17. Introduzione. Motivazione francese e motivazione inglese a confronto.
A differenza della sentenza francese, quella inglese contiene spesso un ragionamento lungo e completo. Essa non consiste semplicemente nella presentazione di conclusioni di diritto, ma comprende anche un resoconto integrale dell’iter logico attraverso il quale il giudice perviene alle sue conclusioni. Sul punto la dottrina d’Oltre Manica sottolinea come lo stile «secco» e sillogistico della motivazione francese, se s’attaglia alla soluzione di casi semplici, mal s’adatta alla soluzione dei casi complessi, che costituiscono la quasi totalità del contenzioso: «Come sanno tutti i giuristi, i veri problemi cominciano, o quando il diritto non è chiaro, o quando i fatti non sono chiari, o quando l’applicazione del diritto ai fatti solleva particolari problemi di misura. In queste circostanze le persone di buon senso (ed i giudici di buon senso) possono trovarsi in disaccordo sul modo in cui il caso vada deciso e diventa importante capire almeno qualcosa del processo di ragionamento, attraverso cui i giudici pervengono alle loro conclusioni» .
Ma ciò che forse colpisce maggiormente il giurista di formazione continentale è lo stile nel quale la motivazione è espressa. Se vi è qualcosa in comune da questa parte della Manica nel modo di motivare le sentenze (e il discorso, una volta tanto, vale sia per la Francia, che per la Germania, che per l’Italia) è uno stile «burocratico», in cui l’astrazione concettuale s’accompagna al tecnicismo giuridico per marcare – nell’ambito di un argomentare esclusivamente rivolto agli «addetti ai lavori» – una scarsa considerazione (che talora si volge in sovrano disprezzo) per i fatti di causa. Lo stile inglese, al contrario, sembra assai più colloquiale ed informale. La principale preoccupazione del giudice d’Oltre Manica sembra invero quella di convincere le parti (le parti personalmente, verrebbe da dire, e non tanto i loro difensori) della bontà del proprio punto di vista. Sul punto si potrà fare rinvio alle considerazioni di Taruffo, che pone in luce questa chiara diversità di prospettiva .
Non solo: non vi è dubbio che il linguaggio impiegato da un giudice di common law favorisce la comprensione della ratio decidendi anche da parte di chi si collochi in ambienti culturali assai diversi. Osserva, ad esempio, Marinari, che «Quando parla della motivazione di una sentenza e dei suoi requisiti (…) un giurista inglese parla un linguaggio certamente comprensibile anche ad un giurista italiano o francese, a prescindere dal grado di conoscenza specifica che ciascuno di loro abbia dei rispettivi ordinamenti» . Questa osservazione sembra valere, assai sovente, con riguardo a molte delle materie trattate dalle decisioni d’oltre Manica o d’oltre Oceano.
La progressiva caduta delle barriere linguistiche e l’ausilio dei moderni strumenti dell’informatica favoriscono la comparazione tra gli ordinamenti e inducono sempre più sovente i giuristi delle due rive della Manica ad interrogarsi e confrontarsi sulle profonde differenze dei propri sistemi. Così l’inaugurazione, alcuni anni fa, di una banca dati elettronica, in lingua inglese, di materiale giurisprudenziale francese (e, segnatamente, di una serie di pronunce della Cour de cassation) a cura dell’Institute of Global Law dell’University College di Londra  ha fornito l’occasione per alcune stimolanti riflessioni sul tema .
Come rimarcato, in quella sede, dall’allora Lord Chancellor del Regno Unito, «The jurisprudence of the French courts presents a challenging experience for those who have grown up with the idiom of the common law. In particular, the common lawyer looking into a French report will need time to familiarise himself with the context of the judgment, as the plurality of jurisdictions between the Conseil constitutionnel, Cour de cassation and Conseil d’État and the profound institutional differences between these jurisdictions is a feature which is largely unknown to the common law» .
striking feature has to be the
style of French judicial reasoning. The language of a common law judge is pragmatic,
reflecting a judicial activity of assessing historical rulings to find the
principles which will decide the case. In comparison, the
decision-making process in
A well-known illustration of this process is the law of delict. Both Britain and France have highly developed principles governing liability for negligent acts, but while the basic norms of the French law derive from Articles 1382 to 1386 of the Code Civil, the foundation of English law is Lord Atkin’s famous statement in the 1932 case of Donoghue v Stevenson that:
‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’
In the circumstances it is hardly surprising to find a difference between the styles of reasoning of the courts which are required to apply the principles of liability for harm. When deciding a novel case in negligence the British House of Lords must necessarily begin with previous authority – based on Donoghue v Stevenson – to see whether liability has ever been imposed in a similar situation before. The judge must then embark upon a journey of reasoning which draws out principles from the earlier cases imposing liability and decides whether they are relevant to the present facts. As Lord Hoffmann recently said:
‘The [House of Lords] approaches the question … starting with situations in which a duty has been held to exist and then asking whether there are considerations of analogy, policy, fairness and justice for extending it to cover a new situation… The trend of authorities has been to discourage the assumption that anyone who suffers loss is prima facie entitled to compensation from a person … whose act or omission can be said to have caused it. The default position is that he is not.’
The role of the Cour de cassation is very different. Its judges are not required to reason from past authority but rather from the terms of the Code Civil itself, and this requires a very different analytical process. In the celebrated arrêt Jand’heur the Cour de cassation formulated a remarkable branch of jurisprudence: the liability for ‘les actes des choses’ based on Article 1384 of the Code Civil. The judgment does not in any way reflect the historical approach of the British courts, but starts from an analytical interpretation of Article 1384 as the foundation for liability:
‘Attendu que la présomption de responsabilité établie par cet article à l’encontre de celui qui a sous sa garde la chose inanimée qui a causé un dommage à autrui ne peut être détruite que par la preuve d’un cas fortuit ou de force majeure ou d’une cause étrangère qui ne lui soit pas imputable … … attendu que la loi, pour l’application de la présomption qu’elle édicte, ne distingue pas suivant que la chose qui a causé le dommage était ou non actionnée par la main de l’homme ; qu’il n’est pas nécessaire qu’elle ait un vice inhérent à sa nature et susceptible de causer le dommage, l’article 1384 rattachant la responsabilité à la garde de la chose, non à la chose elle-même… Par ces motifs, CASSE.’
This short and analytical style of judicial reasoning, so very different from the approach of the common law, can often complicate the process of comparison between legal systems. However, the problem is not an insurmountable one (…). So now that British and French lawyers have greater facilities than ever before with which to investigate their mutual jurisprudence, there is surely a great deal which lawyers on both sides of the Channel can learn from their common experience» .
Riflettendo sulle osservazioni sopra riportate, si sarebbe tentati di dire che, proprio per via del noto principio dello stare decisis, nei sistemi di common law l’osservanza del precedente viene a svolgere un ruolo lato sensu simile a quello che nell’Europa continentale è legato all’applicazione delle regole codicistiche .
La più autorevole dottrina ha peraltro rimarcato che i giudici inglesi generalmente non spingono il loro ragionamento al di là della frontiera che separa il diritto scritto dal common law. Essi non deducono principi generali dalle leggi per poi applicarli a situazioni non espressamente previste dalla legge stessa e, di solito, non utilizzano le leggi in maniera analogica, cosicché ne possano derivare principi di common law. Essi non usano neanche le leggi come fonte di valori e giudizi attuali sull’equità e la giustizia quando sono essi stessi costretti a sviluppare il common law. Ne consegue che il metodo di ragionamento nella sentenza di un giudice inglese cambia in modo drammatico quando la corte passa dal problema di common law a quello del diritto scritto .
In realtà, conoscendo i poteri che gli statutes conferiscono ai giudici, sia sotto il profilo sostanziale , che sotto quello processuale , si dovrebbe forse dire che la stessa necessità di un procedimento analogico viene ad essere in limine esclusa, in considerazione del costante richiamo della legge a clausole generali quali «buona fede», «giustizia», «ragionevolezza», ecc.
18. Le motivazioni e il loro stile: il retaggio della tradizione.
Se è vero che, in linea generale, la sentenza inglese fornisce un’impressione d’un meno accentuato formalismo, è altrettanto vero che lo stile varia spesso a seconda della materia. Vi sono certe aree del diritto, ad esempio, nelle quali la tradizione storica ed altri fattori non sempre facili da individuare hanno indotto i tribunali ad un atteggiamento molto più conservatore. In materia contrattuale, ad esempio, il ragionamento dei giudici tende ad essere più conservatore, più tecnico e più rigido che non, tanto per dire, nel diritto degli atti illeciti. In effetti, il diritto degli illeciti si colloca all’estremo opposto sotto questo punto di vista. Liberati, grazie ad una serie di autorevoli decisioni della House of Lords, dalle antiche restrizioni in merito alla disponibilità delle azioni per atto illecito, i giudici del nostro tempo hanno avanzato le frontiere del diritto in maniera eccezionale, facendo in particolare leva su concetti altamente manipolabili come quello di «prevedibilità» .
Altro fattore rilevante, in tema di motivazione delle decisioni, è costituito dal livello di ufficio giudiziario considerato.
«The second factor
influencing the style of judicial reasoning concerns the level of the court
in question. Judges in higher appellate courts feel more free to reason in a
broader, policy oriented, and less doctrinal or technical way than judges in
lower courts. This is, no doubt, partly the result of the doctrine of
precedent as it operates in
Ancora, non bisogna dimenticare il già ricordato, immenso, potere che ai giudici di common law è concesso, anche allorquando viene in gioco un particolare statute, attesa la propensione del Legislatore a rinviare a concetti generali quali «buona fede», «giustizia», «ragionevolezza», ecc. Tra i tanti esempi potremmo citare la possibilità, espressamente attribuita al giudice, di modificare un contratto tra coniugi separati o divorziati, fondandosi su ciò che «può apparire (...) giusto avuto riguardo a tutte le circostanze» . Potere, questo, che non sembra avere corrispondenti nei sistemi continentali , sebbene anche da noi le c.d. «clausole generali» conferiscano in diversi settori al giudice un ampio margine di discrezionalità, destinato però a sua volta ad arrestarsi (quanto meno di regola) di fronte a principi con esso collidenti, come ad esempio quello della libertà contrattuale .
«My third comment about the trend of modern developments in Enghsh law (…) concerns the extent to which modern laws are openly conferring discretions, particularly in private law, and particularly in the law of obligations. It is now almost the usual procedure in many new statutes, to lay down rules for the ordinary cases, and then to add that in exceptional cases the judges may depart from the rules. Sometimes the statute adds some guidance on what is to be considered an exceptional case, and how it may be dealt with, but in other cases, the statute may confer an exceptionally wide discretion to do what the court thinks right or just (…). For example, one important new statutory discretion (…) is S. 33 of the Limitation Act 1980 which permits the court to override the usual limitation period of three years in actions for damages for personal injuries wherever it seems equitable to do so. This new example illustrates particularly well the point I wish to make, which is that English judgments nowadays frequently deal at considerable length with these discretions, and contain lengthy explanations of why a discretion is exercised in one particular fashion, and not another» .
19. Obbligo di motivazione e procedimento attraverso il quale si perviene alla sentenza.
Si è già anticipato che nel sistema britannico e, più in generale, negli ordinamenti di common law, bisogna distinguere a seconda che si tratti di decisione di prima istanza (trial court), o di appello, o di ulteriore istanza. Per ciò che attiene ai giudizi di prima istanza, nel caso di presenza della giuria (assai raro in materia civile in Gran Bretagna, più frequente negli Stati Uniti), quest’ultima si limita, come noto, ad emettere un verdict, non motivato, che sarà seguito dal judgment, in cui il giudice enuncia concisamente i motivi e il dispositivo della decisione. La decisione è di solito resa oralmente e redatta per iscritto, sotto il controllo del giudice (o del clerk of court) da un avvocato. Nel caso di trial in assenza di giuria il giudice (di solito unico) può motivare sul fatto e sul diritto, ma non ne ha l’obbligo.
Per ciò che attiene alle corti di seconda o successiva istanza la procedura è un po’ più complessa .
La caratteristica fondamentale è dunque costituita – per lo meno fino all’entrata in vigore per la Gran Bretagna della Convenzione Europea dei diritti dell’uomo ed all’emanazione di una decisione della Court of Appeal, di cui verrà detto tra poco – dall’assenza di norme che espressamente impongano la motivazione, sebbene la prassi inglese (in ciò marcando una differenza abbastanza rilevante rispetto a quella americana) sia da molto tempo orientata nel senso che, in pratica, una motivazione viene effettivamente sempre emessa .
Si sarebbe quasi tentati (se l’esempio degli Stati Uniti non vi ostasse: ma l’argomento richiederebbe ben altro approfondimento) di istituire un ardito parallelo tra l’obbligo di motivazione della sentenza e l’esistenza di una costituzione scritta: come quest’ultima, anche l’obbligo di motivare le decisioni di giustizia sembra il frutto di ideologie e di processi rivoluzionari (che la Gran Bretagna non ha conosciuto); peraltro, nella stessa maniera in cui il «diritto vivente» ha provveduto all’elaborazione di una costituzione non scritta, così la prassi ha introdotto una regola non scritta nella legge, ma di fatto osservata, sulla motivazione della sentenza.
Il carattere non obbligatorio della motivazione sembra implicitamente confermato, al di là della Manica, anche dalla Part 40 delle Civil Procedure Rules , e in particolare dalla Rule 40.3, che nell’individuare gli elementi essenziali di un judgment, non menziona in alcun modo la motivazione, mentre, per ciò che attiene alla redazione della decisione, si occupa esclusivamente di chi vi debba procedere, nel modo seguente.
Sul tema non poteva peraltro non influire l’intervento normativo che, nel 1998 (Human Rights Act 1998) , ha determinato il recepimento della Convenzione Europea dei Diritti dell’Uomo nell’ordinamento britannico, rendendone possibile la diretta applicazione da parte dei giudici inglesi. Esprimendosi sul tema, la Court of Appeal, Civil Division, nella sua decisione in data 30 aprile 2002 , ha dichiarato, innanzi tutto – riferendosi a due precedenti pronunzie, rispettivamente, del 1982 e del 1994 – che l’obbligo di motivazione «è funzione del giusto processo, e, pertanto, della giustizia. Il suo fondamento presenta due aspetti principali. Il primo è che il principio di correttezza richiede certamente che le parti, specialmente quella soccombente, non dovrebbero essere lasciate nel dubbio sulle ragioni per le quali hanno vinto o perso (…). Il secondo è che la necessità di motivare induce alla concentrazione. Quando questo requisito è pienamente rispettato è molto più probabile che la decisione che ne deriva sia realmente fondata sulle prove anziché no».
La medesima pronunzia ha poi riconosciuto che «La giurisprudenza di Strasburgo è chiara nell’affermare che il diritto ad un giusto processo garantito dall’art. 6 della Convenzione Europea per la Protezione dei Diritti Umani e delle Libertà Fondamentali del 1950 (così come stabilito all’art. 1 della legge del 1998), che comprende il requisito che la pronuncia della decisione deve essere pubblica, comporta, quale normale conseguenza, che la decisione deve essere una decisione motivata. Per soddisfare tale requisito, le Magistrates’Courts ora motivano le loro decisioni».
20. Differenze formali e contenutistiche rispetto alle motivazioni «continentali».
Queste modalità di pervenire alla decisione nei sistemi di common law si riflettono inevitabilmente sulla struttura e sull’aspetto della motivazione della sentenza, così marcando profonde differenze rispetto a quanto previsto nel nostro ordinamento e a ciò che avviene nella nostra prassi .
Le evidenziate diversità tra i due sistemi a raffronto producono inevitabili riflessi anche sul modo in cui la motivazione viene espressa, trasposta per iscritto e quindi letta e interpretata. La dottrina italiana non ha mancato al riguardo di criticare la già rimarcata maggiore tendenza all’astrazione e al dottrinarismo della motivazione di casa nostra, di contro ad un più elevato grado di aderenza ai fatti di causa da parte del giudice inglese .
In relazione a quanto sopra va ricordato, ancora una volta, che, sul piano più propriamente stilistico, la motivazione della decisione di common law si caratterizza per un’impronta decisamente più discorsiva nell’argomentare del giudice, retaggio evidente del carattere storicamente orale della motivazione: impronta, questa, spesso conservata, curiosamente, anche laddove la decisione sia resa per iscritto dal giudice.
«Judgments in the
common law system, are written, especially today, in a somewhat discursive style. Reasoning is set out fully, indeed
(…) in considerable detail; thus there is scope for individual literary style, and some of our
greatest judges have been masters of the English language. When one
reads the judgments of one of these masters there is no mistaking the
idiosyncracies of the individual judicial style. Who but Lord Denning, for
instance, could have commenced his account of the tragic accident giving rise
to the proceedings in the Court of Appeal with the words, «It happened on
Da ciò consegue un più elevato grado di facilità di estrazione della ratio decidendi dal dictum del giudice d’Oltre Manica, laddove in Italia il procedere del giudice per astrazioni concettuali può finire per mascherare quelle che sono le vere ragioni di una decisione .
21. Tecnica delle citazioni e raccolte di giurisprudenza.
Un ulteriore effetto di quanto sopra indicato è riscontrabile in relazione al modo in cui i precedenti giurisprudenziali vengono citati nei due sistemi, consistente, rispettivamente, in:
· una (sovente acritica) riproduzione del mero principio di diritto, da noi;
· una ripresentazione (integrale o comunque assai esaustiva) degli elementi di fatto e di diritto che caratterizzavano il precedente, nonché un’analisi delle sue somiglianze e delle differenze rispetto al caso in esame, nella motivazione di common law .
Non vi è dubbio che la maniera con cui vengono citati i precedenti influisce, in un modo o nell’altro, non solo sulla forma, ma anche sulla sostanza della decisione .
Per quanto attiene, poi, alla tecnica delle citazioni, potrà aggiungersi che, di recente, alcune Practice Directions inglesi  sono venute a regolamentare la maniera di suddividere in paragrafi le motivazioni, nonchè la tecnica di citazione dei precedenti della Court of Appeal , così come, più in generale, delle altre authorities .
Un’ulteriore ricaduta della distinzione sopra effettuata riguarda le differenze tra i reports e le raccolte di giurisprudenza italiane , sebbene debba essere aggiunto, per rigore di completezza e ad onor del vero, che la situazione, nel nostro Paese, sembra essere mutata rispetto a come si presentava all’epoca in cui Gorla svolgeva le considerazioni qui richiamate. Lo strumento del case book ha infatti trovato ampia diffusione in Italia e, in molte delle sue ricchissime e variegate applicazioni, le decisioni vengono non solo riportate per intero, ma interpretate per quanto esse hanno affermato in relazione ai singoli casi concreti dalle stesse risolti. A ciò s’aggiunga che i moderni strumenti dell’informatica, con la creazione di banche dati giurisprudenziali (sia online che offline) contenenti non solo le massime, bensì anche le motivazioni per esteso, consentono all’interprete mediamente accorto di effettuare ricerche ed analisi assai più approfondite rispetto ad un tempo .
22. Riflessi della dissenting opinion.
Un accenno potrà farsi ancora al fenomeno della dissenting opinion, che ha destato interesse pure nei sistemi continentali, ottenendo, anche da questa parte della Manica, talune considerevoli applicazioni: si pensi, ad esempio, al Bundesverfassungsericht, su cui si avrà modo di tornare più avanti . Ancora una volta potranno qui riportarsi le considerazioni svolte sul tema da Gorla .
23. Esempi di sentenze.
La giurisprudenza britannica è rinvenibile, tra l’altro, nei siti seguenti:
In particolare può essere utilizzata la «maschera di ricerca» rinvenibile al sito seguente:
Sempre a titolo d’esempio potrà portarsi qui una decisione della Court of Appeal che ha statuito, tra l’altro, sulla risarcibilità del danno nel caso in cui una parte abbia richiesto ed ottenuto, pur in assenza dei presupposti di legge, un provvedimento cautelare, analogo al nostro sequestro conservativo, qualificato come Mareva (ora freezing) injunction . La decisione qui di seguito trascritta è reperibile nella banca dati del British and Irish Legal Information Institute, all’indirizzo web seguente: http://www.bailii.org/ .
Case No: A3/2000/0318 QBCMI
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (MR JUSTICE AIKENS)
Royal Courts of Justice
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE POTTER
LADY JUSTICE HALE
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
As Approved by the Court
Crown Copyright ©
1. This is an appeal by the third defendant ("Mr Yamvrias) against paragraphs 1 and 2 of an order made by Aikens J, sealed on 9th December 1999 whereby he dismissed Mr Yamvrias’ application by summons dated 14th July 1998 for an inquiry as to damages which Mr Yamvrias may have suffered as a result of injunctive relief obtained by the claimant ("Yukong") pursuant to its cross-undertaking in damages given to the court when Yukong obtained an injunction on 17th October 1997 ordering the first defendant ("Rendsburg") to pay the sum of US$ 244,965 into court and further ordered the continuation of a freezing order previously made against Mr Yamvrias in the sum of US$ 245,000 until such payment-in or until further order ("the October 1997 Order"). Aikens J also ordered that Mr Yamvrias pay the claimant’s costs of the application before him.
2. The matter has a complicated procedural history which it is necessary to set out in order fully to understand and consider the arguments.
THE PROCEDURAL HISTORY
3. Yukong originally
claimed against Rendsburg only. Rendsburg, as disponent owners of the vessel
called "Rialto" had entered into a three year time charter for the
vessel in July 1995, repudiating it before the vessel was due to be delivered
under the charter in early 1996. The repudiation took the form of a telex of
4. On 2nd February 1996 Yukong issued a writ claiming damages of over US$ 2.3 million for wrongful repudiation of the charterparty and, on the same date, obtained Mareva relief against Rendsburg from Colman J who ordered that Rendsburg must not remove assets from England and Wales totalling US$ 3.35 million. The usual cross-undertaking in damages was given by Yukong .
5. On 7th June 1996, Waller J varied the form of the original Mareva order against Rendsburg and granted Mareva relief against Mr Yamvrias, on giving leave to Yukong to join him as third defendant in the action. The amended Points of Claim set out two claims against Mr Yamvrias personally: (i) that in signing the charterparty he had acted as undisclosed principal of Rendsburg so that he incurred personal liability under the charter and was thus liable in damages for its repudiation; (ii) that Rendsburg, the second defendant and Mr Yamvrias had together conspired to injure Yukong by removing funds in the amount of US$ 245,614.29 from an account of Rendsburg with Den Norske Bank ("DNB") shortly before Rendsburg’s telex of repudiation. US$ 164,799 of the funds were transferred to the second defendants ("Ladidi") which Mr Yamvrias also controlled. It was asserted that Mr Yamvrias had put the funds to his own use and that the predominant purpose of such removal was to ensure that there would be no funds against which Yukong could enforce a judgement against Rendsburg. It was also alleged that the conspiracy was to remove the funds by `unlawful means’ namely breach of Mr Yamvrias fiduciary duty as a `shadow director’ of Rendsburg.
6. The amended form of Mareva order made against Rendsburg reduced the sum enjoined to US$ 2.79 million and the further Mareva order against Mr Yamvrias enjoined him from removing assets up to US$ 2.79 million from the jurisdiction. He was also ordered to disclose information relating to his assets. The cross-undertaking in damages was in the usual form. Yukong as plaintiff undertook to the court:
"If the Court later finds this Order has caused loss to the Defendants and decides that the Defendants should be compensated for that loss, the Plaintiffs will comply with any Order the court may make"
7. The fourth defendant
("VAL") and DNB were added as parties on
9. The trial of the claims against Mr
Yamvrias took place before Toulson J in July 1997. By a judgment dated
10. In the course of his judgment, Toulson J made various findings against Mr Yamvrias, who had elected not to give evidence at the trial despite the fact that, as Toulson J put it, `a large number of questions cried out to be answered by him’. Toulson J inferred that the reason why he did not do so was that:
"Either he was unwilling to perjure himself in the witness box and believed that if he were to tell the truth it would be detrimental to his cause, or else he did not believe that his case would withstand his being cross-examined on it."
11. Finally, Toulson J suggested that, as Mr Yamvrias controlled Rendsburg and had organised disposal of its funds for his own benefit:
".... he would presumably have been in a position on behalf of the company to get back from himself that which he had caused to be paid for his benefit"
and went on to observe that:
"... in an appropriate case it might be within the scope of the court’s Mareva jurisdiction to require a company, and its only effective officer, to do just that".
"1. The Order dated
2. There be no inquiry as to damages to the third Defendant."
14. Toulson J was also asked to continue the Mareva order against Mr Yamvrias personally, an application which had found no place in the summons of 29th September. In that respect he stated:
"Finally there is the matter of the Mareva order against Mr Yamvrias and his possible application for an inquiry as to damages against Yukong . As to the injunction itself, I have not had argument about this, but as at present advised, it seems to me that if a court had known the full facts now known at the time the original order was made, a Mareva order would have been made against Mr Yamvrias in the sum of US$ 245,000 as relief ancillary to Yukong ‘s claim against Rendsburg, and that accordingly such an order should remain in force until repayment of that sum into the designated account or further order".
The October 1997 order which followed was drawn in a form subsequently agreed between counsel and perfected on that date to embody the judge’s decision. So far as relevant, its terms were as follows:
"Transfer of Monies into Jurisdiction
1. The first defendant do by the third defendant, no later than twenty-eight days from service of this order on the first defendant pay the sum of US$ 244,965 into court at the Royal Courts of Justice, London, England.
2. The sum paid into court pursuant to the order in paragraph 1 hereinabove shall remain in court until further order.
Plaintiff’s Undertaking to Enter Judgment Against First Defendant
3. Within forty-eight hours of the payment into court of the sum referred to in paragraph 1 above, the plaintiff undertakes to enter judgment against the first defendant in the action.
Continuation of Injunction Against First and Third Defendants
4. Save as aforesaid, the injunction granted by Mr Justice Colman on 2nd February 1996, as varied by Mr Justice Waller on 7th June 1996, restraining the first defendant [i.e. Rendsburg] from disposing of or otherwise dealing with or diminishing the assets held in England and Wales whether in the name of the first defendant, whether or not solely or jointly owned up to a value of US$ 2,790,000 be continued until further order.
5. Save as aforesaid, the injunction granted by Mr Justice Colman on 2nd February 1996 [as varied by Mr Justice Waller on 7th June 1996] and as further varied by Mr Justice Toulson on 24th September 1997, restraining the third defendant [i.e. Mr Yamvrias] from removing from England or Wales or in any way disposing of dealing with or diminishing the value of any assets in the jurisdiction up to the value of US$ 245,000, be continued until paragraph 1 has been complied with or until further order ....
8. The first and third defendants to have liberty to apply to the court within twenty-eight days of the service of this order on the first defendant to set aside or vary the terms of the order.
15. It is not in dispute that, because the October 1997 order was a further variation of that of Colman J and Waller J, the cross-undertaking in damages originally given by Yukong remained effective so far as Mr Yamvrias was concerned.
16. On 13th November 1997, Mr
Yamvrias applied to set aside the order against him or to vary it so that (i)
the requirement that Rendsburg should pay into court the sum of US$ 244,965
`by or through’ Mr Yamvrias and (ii) the `restraining’ order against him
should both be lifted unreservedly’. However, Mr Yamvrias did not serve any
evidence in support of the application punctually or, following an order that
he do so, by
17. By notice of motion dated 1st
April 1998, Yukong applied for
leave to issue a writ of sequestration against Mr Yamvrias’ assets on the
grounds that he was in breach of paragraph 1 of the October 1997 order in
that he had not procured payment into court of the sum of US$ 244,965. On
"What he [Toulson J] was recognising was that he was attempting to take, in effect, a short cut in relation to the enforcement of a judgment against Rendsburg he having found that the personal defendant [i.e. Mr Yamvrias] was not liable".
18. The substantive appeal against the
order of Tuckey J was heard on
19. On 14th July 1998 Mr
Yamvrias applied by summons for orders that the Mareva relief granted under
paragraph 5 of the October 1997 order should be discharged and that there
should be an inquiry as to damages suffered by Mr Yamvrias as a result of its
being granted. On
20. Mr Yamvrias’ summons in that regard
was due to be heard before Timothy Walker J on
21. The hearing of the summons took
place before Aikens J on
THE JUDGMENT OF AIKENS J
22. Having reviewed the principles on which a court will grant an inquiry as to damages in terms as to which no point has been taken in this appeal, Aikens J identified the issues raised in argument as being: (1) Was the injunction against Mr Yamvrias "improperly obtained?" He identified two sub-issues as having been argued under this head. The first related to the injunction against Mr Yamvrias initially granted by Waller J restraining him from disposing of assets of US$ 2.7 million until trial or further order; second, the October 1997 Order of Toulson J restraining Mr Yamvrias from disposing of assets of US$ 244,965. For reasons which have not been challenged before us, the judge concluded he did not need to consider whether or not the original injunction of Waller J had been improperly obtained; thus we have not been troubled with argument on that score. (2) Had Mr Yamvrias adduced credible evidence of loss or damage to himself which was caused by the grant of either injunction? Again, as a result of unchallenged findings by the judge in relation to the original injunction, this court has been concerned only with the question of damage arising under the October 1997 Order. (3) Whether Mr Yamvrias’ conduct, both up to the trial and before Toulson J and subsequently, was such as to deprive him of the right to obtain an inquiry as to damages.
23. As to the first issue, Aikens J referred to the decisions in SCF Finance Co. Limited -v- Masri  1 WLR 876 and TSB Private bank International SA -v- Chabra  1 WLR 231 and held that the injunction was properly granted on the basis that:
"It was ancillary and incidental to the order against Rendsburg that it should pay into court the assets of US$ 244,965 that had been removed from DNB by Mr Yamvrias’ action". (para 31 of the judgment)
In this connection he stated:
"28 Toulson J .. concluded, in the course of dealing with the claims against Mr Yamvrias, that he had controlled Rendsburg and had been instrumental in removing Rendsburg’s assets from its account with DNB. Those assets had found their way into accounts effectively controlled by Mr Yamvrias and had then disappeared....
29. It is clear, in my view, that
Toulson J had concluded, both in his judgment delivered on 23 September 1997
and in that given on 1 October 1997 (although he did not hear arguments
specifically on this point at any stage) that Mr Yamvrias was probably
controlling assets (i.e. the US$ 244,965) that were actually those of
Rendsburg. When he heard argument on
".... it seems to me that if a court had known the full facts now known at the time the original order was made, a Mareva order would have been made against Mr Yamvrias in the sum of US$ 245,000 as relief ancillary to Yukong ‘s claim agaisnt Rendsburg and that accordingly such an order should remain in force until repayment of that sum into the designated account or further order".
30. I am therefore sure that Toulson J
was exercising a Chabra type of jurisdiction when imposing the Mareva
injunction against Mr Yamvrias. Mr Yamvrias did not pursue his right to apply
to set aside that order, as he was entitled to do by paragraph 8 of the order
24. As to the second issue i.e. the
damage alleged, the judge had to deal with two projects identified in a
witness statement by Mr Soutar, Mr Yamvrias’ solicitor, in which it was
stated that Mr Yamvrias was `unable to participate’ as a result of the
October Order. The first was the purchase and bare boat chartering up to four
`Panamax’ vessels, called the `Ever’ Vessels Project. That involved the
setting up of four ship owning companies, each of which would be wholly owned
by a company itself to be jointly owned by Marcan (of which Mr Yamvrias was a
director) and a company called Veritas owned and/or controlled by a Captain Skarvelis.
The second project was a project for Contracts of Affreightment for carriage
of goods from
25. In relation to the `Ever’ Vessels project, on the evidence before the judge it was not Mr Yamvrias personally but Marcan, as broker to Rendsburg which had suffered the damage claimed. For a variety of reasons given by the judge, against which there is no appeal, the claim for loss in respect of the ‘Ever’ Vessels Project is not pursued.
26. So far as the Contracts of Affreightment scheme was concerned, I shall turn to it in more detail below, when considering an application by Mr Yamvrias to adduce further evidence in relation to it. Suffice it to say that Aikens J found there was no credible evidence of loss to Mr Yamvrias in the manner put forward in the affidavits of Mr Soutar on his behalf.
27. Finally, so far as the conduct of Mr Yamvrias throughout the proceedings was concerned, the judge considered (i) the findings of Toulson J that Mr Yamvrias had been instrumental in dissipating Rendsburg’s assets so as to make it "judgment proof" (ii) the failure of Mr Yamvrias to explain his actions at the trial before Toulson J by electing not to give evidence (iii) what Toulson J had called Mr Yamvrias’ dissembling, in relation to his cross-examination on assets, and as to who owned Rendsburg and Ladidi (iv) the fact that Mr Yamvrias had delayed in applying to enforce the cross undertaking in damages for so long. The judge stated that he shared the view of Toulson J that Mr Yamvrias’ conduct in the course of the case had been disreputable and devious. However, he said:
"But it has not been so shocking that, had I concluded that he had a credible claim to damages, he should, nonetheless, be debarred from pursuing it. However, I have taken the conduct of Mr Yamvrias into account when assessing the credibility of the evidence before me on whether he has actually suffered any loss as a result of the imposition of either injunction. Because of his initial disreputable and devious behaviour and his failure to explain himself in the witness box at the trial and because he has not been now prepared to put forward his own witness statement supported with a belief as to its truth, I have had to look very carefully at the evidence put forward on his behalf by Mr Soutar. I am sure Mr Soutar took careful instructions and I am not doubting his honesty or credibility. But I am not prepared to accept as credible evidence any assertion of loss by Mr Yamvrias that is made through Mr Soutar, unless there is some other material that supports it. For the reasons that I have given above, none of the documentary material provides credible evidence that Mr Yamvrias has sustained damage (of the kind asserted Mr Soutar’s first witness statement) as a result of either injunction."
THE GROUNDS OF APPEAL
28. The grounds of appeal as argued before us by Mr Steven Gee QC for Mr Yamvrias related to two broad aspects of the judge’s decision. First, the `propriety’ of the freezing order granted under paragraph 5 of the October 1997 Order; second, the judge’s finding that Mr Yamvrias had advanced no credible evidence of loss as the result of that freezing order.
29. As to the first ground, Mr Gee submitted that the injunction was improperly granted by Toulson J by way of a `shortcut’ method aimed at ensuring that one person (Mr Yamvrias), against whom no cause of action had been established by Yukong , nonetheless pay to Yukong the debts of another person (Rendsburg) against whom liability had been established. That being so, Mr Gee submitted that the order breached the principle that a freezing order `must be incidental to and dependent on the enforcement of a substantial right which usually, though not invariably, takes the shape of a cause of action’: see Channel Tunnel Group Limited -v- Balfour Beatty Construction Limited  AC 334 per Lord Mustill at 362.
30. In this connection, Mr Gee acknowledged that the court has jurisdiction to grant a freezing order over someone against whom no direct cause of action lies, provided that the claim is `ancillary and incidental’ to a cause of action the subject of proceedings against a defendant in respect of whom a cause of action is established; see TSB -v- Chabra (above) per Mummery LJ at 241H-242A; Mercantile Group -v- Aiyela  QB 366 per Hoffman LJ at 376C-E, Steyn LJ at 376F-377B and Sir Thomas Bingham MR at 377C. However, Mr Gee submitted that the judge did not exercise, or at any rate should not be treated as having exercised, a `Chabra-type’ jurisdiction in this case because (i) `the foundation’ of the order was not Yukong ‘s cause of action against Rendsburg, but the misconceived view (subsequently held by the Court of Appeal to be incorrect) that there was jurisdiction to make an order against Mr Yamvrias personally to pay money into court under paragraph 1 of the October 1997 order. Mr Gee submitted that this was evident from the provision in paragraph 5 that the freezing order should cease to have effect upon such payment into court. (ii) Following the decision of the Court of Appeal on 23rd June 1998 as to the meaning of paragraph 1 of the order, Yukong acknowledged the position in a fax to the solicitors for Mr Yamvrias suggesting that `in the light of the decision of the Court of Appeal’ the injunction should be discharged, as it subsequently was. (iii) The form of the order was in any event inappropriate to a Chabra-type order because it was completely general and indiscriminate in its effect over Mr Yamvrias’ assets rather than being aimed simply at the dissipation of the fund of US$ 244,965 said to belong to Rendsburg.
31. As to the judge’s decision that the evidence placed before him was insufficient to warrant an inquiry as to damage, Mr Gee limited his submissions to the damage alleged to have been suffered by Mr Yamvrias under the heading `Contracts of Affreightment’ in respect of which the judge held there was no credible evidence of loss.
THE RELEVANT LAW
Inquiry as to Damages
32. Whereas the usual practice in respect of interlocutory injunctions is not to order an inquiry into damages on the cross-undertaking until the merits of the action have been finally decided at trial, in cases where a Mareva injunction is involved, a defendant or other party bound in respect of whom the injunction is discharged at any stage may seek, and be granted, an inquiry into damages on the basis that, regardless of the ultimate merits of the action, the injunction was `wrongly granted’. That term is in my view preferable to `improperly obtained’, because impropriety seems to me to carry connotations of improper conduct by the applicant, such as non-disclosure of material facts, whereas the term `wrongly granted’ covers the far wider circumstances in which the injunction may be discharged and an inquiry ordered. In respect of those wider circumstances it is necessary, for the purposes of the argument in this case, to distinguish between the position where the order is attacked on the grounds that the court lacked jurisdiction to make it and the position where the court makes an order within its jurisdiction but which is subsequently demonstrated or conceded to have been too wide in its scope or unjustified or inappropriate on the facts.
33. Upon discharge of a Mareva injunction, the court has a discretion whether or not to enforce the undertaking in damages. It may enforce it by a summary award of damages: see Practice Direction (Mareva and Anton Piller Orders: New Forms)  4 All ER 52 at 54, paragraph (4) of which requires consideration of such a remedy when the injunction is discharged on its return date. More usually, the court, having exercised its discretion to enforce the undertaking, may order an inquiry as to damages. In appropriate cases it may adjourn the application to the trial or further order, as in Cheltenham & Gloucester Building Society -v- Ricketts  1 WLR 1545. It may decide that the undertaking is not to be enforced. However, if it is established that the injunction was wrongly granted, albeit without fault on the plaintiff’s part, the court will ordinarily order an inquiry as to damages in any case where it appears that loss may have been caused as a result.
34. The question whether the undertaking
should be enforced is a separate question from the question whether the
injunction should be discharged. The order for an inquiry as to damages is
discretionary, such discretion being exercised in accordance with equitable
principles, taking into account all the circumstances of the case, but
bearing in mind that, since the injunction should not have been obtained,
prima facie the plaintiff ought to bear the loss: see Financiera Avenida
-v- Shiblaq  The Times 14th January (CA Civil Division).
As observed by James LJ in Graham -v-
35. So far as evidence of loss is concerned, upon an application for an inquiry, the applicant must adduce some credible evidence that he has suffered loss as the result of the making of the order. The court will not order an inquiry if it appears to be pointless to do so because the intended claim for damage is plainly unsustainable. That may be because it is clear that the order is no more than the factual context for loss which would have been suffered regardless of the granting of the order, or it may equally be clear that the damage is too remote. However, at the stage of exercising its discretion whether to order an inquiry, the court does not ordinarily hear protracted argument on whether the suggested loss will be recoverable. If the defendant shows that he has suffered loss which was prima facie or arguably caused by the order, then the evidential burden of any contention that the relevant loss would have been suffered regardless of the making of the order in practice passes to the defendant and an inquiry will be ordered: see for instance Financiera Avenida SA -v- Shiblaq (above); Tharros Shipping Co Limited -v- Bias Shipping  1 Lloyd’s Rep 577.
36. The question of what is the appropriate test of `remoteness’ in the context of a claim for damages on a cross-undertaking is a point which has not been fully explored in the English cases, as Neill LJ pointed out in the Cheltenham & Gloucester Building Society case (above) at 1552C. He stated that, in exercising its equitable jurisdiction, the court should adopt similar principles to those relevant in a claim for breach of contract, a test adopted by Waller J in the Tharros Shipping case (above). This test has recently been questioned by Jacob J in R -v- Medicines Control Agency ex.p. Smith & Nephew Pharmaceuticals Limited, Ch.D. 26th March 1999. However, it is not necessary to go into the niceties of that question for the purposes of deciding this appeal.
37. It is now settled law that, although the court has no jurisdiction to grant an interlocutory Mareva injunction in favour of a plaintiff who has no good arguable cause of action against a sole defendant, it has power to grant such an injunction against a co-defendant against whom no direct cause of action lies, provided that the claim for the injunction is ancillary and incidental to the plaintiff’s cause of action against that co-defendant: see TSB -v- Chabra (above), a case in which it appeared that assets which beneficially belonged to Mr Chabra were vested in a limited company of which he appeared to be the alter ego. Mummery J stated at  1 WLR 240:
"If the court has power to make an
order against the company, the available evidence points strongly, in my
view, to the need for an injunction against it. There is a good arguable case
that some of the assets held in its name are the beneficial assets of Mr
Chabra either on the basis that the company holds them on trust for or as
nominee for him, or on the basis that the company is nothing more than a
convenient repository for Mr Chabra’s assets. It is therefore, important that
any such assets should be available to the plaintiff to satisfy any judgment
it may obtain against Mr Chabra. If no injunction ......., there is a real
risk that it will dispose of assets so as to defeat the plaintiff’s chances
of satisfying the judgment that it may obtain. The effect of the company
disposing of its assets would also be indirectly to reduce the value of any
shareholding which Mr Chabra had and may still have in the company. The
disposal would have the direct effect of diminishing the prospects of any
assets vested in the company which may be Mr Chabra’s beneficial assets,
being available in the
That decision was subsequently expressly approved by the Court of Appeal in Mercantile Group -v- Aiyela (above) in which Hoffman LJ stated at p. 376:
"In this case, the plaintiffs substantive right is a judgment debt owed by Mr Aiyela. The Mareva injunction against Mrs Aiyela is incidental to and in aid of the enforcement of that right ... TSB Private Bank International S.A. -v- Chabra ... was a case of a pre-judgment Mareva. ... the plaintiff had a Siskina cause of action against Mr Chabra and the injunction against the company was ancillary to that cause of action.
Accordingly, I think that there was jurisdiction to grant the Mareva against Mrs Aiyela, who did not need to be joined because she was already a party to the action."
See also per Steyn LJ at 1123G-1124A and per Sir Thomas Bingham MR who stated at 1124E:
"Both principle and authority persuade me that the judges who made these orders did have jurisdiction to make them.. I am very pleased to reach that conclusion, for if jurisdiction did not exist the armoury of powers available to the court to ensure the effective enforcement of its orders would in my view be seriously deficient."
"The jurisdiction is of course one to be exercised with caution, restraint and appropriate respect for the legitimate interests of third parties. But that the jurisdiction exists ... I do not doubt."
WAS THE INJUNCTION WRONGLY MADE?
38. Turning now to the question of
jurisdiction, I consider that Aikens J was correct when he expressed himself
satisfied that Toulson J was consciously exercising the court’s `Chabra-type’
jurisdiction when imposing the Mareva injunction upon Mr Yamvrias contained
in paragraph 5 of the October 1997 order. In the course of argument on
39. Until that point in his judgment, Toulson J had been entirely concerned with arguments addressed to the question whether or not the order sought in paragraph 1 of the summons of 29th September 1997 (see paragraph 12 above) was one which he could or should make in circumstances where Mr Yamvrias had been held not to be personally liable on the cause of action brought against him in respect of which the Mareva relief against him had originally been granted. In that respect he stated:
"It is logical and just that if a court has jurisdiction to prohibit a party [i.e. Rendsburg] from acting in a way intended to make itself judgment-proof, so the court should be able to order that party to un-do measures taken with that object ... .
When an order is made against a company which is a party to an action, the court also has jurisdiction to make an order against an officer of a company, if that is necessary in order to secure compliance with the order by the company. In the present case, therefore, I am satisfied that I have the jurisdiction to make the order sought, and indeed, Mr Hamilton QC [for Mr Yamvrias] has not submitted otherwise."
He then dealt with and dismissed a number of submissions by Mr Hamilton by way of further objection to the form of order sought in the summons. These included a submission that the summons should be dismissed as premature because Yukong had not yet signed judgment against Rendsburg and did not wish to do so pending a decision whether or not to appeal against the judge’s dismissal of its claim against Mr Yamvrias, and that it was inappropriate to make an order for immediate repayment of the funds paid away by Rendsburg if Yukong intended not to file judgment against Rendsburg but to pursue its claim against Mr Yamvrias by way of appeal. The judge held that the correct answer to that objection was to require an undertaking by Yukong that it would sign judgment against Rendsburg within forty-eight hours after it had complied with the order. So far as the order requested under paragraph 1 of Yukong ‘s summons was concerned, which (with the wording slightly amended) became paragraph 1 of the October 1997 order, Toulson J said:
"I will listen to any further arguments as to the precise form of wording, but I propose, subject to Yukong giving the undertaking to which I referred, to make an order that Rendsburg, by Mr Yamvrias, cause the sum of US$ 245, 614 to be paid into an account to be specified within twenty-eight days unless within that period Rendsburg or Mr Yamvrias apply to vary or set aside this order."
40. Having so dealt with the matter, the judge turned to the question of whether or not the Mareva order already existing against Mr Yamvrias should be discharged. He did so with the words I have already quoted at paragraph 14 above which I am satisfied make it clear that, in continuing the Mareva order against Mr Yamvrias in reduced sum of US$ 245,000, he did so by way of an order ancillary to Yukong ‘s claim against Rendsburg, pending the signing of judgment against it.
41. When Waller LJ, in giving leave to Mr Yamvrias to appeal from the order of Tuckey J which had granted leave to Yukong to issue a Writ of Sequestration against Mr Yamvrias, expressed his concern that the October 1997 Order was a "shortcut" in relation to the enforcement of a judgment against Rendsburg he was considering paragraph 1 of that order. It was that paragraph only which was the subject of the notice of motion for leave to sequestrate the assets of Mr Yamvrias. Waller LJ did not refer to, or apparently consider, the question of the court’s jurisdiction to make the freezing order set out in paragraph 5. Equally, at the substantive hearing of the appeal, Nourse LJ gave no apparent consideration to the question of the court’s jurisdiction to make the freezing order. He simply echoed the concern of Waller LJ about the jurisdiction of Toulson J, having dismissed the action as against Mr Yamvrias, to make any order for payment against Mr Yamvrias personally. The only reference which Nourse LJ made to paragraph 5 of the October 1997 was in relation to the attempt of counsel for Yukong to use paragraph 5 as an aid to the construction of paragraph 1, by submitting that, since paragraph 5 imposed a personal obligation on Mr Yamvrias which continued until paragraph 1 had been complied with, it was indicative of an intention on the part of Toulson J to render Mr Yamvrias personally liable to effect or procure the payment under paragraph 1. That argument was rejected by Nourse LJ with the observation that paragraph 5 could only be relied on if there was any ambiguity in paragraph 1, which ambiguity did not exist in his view. That being so, I do not consider that Mr Gee can derive support for his submissions that there was no jurisdiction to make the freezing order from any previous observations made in this court.
42. Nor do I consider that Mr Gee’s position is improved by reason of the fact that, following the Court of Appeal decision, Yukong suggested that the injunction should be discharged. The effect of that decision was that Yukong had no entitlement, as it had supposed, to issue a writ of sequestration against Mr Yamvrias under paragraph 1 of the October 1997 Order in respect of Rendsburg’s failure to pay into court the sum ordered. It was Yukong ‘s case that, by then, it was clear that any attempts to trace assets through Mr Yamvrias had proved hopeless and, in any event, the consequent consent order for discharge of the freezing order was expressly agreed to be without prejudice to the question of Mr Yamvrias’ entitlement to an inquiry as to damages.
43. Mr Gee has submitted that the injunction should not be construed as having been made under the court’s Chabra-type jurisdiction because of the form in which it was made i.e. a form which applied generally to Mr Yamvrias’ assets up to the sum of US$ 244,965, rather than being expressly limited to the proceeds of the US$ 244, 965 which had passed from Rendsburg’s account to that of Ladidi and thereafter elsewhere. I do not accept that submission for two reasons. First, it seems to me that in a case such as this the answer to the question whether or not an order was made pursuant to a particular jurisdiction is prima facie to be determined by reference to the terms of the judgment, rather than the wording of the order. Where, a judge makes clear (as Toulson LJ made clear in this case) that in making a particular order he is exercising a particular jurisdiction, and at the same time he makes clear the factual assumptions and legal basis upon which he does so, then, unless, on appeal from that order, it is demonstrated that those assumptions were invalid or the legal basis incorrect, the order will ordinarily be assumed to have been regularly made in any subsequent proceedings. It may be appropriate to make an exception in a case where the wording of the order is manifestly inconsistent or at odds with the jurisdiction identified by the judge; however, that is not this case. I say that because of the second reason, to which I now turn.
44. Although it is plain that the court’s Chabra-type of jurisdiction will only be exercised where there are grounds to believe that a co-defendant is in possession or control of assets to which the principal defendant is beneficially entitled, it does not seem to me that the jurisdiction is limited to cases where such assets can be specifically identified in the hands of the co-defendant. Once the court is satisfied that there are such assets in the possession or control of the co-defendant, the jurisdiction exists to make a freezing order as ancillary and incidental to the claim against the principal defendant, although there is no direct cause of action against the co-defendant. Since the purpose of granting such an injunction against the co-defendant is to preserve the assets of the principal defendant so as to be available to meet a judgment against him, the form of order made against the co-defendant should be as specific as the circumstances permit in respect of the principal defendant’s assets of which he has possession or control. Thus, generally, the form of injunction will be tailored to that purpose and should be no wider than is necessary to achieve it. However, subject to that requirement, if a co-defendant is mixed up in an attempt to make the principal defendant judgment-proof and the assets or their proceeds are not readily identifiable in his hands it is open to the court, where it is just and convenient to do so, to make an order which catches the co-defendant’s general assets up to the amount of the principal defendant’s assets of which he appears to have possession and control. That was in fact the position in TSB -v- Chabra itself. In that case, Mr Chabra, the original defendant was alleged to be the alter ego of the co-defendant company against which the plaintiff had no direct cause of action, but in respect of which there was a good arguable case that assets vested in its name were in fact beneficially the property of Mr Chabra, in particular the proceeds of sale of recently completed hotel and restaurant interests and the house in which Mr and Mrs Chabra lived. Because of the difficulty in ascertaining which assets of the company were in fact assets to which Mr Chabra was beneficially entitled, the Mareva Order made against the company was one which applied generally to prevent it from disposing or dealing with any of its assets within the jurisdiction, albeit it also covered `in particular’ the proceeds of sale from the hotel and restaurant businesses. Mummery LJ observed at p.242F:
"In brief, the most realistic and practical form of relief in this case is to restrain the company from disposing of, or dealing with, assets until it is established whether the plaintiff is entitled to a judgment against Mr Chabra and until it is established which, if any, of the assets apparently vested in the company are available to satisfy any judgment obtained against Mr Chabra."
45. In this case, at the time of the October 1997 order, Mr Yamvrias had failed to reveal what had happened to the US$ 245,000-odd paid away by Rendsburg from its account with DNB save that US$ 164,799 had been transferred to Ladidi and thence to VAL. He had failed to give any (or any credible) explanation of any consideration for or purpose behind the payments or who was the ultimate beneficiary. Toulson J was satisfied that Mr Yamvrias was the controller of Rendsburg and Ladidi and the position of VAL and the reason for the transfer to it remained obscure. Toulson J expressed himself satisfied at trial that the sole purpose of the transfer to Ladidi (as the creature of Mr Yamvrias) was to put Rendsburg’s assets beyond the reach of Yukong and he stated that Mr Yamvrias had `put up a cover story which has failed’. As Aikens J observed at paragraph 29 of his judgment (see paragraph 23 above) Toulson J appears to have concluded that Mr Yamvrias was still probably controlling assets to the extent of US$ 245,000-odd which were beneficially owned by Rendsburg. In those circumstances, I consider that Toulson J was entitled to make the freezing order contained in paragraph 5 of the October 1997 order in the form which he did.
46. Mr Gee has advanced two principal arguments as to why the form of order was too wide. First, he submitted that the key reason in TSB -v- Chabra for the wide wording of the order was an element absent in this case, namely the observation of Mummery J that the effect of the company disposing of its assets would be indirectly to reduce the value of any shareholding which Mr Chabra might have in the company, thus diminishing the prospects of company assets being available to meet a judgment against Mr Chabra. I do not accept that submission. That observation of Mummery J was a makeweight observation supplementary to the reason of broad principle that there were assets of the company not currently identifiable which were beneficial assets of Mr Chabra which ought to be available to the plaintiff to satisfy any judgment it might obtain against him. Mr Gee also pointed out that in the case of Mercantile Group -v- Aiyela, there was present an important element not highlighted by the Court of Appeal, namely that there was before Hobhouse J at first instance, a potential claim by the plaintiffs against the original defendants under s.423 of the Insolvency Act 1986 and the plaintiffs were also in a position to make application for leave for an order under s.424, in support of both of which claims the court had jurisdiction to grant an ancillary Mareva relief. A reference to the decision of Hobhouse J at first instance  FSR 745, makes clear that that was not the basis upon which Hobhouse J made his order. In that respect, Hobhouse J observed:
"The Mareva is being used properly as ancillary relief in proceedings properly before the court and in conjunction with substantive rights being enforced in the proceedings. Mrs Aiyella is a person who has become involved in what are to be assumed to be steps taken by Mr Aiyella to defeat the course of justice. She thereby came under a duty to assist the course of justice. That duty gives the court the jurisdiction to grant an injunction against her ...."
It was on that basis that the Court of Appeal upheld the judgment of Hobhouse J and approved the principle enunciated by Mummery J in TSB -v- Chabra which he had applied.
47. Thus, I do not consider that the injunction was wrongly made in the sense argued for by Mr Gee. Nonetheless, Aikens J held that, while the fact that the injunction was properly granted was an important feature in considering whether there should be an enquiry as to damages, it was not conclusive. He therefore proceeded to consider whether Mr Yamvrias had demonstrated that he had personally suffered damage as a result of the October 1997 Order, having stated that, despite the `disreputable and devious behaviour’ of Mr Yamvrias, it was not so shocking as to debar him from claiming damages if he could demonstrate a credible claim in that respect. It was nonetheless a feature to be taken into account when assessing the credibility of evidence as to loss proffered on his behalf: see the passage of the judgment quoted at paragraph 27 above.
THE CONTRACTS OF AFFREIGHTMENT SCHEME
48. The basis of the claim for damages
in connection with this scheme was the assertion of Mr Yamvrias, made in the
witness statement of Mr Soutar, that Captain Skarvelis had offered Mr
Yamvrias the opportunity to invest the sum of $100, 000 in a scheme to
charter Panamax vessels to fulfil contracts of affreightment which Captain
Skarvelis’ company Veritas had concluded to carry cargoes from Argentina. Mr
Yamvrias had indicated his intention to participate by a Fax letter dated
"I am interested to participate in the contracts of affreightment which you are negotiating on a 50/50 basis.
If you accept above proposal, please confirm your agreement by return."
49. No further relevant correspondence
was exhibited save (1) a telex of 16th March 1998 from Marcan to the owners
of one of the vessels concerned guaranteeing the obligations of Veritas under
the charterparty; (2) a letter dated 20th May 1998 from Veritas to
Mr Yamvrias at Marcan Shipping, referring to the previous year’s offer, and
indicating that, had Mr Yamvrias invested on a `50% participation’, he would
have realised almost $400,000. It offered him the chance again to participate
by remittance of $100,000 by
50. By a witness statement in answer, Mr Moon, Yukong ‘s solicitor, challenged the case put forward by Mr Yamvrias and made the point that, if the business opportunities spoken to were genuine, there had been nothing to prevent Mr Yamvrias from seeking Yukong ‘s agreement, and/or to apply to the court, to allow such investment. In this respect, the 28-day `liberty to apply’ to vary the Mareva had not expired.
51. The judge, having already examined in detail, and discredited, Mr Yamvrias’ claim in respect of the `Ever’ Vessels Project (see paragraphs 24-25 above), dealt quite shortly with the Contracts of Affreightment he said:
"45. I cannot accept there is
credible evidence of loss to Mr Yamvrias under this head. First, there is no
credible evidence that Mr Yamvrias was unable to go ahead with the project on
a personal basis (by investing $100,000) other than the say-so of Mr
Soutar. If I am meant to read the fax of 17th October to Veritas
as being an indication that Mr Yamvrias wished to participate personally in
the project, then it seems he thought he could do so at that stage. But on
46. Secondly there is no evidence that
Mr Yamvrias had $100,000 to invest, but was unable to use it because of the
injunction. On the contrary, when Mr Yamvrias filed evidence of his assets
(pursuant to paragraph 2 of the Order of Waller J of
47. It seems much more likely that it was Marcan that was going to participate in the project and it did so. Hence the guarantee that Marcan gave in March 1998 to the owners of M.V "Spear"."
52. In my view, the decision of the
judge was entirely justifiable on the limited material before him, bearing in
mind his reasons for cynicism as to the quality of the evidence advanced by
or on behalf of Mr Yamvrias in relation to his assets generally and to
support the claim in respect of the `Ever’ Vessels Project. The letter of
53. In the light of the obvious
difficulty in upsetting the finding of the judge in this respect, Mr Yamvrias
made application at the hearing of this appeal that the court should admit
additional evidence to demonstrate why the judge’s conclusions were wrong, in
the form of witness statements from Mr Yamvrias and Captain Skarvelis. No
explanation has been afforded by Mr Yamvrias or by Mr Gee on his behalf that
the evidence sought to be adduced was not available and adduced below (c.f.
Ladd -v- Marshall  1 WLR 1489). However CPR 52.11(2), which now
governs the admission of such evidence ("Unless it orders otherwise, the
appeal court will not receive evidence which was not before a lower
court") has freed the court from the straitjacket of the `so-called
rules’ laid down in cases such as Ladd -v- Marshall: see Banks -v-
Cox, (17th July 2000 unreported) C.A. per Morritt V-C. In that
decision, the court adopted the statement of May LJ in Hickey -v- Marks
(6th July 2000, unreported)
"Since the Civil Procedure Rules are a new procedural code, the former body of authority will not apply, although of course, the intrinsic persuasiveness of all relevant considerations, including, if they arise, those which were considered persuasive under the former procedure, will be capable of contributing to a just result."
Thus, it is plain, that while the court
will pay regard to the principles in Ladd -v-
54. At the outset of the appeal, with the consent of counsel, we read the further evidence `de bene esse’, without prejudice to the objection of Mr Collins QC on behalf of Yukong that it should not be admitted.
55. The points made by the further evidence are these. First, in relation to paragraph 47 of Toulson J’s judgment (see paragraph 51 above), Mr Yamvrias states that, while Marcan received benefit from the scheme in the form of substantial brokerage (in which respect it acted as shipbroker and not investor) it did not invest in any other sense. He asserts that, even if so disposed, it could not do so, being authorised under the Regulations of the Baltic Exchange to act as a broker or agent only and not as a principal within the Baltic Market. That may or may not be so in the particular circumstances of Mr Yamvrias’ proposed investment. However it was peripheral to the judge’s reasoning as to whether Mr Yamvrias had demonstrated personal loss. Second, so far as his assets are concerned, Mr Yamvrias says that, if the injunction had not been in place, he would have been able to raise the money to make the investment by means of a bank loan backed by the equity in his house (jointly owned with his wife), then some £150,000. This carries the matter little further and fails to address the point which concerned the judge, namely the absence of contemporaneous supporting evidence.
56. Third, the witness statement of
Captain Scarvelis supplies a degree of chapter and verse in respect of the
Contracts of Affreightment Scheme operated by Veritas. He affirms and
exhibits a copy of the faxed letter of 17th October 1997 and
states that, shortly afterwards, Mr Yamvrias advised him that he was unable
to participate in the venture because he was involved in litigation which had
resulted in a block on his assets preventing him from raising the necessary
finance. He states that the first year of the scheme’s operation was
September 1997 - June 1998 and that it yielded substantial profits. He wrote
again to Mr Yamvrias on 23rd September 1998, advising him of the
results and inviting him to participate in the second year of operation, due
to commence on 1st October 1998. Save in two vital respects the
layout and content of the text of that letter are identical to the layout and
text of the letter of
57. In the face of these discrepancies,
Mr Collins submitted that it is plain that the date and text of the letter
exhibited by Captain Scarvelis, rather than the date and text of the letter
exhibited by Mr Yamvrias, are authentic. The first year of operation had not
been completed by 20th May, whereas it had by the 23rd
September. This suggests ex post facto alteration by Mr Yamvrias, not least
because the figures shown for the first year’s profits could not have been
ready by 20th May. Whether or not that was so, it is plain that Mr
Yamvrias was presented with the opportunity to invest in the second year of
operation at a time (September 1998) when he was free of the constraints of
the injunction, it having been discharged by consent on 10th
August 1998 (see paragraph 19 above). Thus, his earlier assertion that the
injunction prevented him from making the investment in the second year is
wholly unsustainable. Mr Gee did his best to argue, but failed to convince
me, that this was not so. In my view the production by Captain Scarvelis of
the letter of
58. I would therefore dismiss this appeal.
LADY JUSTICE HALE: I agree
LORD JUSTICE THORPE: I also agree
Order: Appeal dismissed.
An order for costs on the standard basis.
Permission to appeal refused.
(This order does not form part of approved judgment)
 Così Atiyah, Judgements in England, in Universita’ degli Studi di Ferrara, Facolta’ di Giurisprudenza, La sentenza in Europa. Metodo, tecnica e stile, cit., p. 146.
 Cfr. Taruffo, voce Motivazione, in Enc. giur. Treccani, 1990, p. 2. Sulla motivazione della sentenza inglese v. inoltre Marinari, La motivazione della sentenza ed il confronto con la giurisprudenza inglese, tra requisiti sostanziali e struttura formale, in Corr. giur., 2006, p. 1167 ss.
 Cfr. Marinari, op. cit., p. 1168.
 La banca dati è disponibile ai siti web seguenti:
 Per un dettagliato resoconto della conferenza inaugurale, tenutasi a Parigi nel marzo 2003, si veda la pagina web seguente:
 Cfr. The Lord Irvine of Lairg, Legislators,
 Cfr. The Lord Irvine of Lairg, op. loc. ultt. citt.
 Ma nel senso che non sarebbe possibile paragonare il modo in cui i tribunali inglesi utlizzano le loro leggi con quello in cui i tribunali dell’Europa continentale utilizzano i loro codici cfr. Atiyah, op. cit., p. 149 s.
 Così Atiyah, op. loc. ultt. citt.
 Sul tema si fa rinvio per tutti a Oberto, I procedimenti semplificati ed accelerati nell’esperienza tedesca ed in quella inglese, in Corr. giur., 2002, p. 1239 ss., spec. 1519 ss.; nonché in Aa.Vv., Per una formazione europea dei magistrati, Quaderni del Consiglio Superiore della Magistratura, Vol. V, t. I, 2003, n. 134, p. 551 ss.; dal 30 marzo 2002 al seguente sito web:
 Così Atiyah, op. loc. ultt. citt.
 Atiyah, op. cit., p. 150 s.
 Cfr. le Sections 21, 24 e 35 (1) del Matrimonial Causes Act (1973). Su questo tema specifico v. Salter e Jeavons, Humphreys’ Matrimonial Causes, London, 1989, p. 246 ss.
 Sul tema cfr., per esempio, le osservazioni di De Rooij e Verwilghen, Etude sur les régimes matrimoniaux des couples mariés et sur le patrimoine des couples non mariés dans le droit international privé et le droit interne des états membres de l’Union Europeenne, p. 26 (si tratta del rapport final elaborato per la Commissione U.E., in adempimento di una ricerca commissionata al fine di elaborare le future iniziative di diritto comunitario nel settore); testo disponibile in formato .pdf al seguente sito web:
 Sul problema se la giurisprudenza tedesca interpreti il concetto di Treu und Glauben di cui al § 242 come una norma che fornisce al giudice il potere di scoprire lacune nella legge e di colmarle con il ricorso a giudizi di valore extrapositivi cfr. Rüters, Die unbegrenzte Auslegung. Zum Wandel der Privatrechtsordnung im Nazionalsozialismus, Frankfurt a.M., 1973, p. 48 ss.
 Così Atiyah, op. cit., p. 157.
 Sul tema v. Gorla, La struttura della decisione giudiziale in diritto italiano e nella «Common Law»: riflessi di tale struttura sull’interpretazione della sentenza, sui «Reports» e sul «Dissenting», in Giur. it., 1965, I, 1, c. 1239 ss.
 Sul punto v. ancora Taruffo, voce Motivazione, cit., p. 1 s.
 Il testo delle Civil Procedure Rules 1998 – CPR e delle relative Practice Directions (sostanzialmente delle disposizioni d’attuazione) si trova al seguente sito web: http://www.hrothgar.co.uk/YAWS/. Da rimarcare, in particolare, che in tale sito si rinvengono non soltanto i testi in versione ipertestuale, ma anche una serie di strumenti idonei ad effettuare gli opportuni approfondimenti, quali, ad esempio, un glossario di termini giuridici, una lista di definizioni legali, il testo delle decisioni citate, un’accurata Chancery Guide, completa di indice analitico-alfabetico, corredato dei necessari links ipertestuali, ecc. Un altro sito contenente il testo normativo in esame è il seguente:
 Al sito seguente: http://www.opsi.gov.uk/ACTS/acts1998/ukpga_19980042_en_1
 Cfr. All England Law Reports 1936-All ER 2002 Volume 3, su cui cfr. Marinari, op. loc. ultt. citt.
 Cfr. Gorla, La struttura della decisione giudiziale in diritto italiano e nella «Common Law»: riflessi di tale struttura sull’interpretazione della sentenza, sui «Reports» e sul «Dissenting», cit., c. 1248.
 Cfr. Gorla, La struttura della decisione giudiziale in diritto italiano e nella «Common Law»: riflessi di tale struttura sull’interpretazione della sentenza, sui «Reports» e sul «Dissenting», cit., c. 1249 s.
 Così Atiyah, op. cit., p. 145.
 Cfr. Gorla, La struttura della decisione giudiziale in diritto italiano e nella «Common Law»: riflessi di tale struttura sull’interpretazione della sentenza, sui «Reports» e sul «Dissenting», cit., c. 1251 s.
 Cfr. Gorla, La struttura della decisione giudiziale in diritto italiano e nella «Common Law»: riflessi di tale struttura sull’interpretazione della sentenza, sui «Reports» e sul «Dissenting», cit., c. 1252 s.
 Cfr. Gorla, La struttura della decisione giudiziale in diritto italiano e nella «Common Law»: riflessi di tale struttura sull’interpretazione della sentenza, sui «Reports» e sul «Dissenting», cit., c. 1253.
 Le Practice Directions sono istruzioni impartite dal Head of Civil Justice in nome del Lord Chancellor, in forza del Civil Procedure Act 1997; il testo del Civil Procedure Act 1997, nella parte (Section 5) relativa alla delega per la redazione delle Practice Directions, è disponibile al sito web seguente: http://www.hmso.gov.uk/acts/acts1997/97012--a.htm#5.
 Cfr. la Practice Direction on the form of Judgments, Paragraph Marking and Neutral Citation, disponibile alla pagina web seguente:
 Cfr. Gorla, La struttura della decisione giudiziale in diritto italiano e nella «Common Law»: riflessi di tale struttura sull’interpretazione della sentenza, sui «Reports» e sul «Dissenting», cit., c. 1253 s.
 Da segnalare, in particolare, l’apertura del sito «ItalgiureWeb», alla pagina web seguente: http://www.italgiure.giustizia.it/, per il momento disponibile per i soli magistrati ordinari. Per ulteriori informazioni sui temi dell’informatica giuridica documentale v. per tutti Oberto, Le rôle de l’informatique dans le processus d’élaboration des lois, in Informatica e diritto, 1997, p. 133 ss.; Id., Informatica giuridica e attività normativa, in Giur. it. , 1999, p. 1549; Id., Appunti per un corso di informatica giuridica (A.A. 1998/99), dal 23 gennaio 1999 al seguente sito web:
https://www.giacomooberto.com/appunti/indice.htm; Id., L’Informatique, l’Internet et les Cours Suprêmes d’Europe, in Informatica e diritto, 1999, p. 7 ss.
 Gorla, La struttura della decisione giudiziale in diritto italiano e nella «Common Law»: riflessi di tale struttura sull’interpretazione della sentenza, sui «Reports» e sul «Dissenting», cit., c. 1254 s.
 La pagina della sentenza in oggetto è, più esattamente, la seguente: