts had exclusive jurisdiction. The Judge at first
instance held that the action was not an action in rem, within the
meaning of Article 16(1). On appeal by the son, this court referred to the
European Court of Justice for a preliminary ruling on the question whether
Article 16(1) applied. The European Court of Justice held that for Article
16(1) to apply, it was not sufficient merely that a right in rem in
immovable property was involved in the action or that the action had a link
with immovable property, but that the action had to be based on a right in
rem and not on a right in personam; and that the father was seeking
only to assert rights against the son. Accordingly the Court ruled that
Article 16(1) did not apply to the father's action.
39. In his opinion in Webb, Advocate-General Darmon identified the
question on which a ruling was required in the following terms (at p.705D):
"[D]oes an action brought by a person against another person for a declaration
that the other person holds immovable property as trustee and for an order
requiring the other to execute such documents as should be required to vest the
legal ownership in the plaintiff constitute an action in rem within the
meaning of Article 16(1) of the Convention?"
40. In paragraph 11 of his opinion, the Advocate-General said this:
"Where Article 16 is concerned, it should be borne in mind that this provision
.... determines which courts are to have jurisdiction where the principal
subject matter of the claim relates to a matter mentioned therein."
41. Thus the Advocate-General equated proceedings which have "as their object"
rights in rem (see Article 16(1)) with proceedings where the "principal
subject matter" of the claim relates to rights in rem.
42. Later in his opinion, after citing Reichert, and after summarising
the opposing arguments, the Advocate-General said this (in paragraphs 27 and
28):
"The question is not an easy one and I have pondered on the correct approach to
take, for the claim of ownership undeniably underlies the claim for the
recognition of [a trust in favour of the father].
However, the approach which looks at the actual aim pursued by the
[father] is not supported by the relevant provision, by prevailing academic
opinion or by the case law of the court. The jurisdiction ratione materiae of
a court must necessarily be assessed in the light of the subject matter
of the claim, as defined in the originating application, without looking at
purpose ...."
43. In paragraph 32 of his opinion, the Advocate-General noted the requirement
of European case law for a restrictive interpretation of Article 16. In
paragraph 34 he quoted from Professor Schlosser's Report (a passage quoted
earlier in this judgment). He then turned to consider the nature of the
father's claim, concluding (in paragraph 38) that by his claim the father was
seeking to establish a right of ownership as against the son, as opposed to
asserting an existing right of ownership, and that on that analysis the claim
was based on a purely personal relationship.
44. In paragraph 46 of his opinion the Advocate-General, in a further
reference to Professor Schlosser's Report, expressed the view that:
".... only actions bearing directly on "the extent, content or ownership
of immovable property" fall within the scope of article 16(1)."
45. In paragraph 48 of his opinion the Advocate-General stated as follows:
"The dividing line [between proceedings which fall within Article 16(1) and
those which do not] therefore appears to lie between actions whose principal
subject matter is a dispute over ownership between persons who do not claim
inter se any fiduciary relationship and actions concerning a breach of
fiduciary duty which, if found to have been committed, will have effects in
rem. In such a case, the personal nature of the relations is, in my view,
the overriding factor."
46. As I read that passage, the Advocate-General is drawing a distinction
between on the one hand an action in which an existing right of ownership is
asserted against a stranger, and on the other hand an action in which one party
seeks to establish a right of ownership against the other party as having
arisen out of some personal relationship between them. In each case the
action concerns a right of ownership, but whereas in the former case the
"principal subject-matter" of the action (to use the Advocate-General's
expression) is the assertion of an established right, in the latter case the
principal subject-matter of the action is the personal relationship which is
said to give rise to the right.
47. In paragraph 62 of his opinion, the Advocate-General refers to the
rationale of Article 16, saying this:
"Finally, I would observe that the essential reason for conferring sole
jurisdiction under article 16(1), as recognised by the court in the
Reichert case, namely that the courts of the locus rei sitae are better
placed to ascertain the facts satisfactorily and to apply the rules and
practices of that locus, is irrelevant where, as in the instant case, the
principal subject matter of the dispute is the possible existence of a
fiduciary relationship between the parties."
48. In saying that the rationale of Article 16 was "irrelevant" on the facts
of that case, the Advocate-General was (as I understand him) simply making the
point that the rationale did not apply in that case since the French courts
were not in as good a position as the English courts to ascertain the relevant
facts as to the existence or otherwise of a fiduciary relationship between
father and son, nor did any question of French law and practice arise in
relation to the determination of that issue. It is plainly implicit in this
paragraph, as I read it, that he regarded the fact that the issue in the case
fell outside the rationale underlying Article 16 as a further ground for
concluding that Article 16 did not apply.
49. The Advocate-General concluded his opinion by proposing that the court
should rule that an action brought by a person against another person for a
declaration that the latter holds immovable property as trustee and for an
order requiring the latter to execute such documents as should be required to
vest the legal ownership in the plaintiff does not constitute an action in
rem within the meaning of Article 16(1).
50. In its judgment, the Court accepted the reasons and conclusion of the
Advocate-General. In paragraphs 14 to 16 of its judgment, the Court said
this:
"Article 16 confers exclusive jurisdiction in the matter of rights in
rem in immovable property on the court of the contracting state in which
the property is situated. In the light of the court's judgment in
Reichert ...., where the court had to rule on the question whether the
exclusive jurisdiction prescribed by that article applied in respect of an
action by a creditor to have a disposition of immovable property declared
ineffective as against him on the ground that it was made in fraud of his
rights by his debtor, it follows that it is not sufficient, for article 16(1)
to apply, that a right in rem in immovable property be involved in the
action or that the action have a link with immovable property: the action must
be based on a right in rem and not on a right in personam, save
in the case of the exception concerning tenancies of immovable property.
The aim of the proceedings before the national court is to obtain a declaration
that the son holds the flat for the exclusive benefit of the father and that in
that capacity he is under a duty to execute documents necessary to convey the
ownership of the flat to the father. The father does not claim that he
already enjoys rights directly relating to the property which are enforceable
against the whole world, but he seeks only to assert rights as against the son.
Consequently, his action is not an action in rem within the meaning of
article 16(1) of the Convention but an action in personam.
Nor are considerations relating to the proper administration of justice
underlying article 16(1) of the Convention applicable in this case."
51. The Court accordingly held that the action was not an action in
rem, within the meaning of Article 16(1).
52. As noted earlier, Mr Prentis seeks to distinguish Webb, on the
basis that in the instant case (and in contrast to the father in Webb)
the Trustee "already enjoys rights directly relating to the property which are
enforceable against the whole world" in that he has an indisputable beneficial
interest in the property by virtue of the operation of the Act. In my
judgment, however, the distinction which Mr Prentis seeks to draw is a false
one. Reading the judgment of the Court in Webb in context, I take the
reference to a claim based on existing rights to be a reference to proceedings
in which the claimant seeks to assert a property right which is by its nature a
right enforceable against third parties, in contrast to proceedings based on a
personal relationship between claimant and defendant.
53. In my judgment, the following factors appear from the authorities to which
I have referred as being relevant to the question whether Article 16(1) applies
in the instant case:
1. Given that its effect is to override the parties' choice of forum, Article
16 is to be given a restrictive interpretation (see Reichert).
2. The rationale underlying Article 16 is "the proper administration of
justice", on the footing that the courts of the Contracting State in which the
property is situated will be best placed to conduct any factual investigation
which may be required, and to apply local law and practice (see Sanders v.
van der Putte and paragraph 62 of the Advocate-General's opinion in
Webb, quoted earlier).
3. In considering whether Article 16(1) applies in any particular case, it is
material to have regard to whether that rationale applies: that is to say,
whether the proceedings involve a factual investigation which is best carried
out by the courts of the state in which the property is situated, and/or
questions of local law and practice are raised (see paragraph 16 of the Court's
judgment in Webb).
4. The expression "which have as their object ..." in Article 16(1) is
synonymous with "which have as their the principal subject matter...." (see
paragraph 11 of the Advocate-General's opinion in Webb).
5. "Subject matter" in this context is not to be confused with "aim" or
"purpose" (see ibid. paragraph 28).
54. Returning to the instant case, it seems plain in the first place that in
so far as the court is minded to make orders in personam along the lines
suggested by the Judge, the rationale underlying Article 16(1) can have no
application, since no issue arises as to the factual situation in Portugal, nor
do the proceedings involve any question of Portuguese law or practice. Prima
facie, therefore, there is no reason why Article 16(1) should apply.
55. In the second place, the proceedings do not seek to assert any property
right against third parties/strangers: rather, they raise personal issues as
between the Trustee on the one hand and Mr and Mrs Pollard on the other. On
that footing they are, in my judgment, on all fours with the proceedings in
Webb.
56. The fact that, as Mr Prentis submitted, the Trustee's ultimate aim or
purpose in prosecuting the proceedings is to effect a change in the ownership
of the property by achieving its sale is not material. What has to be looked
at is the subject matter of the proceedings. In the light of Webb,
the fact that the resolution of a dispute as to personal rights (rights in
personam) may impact upon property rights enforceable against third
parties/strangers (rights in rem) does not in my judgment lead to the
conclusion that the subject matter of the proceedings for the purposes of
Article 16(1) is rights in rem.
57. I turn next to Re Hayward, on which Mr Prentis places so much
reliance.
58. In Re Hayward, a villa in Minorca was purchased by two individuals
who contributed equally to the purchase price. They were registered in the
Minorcan property register as owners of the property "in indivisible halves".
One of the joint owners was subsequently made bankrupt. On his death
intestate, his widow purported to transfer his interest in the villa to the
other registered owner in satisfaction of a debt she owed him for money which
he had spent on the villa. The trustee in bankruptcy of the deceased
bankrupt applied in the County Court for a declaration that the bankrupt's
interest in the villa formed part of his estate for bankruptcy purposes. The
trustee also sought an order that the bankrupt's widow and the remaining
registered owner take steps to rectify the Minorcan property register so as to
show the trustee as owner of the deceased bankrupt's share, together with an
order for sale of the villa and the division of the net proceeds of sale
equally between the trustee and the other registered owner. The County Court
Judge struck out the proceedings on the grounds (a) that they did not fall
within the "bankruptcy" exception in Article 1 of the Brussels Convention, and
(b) that they were "proceedings which have as their object rights in rem in
immovable property" for the purposes of Article 16(1), so that the Spanish
courts had exclusive jurisdiction. As noted earlier, in dismissing the
trustee's appeal Rattee J agreed with the County Court Judge that the
proceedings fell within Article 16(1). He also held that the claim for
rectification of the Minorcan property register fell within Article 16(3)
(proceedings which have as their object the validity of entries in public
registers).
59. In my judgment, Re Hayward is distinguishable from in the instant
case in that the principal subject matter of the proceedings in Re Hayward
was the ownership of the Minorcan property. As Rattee J said (at
p.48B-C):
"The essence of the present proceedings .... was an attempt by the trustee to
establish and protect, and indeed perfect, what he alleged was his entitlement
as trustee in the bankruptcy of Mr Hayward to what had been Mr Hayward's half
share in the villa."
60. On that basis, Rattee J was correct, in my judgment, to conclude that
Article 16(1) applied. By contrast, the proceedings in the instant case do
not raise any issue as to title to land. The Trustee in the instant case is
not seeking to establish or protect, let alone perfect, his title to Mr
Pollard's interest in the Portuguese property. I therefore conclude that Mr
Prentis cannot gain any assistance from Re Hayward in the instant case.
61. Accordingly, for the reasons I have given I conclude that the proceedings
in the instant case do not fall within Article 16(1).
62. I turn, lastly, to Mr Prentis' alternative submission that the English
court will rarely exercise its jurisdiction (the existence of which is now
accepted) to make orders relating to trust property abroad, and that it should
not exercise that jurisdiction in the instant case. In oral argument, Mr
Prentis did not elaborate on this submission, which should in my judgment be
rejected. Whether the English court in any particular case will consider it
appropriate to make an order relating to trust property abroad will depend on
the nature of the order sought and on the facts of the case. In the instant
case, the orders which the court is minded to make require steps to be taken
within the jurisdiction by a trustee who is himself within the jurisdiction.
That being so, I can see no jurisdictional or other objection to the making of
those orders.
63. I accordingly conclude that the Portuguese courts do not have exclusive
jurisdiction in relation to the proceedings in the instant case.
64. For those reasons, I would dismiss this appeal.
Lord Justice Potter
65. I agree.
Lord Justice Kennedy
66. I also agree.
Order: Appeal dismissed with costs to be assessed if not agreed.
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