Albon (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd and another (No 5)
| Jurisdiction | England & Wales |
| Judge | Sir Peter Gibson,Longmore L Jj,Waller |
| Judgment Date | 06 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1124 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2007/2012(Z) & A3/2007/2012 |
| Date | 06 November 2007 |
[2007] EWCA Civ 1124
The Right Honourable Lord Justice Waller, Vice President of the Court of Appeal, Civil Division
The Right Honourable Lord Justice Longmore and
The Right Honourable Sir Peter Gibson
Case No: A3/2007/2012(Z) & A3/2007/2012
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
THE HONOURABLE MR JUSTICE LIGHTMAN
HC05C02150
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Stephen Nathan QC & Mr Neil Kitchener (instructed by Stephens Innocent Llp) for the Appellant
Mr Robert Anderson QC (instructed by Sheridans) for the Respondents
Hearing dates: 24 th October 2007
Judgement
Lord Justice Longmore
This appeal is an interlude in hard fought litigation being case managed by Lightman J in the Chancery Division. It stems from a car dealing relationship between Mr Albon in England and Naza Motor Trading Sdn Bhd (“Naza”) in Malaysia. Practically everything in the relationship is controversial but in broad outline it can be said that Mr Albon provided agency services in England in respect of cars imported by Naza from Malaysia and, at any rate according to Mr Albon, at a later date also in relation to cars exported from England to Malaysia.
Disputes arose between the parties and on 26 th August 2005 Master Bragge granted Mr Albon permission to serve out of the jurisdiction a Claim Form in which Mr Albon claimed against both Naza and Mr Nasim, its controlling director and shareholder, that he had made overpayments to Naza in the course of performing the importation agreement. The grounds, on which that permission was granted, were that the claim was made in respect of a contract which was made in England and/or was governed by English law. On 28 th October there was an attempt to serve the Claim Form on Naza at their office in Malaysia but that purported service was ineffective because the document which was served was marked 'Not for service out of the Jurisdiction' and was un-translated. Naza's solicitors (Finers) on 21 st November pointed out that service was defective and on 14 th December 2005 they withdrew acknowledgements of service which they had needlessly served. Two days later Naza served on Mr Albon a notice of dispute and conciliation prior to arbitration pursuant to an arbitration clause in a written document called a Joint Venture Agreement (“the JVA”) dated 29th July 2003. On 11 th January 2006 Mr Albon's solicitors said that Mr Albon had not signed that agreement; Mr Albon has ever since said that his purported signature on the document was a forgery. On 29 th March 2007 (in his third judgment in this matter) Lightman J held that, since Naza has applied for a stay of the English proceedings, it is for the English court to decide whether the JVA is a genuine document and whether accordingly there is a genuine agreement to arbitrate between the parties. Naza has not yet decided whether to seek permission to appeal this judgment but has agreed (subject to any possible appeal) that it will not invite the arbitration tribunal which has now been appointed to determine that question. It has thus been agreed for present purposes that the question of authenticity will be determined finally by the English courts.
In the fourth judgment of 31 st July 2007 Lightman J decided that, pending the decision as to the genuineness of the JVA, the arbitration should not proceed and he has granted an injunction restraining Naza from pursuing the arbitration pending resolution of that question. It is this fourth judgment that is now under appeal, permission having been granted by Rix LJ limited to the question whether the court had jurisdiction to grant the injunction. He refused permission to appeal the discretionary aspects of the judge's decision and there is now a renewed application to this court on the discretionary issues. He also adjourned to this court an application for permission to appeal the order for costs made in favour of the claimant.
In his third judgment, Lightman J described the issue as to the genuineness of the JVA in the following way:—
“Mr Nasim and a Mr Naidu (an employee of Naza Motors) have made witness statements to the effect that Mr Albon signed the JVA or acknowledged his signature on the JVA in their presence at the offices of Naza Motors in Kuala Lumpur on the 29 th July 2003. Mr Albon has made a witness statement to the effect that he never agreed to or signed the JVA and he suggests that his signature was “lifted” from a document which he signed at about that time at the request of Mr Nasim to be provided to the Malaysian tax authorities. Mr Albon points out a number of features of Naza Motors' case which (he argues) call into question the evidence of Mr Nasim and Mr Naidu. These include that: (1) the JVA was allegedly made on the 29 th July 2003 but according to its terms was deemed to have commenced six years earlier in March 1997. One of Naza Motors' witnesses, Ms Amin, in part of her evidence states that the explanation for this given to her by Mr Nasim is that this earlier date was the date when the importation of cars into the UK commenced. Mr Nasim in his later evidence and Mr Albon however agree that trading only started in November 1997; (2) Naza Motors have produced no other document referring to the JVA; (3) Naza Motors first asserted the existence of the JVA in a letter from their solicitors FSI dated the 22 nd December 2005; (4) though (according to Naza Motors) the JVA was drafted by Mr Naidu who (according to Mr Nasim) “had many years experience in drafting legal documents on behalf of the Naza group of companies” and though Mr Albon, Naza Motors, Mr Nasim and NA Carriage are named as parties, the document is signed only by Mr Albon and Mr Nasim personally, and there is no reference to Naza Motors at all on the signature page; (5) the layout and print of the last (signature) page is not the same as for the previous pages and the last (signature) page is paginated differently; (6) the “draft” which Naza Motors says was produced for discussion prior to finalising the JVA has never been produced; and (7) Naza Motors have refused to permit Mr Albon's expert Mr Brown to take the original JVA away for (non-destructive) testing and to carry out an ESDA test. I cannot resolve the issue of the genuineness of the JVA on the material before me. There must be cross-examination of Mr Albon, Mr Nasim and Mr Naidu and (in all probability) expert evidence. All I can say on the material before me is that the outcome of the trial of the issue is wide open.”
In these circumstances Mr Robert Anderson QC for Mr Albon submits not only that it is a fair inference that the JVA (together with its arbitration clause) is not genuine but a forgery but also that it is a forgery which has been brought into existence in order to defeat the English proceedings which Mr Albon has rightly been given permission to bring. He submits that this is oppressive and vexatious conduct on the part of Naza which justifies the grant of an interim injunction preventing the arbitration from continuing while the question of forgery is decided.
Mr Stephen Nathan QC submits that this is impossibly controversial because it assumes that Mr Albon's forgery contention is correct but that is precisely what is still to be determined. Meanwhile he has a right to arbitrate or at any rate a right not to be restrained from arbitrating since no oppressive or vexatious conduct can be demonstrated to exist. Moreover, the whole scheme of the Arbitration Act 1996 is that arbitrators are autonomous and interference by the court is firmly discouraged, see in particular section 1(1).
These submissions derive...
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