Maimann v Maimann

Under art 17 of the Lugano Convention, an exclusive jurisdiction clause covers claims arising out of or connected with the mandate or powers of attorney containing the clause. This includes claims alleging improper use of the mandate, breach of fiduciary duty, breach of trust, conversion, unjust enrichment or constructive trust where the substance of the complaint concerns that mandate.

The applicable Swiss law determined ownership of monies and securities held in Swiss accounts. A person could not maintain conversion or proprietary claims in England concerning property which Swiss law recognised as belonging to that person. A declaration concerning an earlier beneficial interest did not improve the claim where the proceedings concerned later dealings.

Michael Maimann brought proceedings in England against his sister, Monica Maimann, concerning monies and securities held in numbered Swiss bank accounts. The parties had executed powers of attorney containing an exclusive jurisdiction clause in favour of Zurich and subject to Swiss law.

The Deputy High Court judge struck out claims falling within the clause but allowed amendments pleading conversion, unjust enrichment, constructive trust and declaratory relief. Monica Maimann appealed against the refusal to strike out the amended particulars of claim in their entirety. The central issue was whether the amended claims fell within the exclusive jurisdiction clause or could properly proceed in England.

1. Appeal allowed. The claims in conversion, unjust enrichment and constructive trust were struck out, together with the claim for declaratory relief concerning ownership before the relevant transfer.

2. Article 17 of the Lugano Convention, given effect in the United Kingdom by section 3 of the Civil Jurisdiction and Judgments Act 1982, required the English courts to respect the exclusive Zurich jurisdiction clause for disputes arising out of or connected with the powers of attorney.

3. The respondent’s case concerned dealings with assets transferred under the powers of attorney. Any complaint that the mandate had been used improperly, or in breach of fiduciary duty, would arise out of or be connected with the mandate. Such a claim had to be brought in Zurich. The respondent expressly disclaimed any complaint about the initial exercise of the power, and no subsequent event or acknowledgment was pleaded to found an independent constructive trust.

4. Under the accepted evidence of Swiss law, beneficial ownership was not recognised. The respondent became the sole owner recognised by Swiss law when the assets were placed in account 40839, and the appellant became the owner recognised by that law when the assets were transferred to account 42169. The Swiss law was the lex situs. The appellant therefore could not have converted property which, under the applicable law, was her own.

5. The unjust enrichment claim was likewise dependent on an alleged improper use of the mandate and therefore fell within the exclusive jurisdiction clause. The declaration sought concerning ownership before 22 July 1988 did not assist the respondent, because his claims against the appellant were based on later events.

6. Lord Justice Kennedy agreed with Lord Justice Chadwick. The appeal was allowed with costs, subject to detailed assessment not being enforced until determination of the respondent’s liability.

• Court of Appeal (Civil Division): allowed the appeal against the order of Philip Mott QC, sitting as a Deputy High Court judge, and struck out the remaining amended claims.