Hughes v Clewley (Siben)

JurisdictionJersey
CourtRoyal Court
JudgeBailhache, Bailiff and Jurats Orchard and Gruchy:
Judgment Date25 January 1996
Date25 January 1996
ROYAL COURT
Bailhache, Bailiff and Jurats Orchard and Gruchy:

N.F. Journeaux for the plaintiff;

A.D. Hoy for the defendant.

Case cited:

(1) D'Allain v. De Gruchy (1890), 214 Ex. 196; 1889-93 T.D. 50, unreported, followed.

Additional cases cited by counsel:

Allen v. Jambo Holdings Ltd., [1980] 2 All E.R. 502.

Digital Equipment Corp. v. Darkcrest Ltd., [1984] 3 All E.R. 381.

Fletcher Sutcliffe Wild Ltd. v. Burch, [1982] F.S.R. 64.

Hoffmann La Roche (F.) & Co. A.G. v. Trade & Indus. Secy., [1975] A.C. 295.

Howard v. Press Printers Ltd. (1904), 74 L.J. Ch. 100.

Modern Transp. Co. Ltd. v. Duneric S.S. Co., [1917] 1 K.B. 370.

Talika Invs. Ltd. v. Olec Properties Ltd., 1990 JLR 200.

Tharros Shipping Co. Ltd. v. Bias Shipping Ltd., [1994] 1 Lloyds Rep. 577.

Walters v. Bingham, 1985-86 JLR 439.

Legislation construed:

Merchant Shipping Act 1894 (57 & 58 Vict., c.60), s.30:

"Each of the following courts; namely,

(a) in England or Ireland the High Court,

(b) in Scotland the Court of Session,

(c) in any British possession the court having the principal civil jurisdiction in that possession; and

(d) in the case of a port of registry established by Order in Council under this Act, the British court having the principal civil jurisdiction there,

may, if the court thinks fit (without prejudice to the exercise of any other power of the court), on the application of any interested person make an order prohibiting for a time specified any dealing with a ship or any share therein, and the court may make the order on any terms or conditions they think just, or may refuse to make the order, or may discharge the order when made, with or without costs, and generally may act in the case as the justice of the case requires; and every registrar, without being made a party to the proceeding, shall on being served with the order or an official copy thereof obey the same."

Texts cited:

Bean, Injunctions, 6th ed., at 92 (1994).

Goldrein & Wilkinson, Commercial Litigation: Pre-emptive Remedies, 2nd ed., para. 8, at 83 (1991).

Injunctionsinterlocutory injunctionundertaking in damagesnormal to require undertaking from party seeking interim injunction but if not given, may not imply ex post facto since undertaking to be given voluntarily

Injunctionsinterlocutory injunctiondischargeinjunction not necessarily wrongful if claim on which based failsdischarge not necessarily appropriate

Injunctionsinterlocutory injunctionmisrepresentation and non-disclosureinnocent party to illegal contract not necessarily precluded from obtaining interim injunction preventing dealing with subject-matter merely because fails to disclose illegal consideration provided by other party

The plaintiff obtained an order under s.30 of the Merchant Shipping Act 1894 prohibiting any dealing with a ship.

The plaintiff transferred ownership of a ship to the defendant partly in return for a business and business premises allegedly owned by the defendant. The plaintiff later became aware that the business included an escort agency providing prostitution services to customers and that the defendant did not own the premises. The plaintiff alleged that he had entered into the contract on reliance on material misrepresentations by the defendant.

The plaintiff subsequently brought actions in England and Jersey for breach of contract and fraudulent misrepresentation and in Jersey his Order of Justice included an interim injunction which operated as an order under s.30 of the Merchant Shipping Act 1894 prohibiting any dealing with the ship. The injunction was later discharged by the Royal Court (Le Cras, Lieutenant Bailiff and Jurats Herbert and Rumfitt) in proceedings noted at 1993 JLR N-10 but on appeal, the Court of Appeal (Le Quesne, Lord Carlisle of Bucklow and Frossard, JJ.A.) reinstated it (in proceedings reported at 1994 JLR 227) on the ground that since the plaintiff claimed still to own the ship and to be entitled to rescind the contract, he was an "interested person" under s.30.

In England, the High Court refused to order that the contract be rescinded since it offended public morals, being concerned with a business involving prostitution; accordingly the court would not make an order which had the effect of transferring ownership in an illegal business. However, the court allowed the plaintiff's claim for damages on the ground of fraudulent misrepresentation by the defendant.

The defendant then made the present application to the Royal Court to discharge the injunction and for an order that the plaintiff pay damages for having wrongfully obtained it, although it appeared that the plaintiff had not at the time of obtaining his Order of Justice been asked to give an undertaking in damages. The defendant submitted that (a) since the English High Court had dismissed the plaintiff's claim to be entitled to rescission, which the Jersey Court of Appeal had held to be the basis upon which he was an "interested person," it followed that he had not been entitled to obtain the order under s.30, which should therefore be discharged; (b) the plaintiff had failed on obtaining the injunction to disclose that the contract included the transfer of an illegal business and...

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3 cases
  • Hughes v Clewley (Siben)
    • Jersey
    • Court of Appeal
    • 21 June 1994
  • Vladimir Anatolevich Chernukhin v Oleg Vladimirovich Deripaska
    • Jersey
    • Royal Court
    • 24 June 2020
    ...EWCA Civ 1802. Gee on Commercial Injunctions FG Hemisphere Associates v Democratic Republic of Congo [2010] JRC 033. Hughes v Clewley [1996] JLR 24. CT Bowring & Co (Insurance) Limited v Corsi and Partners [1994] BCC 713. Companies Act 1985. Taly v Terra Nova Ltd [1995] 1 WLR 1359 GFN SA an......
  • Arya Holdings Ltd v Minories Finance Ltd
    • Jersey
    • Court of Appeal
    • 11 July 1997
    ...Viscount,, [1981] Ch. 384; (1980), 124 Sol. Jo. 811; sub nom. Re a Debtor, ex p. Viscount, [1980] 3 All E.R. 665. (3) Hughes v. Clewley, 1996 JLR 24; on appeal, 1997 JLR N-11, considered. (4) Overseas Ins. Brokers Ltd., Re, 1966 J.J. 547, considered. (5) Picot (T.A.) (C.I.) Ltd. v. Crills, ......

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