State of Qatar v Al Thani

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Bailhache, Bailiff and Jurats Potter and Le Brocq:
• Judgment Date: 28 May 1999
• Date: 28 May 1999

ROYAL COURT

Bailhache, Bailiff and Jurats Potter and Le Brocq:

N.F. Journeaux for the defendant;

P.M. Livingstone for the plaintiff.

Cases cited:

(1) Beith's Trustees v. Beith, [1950] S.C. 66.

(2) Clarkin v. Att. Gen., 1991 JLR 213.

(3) de Lasala v. de Lasala, [1979] 2 All E.R. 1146; (1979), 123 Sol. Jo. 301, considered.

(4) Hall v. Att. Gen., 1996 JLR 129, followed.

(5) Knuller (Publ., Printing & Promotions) Ltd. v. D.P.P., [1973] A.C. 435; [1972] 2 All E.R. 898.

(6) Krohn G.m.b.H. v. Varna Shipyard, 1997 JLR 194, followed.

(7) Mercedes-Benz A.G. v. Leiduck, [1996] A.C. 284 ([1995] UKPC 31); [1995] 3 All E.R. 929; [1995] 2 Lloyd's Rep. 417; (1995), 139 Sol. Jo. (L.B.) 195, dicta of Lord Nicholls followed.

(8) Siskina (Cargo Owners) v. Distos Cia. Naviera S.A., [1979] A.C. 210; [1977] 3 All E.R. 803; [1978] 1 C.M.L.R. 190; (1977), 121 Sol. Jo. 744; sub nom. Ibrahim Shanker & Co. v. Distos Cia. Naviera S.A., [1978] 1 Lloyd's Rep. 1, not followed.

(9) Solvalub Ltd. v. Match Invs. Ltd., 1996 JLR 361, followed.

(10) Yachia v. Levi, Royal Ct., March 26th, 1998, unreported.

Additional cases cited by counsel:

Att. Gen. v. Hall, 1995 JLR 102.

Att. Gen. v. Weston, 1979 J.J. 141.

Australian Consol. Press v. Uren, [1969] 1 A.C. 590.

Elliott v. C (a minor), [1983] 1 W.L.R. 939.

Fatuma Binti Mohamed Bin Salim Bakhshuwen v. Mohamed Bin Salim

Bakhshuwen, [1952] A.C. 1.

Harper v. National Coal Bd., [1974] Q.B. 614.

Jones v. Social Services Secy., [1972] A.C. 944.

Lampaert, In re, 1990 JLR 290.

Noble v. Southern Ry., [1940] A.C. 583.

Ogden Indus. Pty. Ltd. v. Lucas, [1970] A.C. 113.

Paisner v. Goodrich, [1955] 2 Q.B. 353.

Qatar (State) v. Al Thani, 1996 JLR N-13.

T.A. Picot (C.I.) Ltd. v. Crills, 1995 JLR 33.

Legislation construed:

Service of Process (Jersey) Rules 1994 (R. & O. 8715), r.7(b): The relevant terms of this rule are set out at page 121, lines 34-40.

Texts cited:

Cross, Precedent in English Law, 1st ed., at 4, 8 (1961).

Matthews, Still No Black Holes: Krohn Gmbh v. Varna Shipyard, 1 Jersey Law Review 240 (1997).

Report of the Commissioners appointed to inquire into the Civil, Municipal and Ecclesiastical Laws of the Island of Jersey, together with Minutes of Evidence (Command Papers, First Series, No. 2761) (1861), Report, Pt. I, at iii.

Civil Procedure—service out of jurisdiction—injunction in aid of foreign proceedings—may order service out of jurisdiction under Service of Process (Jersey) Rules 1994, r.7(b) even if only Mareva injunction sought in Jersey in aid of foreign proceedings

Jurisprudence—precedent—applicability of English doctrine in Jersey—rigid doctrine of precedent in English law not applicable in Jersey for historical reasons—modern developments in Jersey make doctrine stronger

Courts—Royal Court—binding force of own previous decision—duty to follow unless convinced wrong

The plaintiff government sought to serve an Order of Justice on the defendant out of the jurisdiction containing a Mareva injunction restraining him from removing any of his assets from within the jurisdiction.

The defendant had been the Emir of Qatar but had been removed from office. The plaintiff commenced proceedings against him alleging that he had transferred public funds in violation of Qatari law and obtained a Mareva injunction against his assets in Jersey. Though a settlement was then reached, the defendant failed to comply with its terms and the plaintiff therefore obtained an order granting leave to serve an Order of Justice, containing a further Mareva injunction, on the defendant. The injunction was sought in aid of proceedings brought in another jurisdiction. The defendant was not resident in Jersey and could only be made amenable to the jurisdiction of the court by virtue of r.7(b) of the Service of Process (Jersey) Rules 1994.

The defendant made the present application to set aside the order, submitting that the court had no jurisdiction to grant a Mareva injunction in aid of foreign proceedings because (a) that was the construction given by English courts to the English equivalent of r.7(b) and the court should follow this precedent and not Jersey decisions which had been wrongly decided; (b) the Royal Court was not bound to follow a Jersey Court of Appeal decision recognizing the court's jurisdiction to grant a Mareva injunction in aid of proceedings overseas; and (c) a free-standing Mareva injunction was outside the scope of r.7(b).

The plaintiff submitted in reply that the court had a duty to follow previous Jersey cases which had departed from the English interpretation of r.7(b) and had held that the court had power to order service out of the jurisdiction even where the injunction was in aid of foreign proceedings.

Held, dismissing the appeal:

(1) The rigid doctrine of precedent in English law should not be applied in Jersey since (a) the original source of Jersey law was Norman law and while the influence of English law had been significant it had not changed the fundamental jurisprudence of Jersey; (b) historically, Jersey jurisprudence had more in common with France than England in that the Royal Court was once both a law-making and law-enforcing body; and (c) the mass of English case law which underpinned the English doctrine of precedent did not exist in Jersey. However, modern developments in Jersey such as the creation of the Court of Appeal and the commencement of a professional system of law reporting had increased the importance of judicial precedent in the Island (page 124, line 34 - page 126, line 10).

(2) The decisions of the Jersey Court of Appeal and the Privy Council sitting on appeal from the courts of Jersey were generally binding, though it was open to the Royal Court to decline to follow a decision which was invalidated by subsequent legislation or a compelling change of circumstances (page 126, lines 13-20).

(3) The court was not bound by the decisions of the Privy Council sitting on appeal from another jurisdiction, nor by decisions of the House of Lords. The persuasiveness of such decisions would depend upon the similarity of the law in the jurisdiction in question and social and policy considerations in Jersey. While the decisions of the Privy Council and the House of Lords should be treated with the greatest respect, the court was not bound by their interpretation of territorial jurisdiction given to the English equivalent of r.7(b) (page 126, line 37 - page 127, line 29).

(4) The court had a duty to follow a previous Royal Court decision unless convinced the decision...