#5048 - Haji V. Frangos - Conflict of Laws BCL

Haji v. Frangos

Facts

The first plaintiff is a Greek Cypriot shipowner of immense wealth. He holds both Cypriot and British passports. His domicile of choice is in Monaco. He spends most of his time in Greece. He has a house in London, but the judge found nothing in the evidence to suggest that he had spent significant amounts of time in England during the past few years. The second and third plaintiffs are Panamanian companies owned and controlled by the first plaintiff and managed in Greece.

Mr Frangos, the first defendant, is a much younger man. He is Greek by nationality. He is the son of a shipowner, although not an owner of the same scale of affluence as the first plaintiff, as few owners are. Mr Frangos has a house in Monaco and his personal domicile is there, but the judge concluded that his main residence and what the judge considered his major business are in Greece.

The first plaintiff has a daughter, Clelia. In January 1990 she and Mr Frangos were engaged to be married. On their engagement the first plaintiff gave the couple a yacht. The marriage was solemnised in Greece in September 1990. The Plaintiffs' statement of claim in these proceedings pleads that an agreement or understanding was made between the first plaintiff and Mr Frangos at about the time of this engagement. The agreement provided that:

(1) Mr Haji-Ioannou agreed that he would (directly or through companies he controlled) transfer sums of monies to Mr Frangos (or his agents) to be used for the purpose of acquiring vessels to be run and managed as a commercial enterprise.

(2) Mr Frangos was to hold and manage the Funds on behalf of the Plaintiffs and subject to the instructions of Mr Haji-Ioannou;

(3) The Plaintiffs were to remain the beneficial owners of the Funds (including all profits thereon and additions thereto) and Mr Frangos was to account to Mr Haji-Ioannou in respect of the Funds;

(5) By managing the Funds, Mr Frangos would, for his part, be able to develop experience and gain contacts in the shipping business.’

The marriage between Mr Frangos and his wife had by the end of 1993 broken down, and in January 1994 they separated. On 6 May 1994 the three plaintiffs addressed to Mr Frangos at the offices of his management company Seaways Shipping Enterprises Ltd (a Liberian company) in Piraeus an extra-judicial witness statement and without prejudice notice…. The notice called for the delivery to the plaintiffs of all shares, company documents and records relating to the fourth to 15th defendants inclusive and the ships which they had bought.

The writ in these proceedings was served on Mr Frangos in London when he visited to do some shopping on 7 October 1997, and before the end of that month vessels belonging to the defendants had been arrested at the suit of the plaintiffs in South Africa, England, Amsterdam and the Netherlands Antilles.

Holding

Domicile Issue

The plaintiffs contend that the first defendant does not fall within this provision, relying on the undoubted fact that his personal domicile is in Monaco, of which he has consistently described himself as a resident. Mr Frangos contends that the provision does apply to him, as a person with a special domicile in Greece.

We conclude that at the relevant time Mr Frangos enjoyed a special business domicile by virtue of art. 51 of the Greek Civil Code. Applying art. 52 of the Convention, we conclude that he was domiciled in Greece, a contracting state. He must therefore be sued there under art. 2 of the Convention.

Assuming that Mr. Frangos was not domiciled in a member-state

Whether, if proceedings are brought in England against a defendant not domiciled in another contracting state (which for present purposes we assume to be the position of Mr Frangos), the English court may on appropriate facts stay the proceedings or decline jurisdiction in favour of a clearly more appropriate forum in another contracting state (in this case, said to be Greece).

Art. 4 – not a pure convention ground: But if in a case such as the present a court such as this defers to the court of another contracting state which in its considered judgment is significantly better placed, for whatever reason, to administer true justice between the parties, such deference involves not jurisdictional imperialism or chauvinism nor any clash or competition between jurisdictions but the truest comity between courts of contracting states. While we are obliged to have regard to the guidance of Professor Schlosser, and gladly do so, it would seem that he was, as Mance J put it in Sarrio SA v Kuwait Investment Authority [1996] CLC 211 at p. 216G,

‘throughout only dealing with forum non conveniens in the context of jurisdiction exercised on what I have called pure convention grounds (under art. 2 or 3).’

Uniformity of approach and certainty of outcome are no doubt in general desirable, but it is very hard to see how these objectives can be achieved where jurisdiction is conferred by virtue of national rules under art. 4 of the Convention.

It does not, however, appear to us that the exercise of jurisdiction to stay on grounds of forum non conveniens is subversive of the convention regime, and in appropriate circumstances we consider that recognition of a power to stay or dismiss may promote that due administration of justice which must be the ultimate and paramount concern of all contracting...