Judgment summaries
2022
Deutsche Bank AG (London Branch) v Central Bank of Venezuela (Cockerill J)
Recognition of judgments – Act of state – One voice doctrine – Claims in rem – Natural Justice – Foreign governments and independence
On remission from the Supreme Court the Court found that certain judgments of the Venezuelan Courts purporting to nullify the executive acts of the individual recognised by the UK government as President of Venezuela were capable of being “quashing decisions”, but found that (i) they were not entitled to recognition as not meeting the criteria for recognition of in personam judgments and as not being the equivalent of judgments in rem which could be recognised and enforced by English courts (ii) if they had been capable of recognition there would have been defences to recognition as recognition would have been contrary to the “one voice” doctrine and the failings in natural justice in each case were serious clear breaches of natural and substantial justice and a denial of a fair trial under Article 6 of the ECHR and would render it inappropriate to recognise them.
The full judgment, [2022] EWHC 2040 (Comm), may be found on the National Archives website.
NDK v HUO and KXF (Foxton J)
Arbitration Award – s.67 Arbitration Act 1996 -Whether arbitrators’ decision that court proceedings had been brought in breach of arbitration clause in a Shareholders Agreement (SHA) raised an issue as to the substantive jurisdiction of the tribunal for the purposes of s30(1) of the Arbitration Act 1996.
Where there was no dispute as to the existence of an arbitration agreement between the parties under which the tribunal had been appointed, but a dispute as to whether the arbitration agreement extended or was capable of applying to particular claims brought by one of the parties in court proceedings, the arbitrators’ decision as to the scope and applicability of the arbitration agreement when granting anti-suit relief raised an issue as to the tribunal’s substantive jurisdiction for the purposes of s.30(1) of the Arbitration Act 1996. Where the shareholders in a private company were required to be parties to the shareholders’ agreement, claims brought in court by one shareholder against another claiming relief by reference to the Articles of Association in respect of matters which also gave rise to breaches of the shareholders’ agreement fell within the arbitration agreement in the shareholders’ agreement (BTY v BUA [2018] SGHC 2013 and Dickson Holding Enterprise Company Limited v Moravia CV [2019] HKCFI 1424 not followed). The fact that the dispute involved an issue with implications for the accuracy or contents of a public register (in this case the register of members of a company) did not raise a sufficient public policy to override the strong public policy under English law of allowing commercial parties to refer their disputes to arbitration and holding them to their agreement to do so (dicta in BTY not followed).
The full judgment, [2022] EWHC 1682 (Comm), may be found on the National Archives website.
The Ecu Group Plc v (1) HSBC Bank Plc (2) HSBC UK Bank Plc (3) HSBC Bank USA, N.A. and Therium Litigation Finance Atlas AFP IC (“Therium”) (Moulder J)
Defendants’ application for a non-party costs order against Therium, litigation funder. Whether Therium jointly and severally liable with the Claimant in respect of the Defendants’ costs, whether liability should be limited to costs incurred from the date of the litigation funding agreement, whether liability of Therium should be limited to its proportion of overall funding, whether Therium should receive credit for ATE insurance (and similar), whether Therium was liable for the outstanding amount of the interim payment.
The full judgment, [2022] EWHC 1616 (Comm) may be found on the National Archives website.
Deutsche Bank AG v (1) Sebastian Holdings, Inc and (2) Mr Alexander Vik (Moulder J)
Application of the Claimant for committal of the Second Defendant, Mr Alexander Vik. The Court found Mr Alexander Vik in contempt of court in that Mr Vik firstly deliberately gave false evidence in response to certain questions at a Part 71 means hearing on 11 December 2015 and secondly failed to produce documents as required by an order of the Court.
The full judgment, [2022] EWHC 1599 (Comm) may be found on the National Archives website.
Bank of America Europe DAC v Citta Metropolitana di Milano (Foxton J)
CPR 15.11 – application to lift automatic stay – whether test for relief against sanctions to be applied – whether test satisfied – whether defendant should be given extension of time for lodging an acknowledgment of service to allow it to bring an out of time jurisdictional challenge
An application to lift the automatic stay imposed under CPR 15.11 was an application for relief against sanctions. It was appropriate to grant relief in this case – the claimants had deliberately allowed the actions to be stayed but had been seeking to address legitimate concerns arising from the equivocal nature of the defendant’s position, albeit by inappropriate procedural means. However, in circumstances in which it had suited both parties to avoid active participation in English proceedings for a long period pending developments in Italy, it was appropriate to grant the defendant an application for an extension of time within which to acknowledge service of the proceedings.
The full judgment, [2022] EWHC 1544 (Comm), may be found on the National Archives website.
ARI v WXJ (Foxton J)
s.16(1) Arbitration Act 1996 – clause 30 of BARECON charterparty form requiring appointment of arbitrator to commence arbitration and requiring other party to appoint its own arbitrator within 14 days failing which the first appointed arbitrator could be designated sole arbitrator – whether defendant had validly appointed its arbitrator within 14 day period – test to be applied
Where an arbitration agreement governed by English law required a party to appoint its arbitrator to commence the arbitration, or provided that a party’s right to appoint an arbitrator would be lost if not exercised within a particular period, the test of whether there had been a valid appointment was to be approached pragmatically. All that was required was an unconditional confirmation of acceptance of the appointment by the arbitrator which was communicated to the other party, or an unconditional confirmation of the arbitrator’s willingness to accept appointment which the appointing party acted on by communicating the appointment to the arbitrator and the other party.
The full judgment, [2022] EWHC 1543 (Comm), may be found on the National Archives website.
National Investment Bank Ltd v Eland International (Thailand) Co Ltd (Foxton J)
Arbitration Act 1996 – interrelationship between ss.18 and 72 – whether effect of order under s.18 to preclude application for declaration under s.72 – whether right to refer dispute to arbitration waived – effect of finding of non-arbitrability by foreign court and whether it gave rise to an issue estoppel
Where the applicant had not participated in the s.18 hearing, the court’s s.18 order did not have the effect of depriving the applicant of its entitlement to apply for relief under s.72. Here the applicant was entitled to a declaration under s.72 that the arbitration tribunal did not have jurisdiction on the basis that the respondents had waived the right to refer the dispute to arbitration by commencing proceedings in Ghana and/or their conduct in those proceedings. The decision of the Ghana court that the claims were not arbitral as a matter of Ghana law did not give rise to an issue estoppel, the issue of public policy being one for the courts of each country.
The full judgment, [2022] EWHC 1168 (Comm), may be found on the National Archives website.
PJSC NBT v Mints and others (Foxton J)
Arbitration award – whether award gave rise to issue estoppel against non-arbitrating parties – test for privity when determining preclusive effect of prior arbitral award and generally – scope and application of “special circumstances” exception to doctrine of issue estoppel when prior determination in arbitration – application of doctrine of abuse of process against background of prior determination in an arbitration award – applications for permission to amend and summary judgment.
The arbitral award did not give rise to an issue estoppel against non-party defendants in subsequent Commercial Court proceedings. Nor was it an abuse of process for those defendants to advance arguments in the Commercial Court proceedings which were inconsistent with the findings of the arbitral tribunal. For that reason, application for permission to amend to plead a case of issue estoppel or abuse of process, and for summary judgment on the amended case, refused.
The full judgment, [2022] EWHC 871 (Comm) (external link) can be found on the National Archive.
Aquavita International SA v Indagro SA (Foxton J)
Anti-suit injunction – Arbitration Agreement – whether proceedings commenced in foreign court to obtain interim order which required mandatory performance of disputed contractual obligation a breach of the Arbitration Agreement – whether interim nature of foreign court’s order constituted “strong reason” for not granting an anti-suit injunction – relevance of availability of relief from English court under s.44 Arbitration Act 1996.
The court held that proceedings commenced in Brazil for an interim order which had the effect of requiring the final performance of a disputed contractual obligation constituted a breach of the arbitration agreement between the parties. Nor did the interim nature of the relief sought provide a “strong reason” for not granting anti-suit relief given the practical effect of the order. For that reason, the court renewed the anti-suit injunction granted by Fraser J on the “without notice” application.
The full judgment, [2022] EWHC 892 (Comm) (external link) can be found on the National Archive.
Invest Bank P.S.C. v Ahmad Mohammad El-Husseini Et Al. (Andrew Baker J)
Enforcement claims that assets are owned beneficially by the first defendant or have been the subject of transactions at an undervalue entered into by him (s.423 Insolvency Act 1986) – whether claims arguable – whether the court should set aside permission to serve out of the jurisdiction and/or refuse permission to amend and/or grant summary judgment against the claimant – whether steps taken by a company, acting by a controlling individual, constitute a transaction entered into by the individual.
Where an individual does no more than act as the instrument by which his company acts, the individual does not enter into a transaction with the company, or with the party with whom the company, thus acting by the individual, deals. On the claimant bank’s proposed pleading: no arguable s.423 claim was raised for most of the assets in respect of which that point had been taken, but there was an arguable s.423 claim in respect of a certain US$15 million cash balance; an arguable claim of beneficial ownership in the first defendant was raised, but limited to an allegation of express trust, in respect of two London properties, but not in respect of certain English company shares.
The full judgment, [2022] EWHC 894 (Comm) (external link) can be found on the National Archive.
Gulfvin Investment Ltd v Tahrir Petrochemicals Corporation S.A.E. et al. (Andrew Baker J)
Permission to serve proceedings out of the jurisdiction – whether England and Wales the most appropriate forum.
The claimant contracted to buy shares in Carbon Holdings Ltd (‘CHL’), the parent of the first defendant (‘TPC’), for US$5 million. It paid the price to a London bank account in TPC’s name as required by the contract but did not receive the promised shares. The claimant claimed damages for deceit against the second and third defendants (Mr El-Baz and Mr Garfinkel) and restitution on the ground of unjust enrichment against TPC. The defendants challenged jurisdiction (CPR Part 11). The restitution claim, if brought on its own, might most appropriately have been brought in this jurisdiction. The deceit claim, if brought on its own, should most appropriately be brought in Texas. The claimant’s position was that it was not appropriate to separate the claims. It had not been shown that this jurisdiction was clearly or distinctly the most appropriate forum for the trial of the action.
The full judgment, [2022] EWHC 1040 (Comm) (external link) can be found on the National Archive.
Unicredit Bank AG v Euronav NV (Moulder J)
Delivery of Cargo without production of bill of lading – Whether Owners liable to financing Bank for breach of contract- Status of bill of lading after the novation of the charterparty by the original shipper such that the Bill of Lading was no longer in the hands of the charterer but remained in the hands of the original shipper- Causation.
The court held that the Bill of Lading did not contain the contract of carriage between the Owners and the lawful holder of the Bill, BP, on or after the date of the novation and prior to the alleged misdelivery. Alternatively, any breach by the owners in discharging the Financed Cargo without production of the Bill of Lading did not cause the loss or in the alternative the Bank would have suffered the same loss in any event.
The full judgment, [2022] EWHC 957 (Comm) (external link) can be found on the National Archive.
Federal Republic of Nigeria v JP Morgan Chase (Cockerill J)
Banking – Quincecare duty – whether agreements were reached in fraud of the FRN – whether D was grossly negligent in making payments pursuant to those agreements – whether court precluded from considering the issue by the foreign act of state doctrine – title to sue – loss – causation – contributory negligence.
The court held that certain 2011 Resolution Agreements relating to a oil concession granted in controversial circumstances in 1998 were not concluded as part of a fraud on the FRN and consequently the Quincecare duty was not engaged. Had there been such a fraud the bank was not on notice of the fraud in 2011 and though on notice in 2013 was not grossly negligent. There would therefore have been no breach of the Quincecare duty (as modified by the contract) had there been a fraud. The court also concluded that it was not precluded from considering these issues by the foreign act of state doctrine, and that as a matter of Nigerian Law that the correct claimant had sued.
The full judgment, [2022] EWHC 1447 (Comm) (external link) can be found on the National Archive.
2021
PCP Capital Partners LLP v Barclays Bank Plc (Waksman J)
Fraudulent misrepresentation – causation and loss – standard of proof in respect of counterfactuals – Claimant unable to prove real and substantial chance of its obtaining necessary non-recourse debt finance to make out case on loss.
When the hypothetical actions of the defendant are in issue, the claimant must prove its case in relation to them on a balance of probabilities. By contrast, insofar as causation of loss depends on the actions of one or more third parties, the claimant must prove that there is a “real and substantial chance” of each third party taking the relevant action. This requires a threshold of more than 10%. On the facts, there was no real chance of the claimant obtaining the non-recourse debt finance necessary to achieve the remuneration that the claimant said would have been obtained, and the claimant would have been in effectively the same position in the counterfactual as it was in the real world.
The full judgment ([2021] EWHC 307 (Comm) (external link)) can be found on the National Archives.
Leeds City Council and Ors v Barclays Bank Plc (Cockerill J)
Misrepresentation – LIBOR manipulation – inducement involves requirement of awareness – assumption or subconscious operation on the mind of the representee insufficient in case of this kind.
As an element of a claim in misrepresentation, inducement involves some requirement of awareness. In some cases, the question will be what the claimant consciously thinks. In others it will be better expressed as whether the representation was actively present in the claimants’ mind. Prior authority on LIBOR and EURIBOR manipulation showed that in cases of this kind subconscious operation on the mind of the represented and/or assumption by the represented is insufficient. As pleaded, the claimants’ cases accordingly had no real prospect of success.
The full judgment ([2021] EWHC 363 (Comm) (external link)) can be found on the National Archive.
Tatneft v Gennady Bogolyubov & Ors (Moulder J)
Article 1064 of the Russian Civil Code – limitation – limitation defence under Russian law not contrary to English public policy despite limitation period running before claimant had knowledge of identity of defendants.
Despite the fact that the limitation period started to run as a matter of Russian law before the claimant had knowledge of the identity of the defendants, the limitation defence was not incompatible with English public policy. Ultimately, it is a matter for each legal system to strike a balance between the competing public and private interests that are engaged by the limitation of claims.
The full judgment ([2021] EWHC 411 (Comm) (external link)) can be found on the National Archive.
Hulley Enterprises Limited and Ors v The Russian Federation (Henshaw J)
Stay of recognition and enforcement proceedings should not be lifted while foreign challenge proceedings ongoing – prejudice to Claimants outweighed by considerations including comity, risk of inconsistent decisions, efficiency and the risk of unfairness if state immunity arguments made prior to findings of Dutch Supreme Court – exercise of powers under s.103(5) would constitute assertion of adjudicative jurisdiction which the Court had not yet held to exist.
Stay on recognition and enforcement of certain foreign arbitral awards should not be lifted while challenge proceedings were ongoing in Dutch Supreme Court. The prejudice to the claimants arising from further delay in potential enforcement measures was outweighed by the advantages of awaiting the ultimate outcome of the viable challenge in the Netherlands, namely: the advantage of allowing the process in the curial court to run its course in the interests of comity; the avoidance of inconsistent decisions, and the avoidance of the risk of prejudicing Russia’s case on state immunity. Court also did not have the power to require security under s.103(5) of the Arbitration Act 1996. The exercise of any powers under s.103(5) would constitute the assertion of an adjudicative jurisdiction over Russia which the court had not yet held to exist. There could be no question of exercising any such powers unless and until Russia’s claim to state immunity had been determined and rejected.
The full judgment ([2021] EWHC 894 (Comm)) can be found on the National Archive.
London Steam-Ship Mutual Insurance Association Limited v The Kingdom of Spain (Butcher J)
Appeal against registration order of Spanish judgment – whether Article 34(1) of the Regulation meant that the Spanish judgment should not be recognised – procedure adopted by the Spanish courts did not involve a breach of human and fundamental rights.
For the purposes of Article 34(1) of Regulation (EC) No. 44/2001, where there is room for serious argument as to whether public policy is contravened then it is most improbable that it can be said enforcement is “manifestly” contrary to public policy. Article 14(5) of the ICCPR, an unincorporated treaty, does not represent a right recognised as fundamental within the English legal order such that it would be contrary to public policy to enforce any judgment based on a conviction rendered in contravention of its terms. Even if it were manifestly contrary to English public policy to recognise a criminal conviction which arose in contravention of the rights afforded to a defendant in criminal proceedings, the same would not apply to civil liability on an insurer such as that found by the Spanish Supreme Court. The fact that the Club could not be said to have availed itself of all the legal remedies available in Spain to prevent the relevant liability and complaints as to fair hearing rights had already been considered and rejected, including by the ECtHR, also weighed against refusal of recognition under Article 34(1). So too did the lack of a plain or obvious factual basis for certain of the fair hearing complaints and the fact it was doubtful that a different course of action would have made any significant difference.
The full judgment ([2021] EWHC 1247 (Comm) (external link)) can be found on the National Archive.
VTB Commodities Trading DAC v JSC Antipinsky Refinery & Ors (Cockerill J)
Court’s jurisdiction to permit Part 20 Claims in the context of a WFO obtained in Arbitration Claim – Claimant does not become Defendant for purposes of Part 20 by reason of third party’s claim in respect of cross-undertaking and directions to file Points of Defence – if jurisdiction exists, significant grounds for caution in granting Part 20 application in context of an Arbitration Claim.
In the context of a trial arising out of a Worldwide Freezing Order with a cross-undertaking granted and other orders made pursuant to an Arbitration Claim under s.44 of the Arbitration Act 1996, the court considered whether the arbitration claimant could join third parties by Part 20. The starting point is that the party claiming under the cross-undertaking should be seen as being in the position of the defendant. Here, this starting point was not displaced by the considerations that: the claim under the undertaking only arose if it transpired the injunction was wrongly granted; attack on the injunction involved resolution of an arguably separate substantive issue which could have been litigated in separate proceedings; the party claiming under the undertaking had sought to obtain early determination of the issues, and the directions in question required the claimant to provide Points of Defence. The court accordingly did not have jurisdiction under Part 20. The court also expressed considerable doubts as to whether there is any jurisdiction to add defendants to or permit Part 20 proceedings in respect of a Part 8 arbitration claim more generally. Any jurisdiction as does exist is one that should be exercised sparingly in light of the very limited role of the supervisory court. It would not have been appropriate to exercise that discretion here. Separately, England was not the forum conveniens due (inter alia) to language issues, the applicability of Russian law and the need for considerable and complex Russian law evidence.
The full judgment ([2021] EWHC 1758 (Comm)) can be found on the National Archive.
Province of Balochistan v Tethyan Copper Co Pty (Robin Knowles J)
Arbitration – jurisdiction – loss of right to object
The respondent to a US$4 billion ICC arbitration award was precluded from raising an allegation of corruption in a s67Arbitration Ac claim as they had failed to raise this before the ICC Tribunal and had done so through an informed choice. Any further right to challenge jurisdiction was barred by s73 Arbitration Act 1996. Further, in arguing that corruption had occurred, the claimant was seeking to impermissibly challenge the merits determinations of the ICC Tribunal.
The full judgment, [2021] EWHC 1884 (Comm) can be found on the National Archive.
Lakatamia v Su (Bryan J)
Civil Fraud – judgment debt – unlawful means conspiracy and dissipation of assets in breach of a WFO – whether the court recognised the deliberate violation of the rights owed to a claimant in a judgment debt – Marex tort – adverse inferences in civil litigation.
The court held that there had been a conspiracy to frustrate the claimant’s efforts to enforce a judgment debt by the dissipation of assets in breach of a WFO. The judgment confirms that English law recognises the tort of intentionally violating a claimant’s rights in a judgment debt (also known as a Marex tort) and outlines the adverse inferences which the court may draw from a defendant’s failure to provide adequate disclosure and to call material witnesses.
The full judgment, [2021] EWHC 1907 (Comm) can be found on the National Archive.
Surkis & Others v Poroshenko & another (Calver J)
Reverse summary judgment – state immunity- foreign act of state doctrine – executive acts- waiver of immunity
Reverse summary judgment was granted on claims against the former president and former bank governor of Ukraine. The claimants’ amended particulars of claim was struck out. State immunity had not been waived by Ukraine. All claims except the lawful means conspiracy claim were also barred by the foreign act of state doctrine and the claims had no real prospect of success.
The full judgment, [2021] EWHC 2512 (Comm) can be found on the National Archive.