Read the full judgment text of CACV 269/2010 on BabelCite. This Court of Appeal judgment was delivered on 6 July 2011 before Tang VP, Fok JA.
Civil procedure – Mareva injunction in aid of foreign proceedings – High Court Ordinance (Cap 4) ss. 21L and 21M – MTIC carousel fraud – VAT refunds totalling approximately £40.4 million – English action for damages for unlawful means conspiracy – Rule 3 in Dicey, Morris and Collins on the Conflicts of Laws – English courts have no jurisdiction to entertain an action for the enforcement, directly or indirectly, of a penal, revenue or other public law of a foreign state – whether the English proceedings are capable of giving rise to a judgment enforceable in Hong Kong – whether HMRC's claim is in substance for unpaid VAT or for damages for conspiracy – held that the claim is for the refund actually paid to the brokers and is analogous to a robbery of HMRC's cash, not a tax recovery claim – Revenue and Customs Commissioners v Total Network SL [2008] 1 AC 1174 applied – Government of India v Taylor [1955] AC 491 and the Buchanan/Frandsen line of cases considered but distinguished – circular movement of goods and funds in carousel fraud – brokers (Movil 2000, Amber) plausibly not innocent parties – Optigen Ltd v Customs and Excise Comrs distinguished – English action found not to be barred by Rule 3 on a strike-out application – leave to appeal and extension of time – respondents failed to apply for leave to Recorder within 14 days under RHC Order 59 rule 2B – delay of over two and a half months due to misunderstanding of the rules – good arguable case test for jurisdiction to grant Mareva injunction – respondents cannot show reasonable prospect of success – leave to appeal refused – costs nisi in favour of HMRC.
Legal issues: Whether HMRC's claim in the English action constitutes indirect enforcement of foreign revenue law barred by Rule 3 · Whether leave to appeal and extension of time should be granted
Outcome: Leave to appeal refused; appeal by the 1st Respondent against the dismissal of his strike-out application is dismissed.
Cited by 1 case