Anthony Lombard-Knight and Another v Rainstorm Pictures Inc.
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Ryder,Lord Justice Christopher Clarke |
| Judgment Date | 27 March 2014 |
| Neutral Citation | [2014] EWCA Civ 356 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2013/0447 |
[2014] EWCA Civ 356
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, COMMERCIAL COURT
Mr Justice Cooke
[2013] EWHC 213 (Comm)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tomlinson
Lord Justice Ryder
and
Lord Justice Christopher Clarke
Case No: A3/2013/0447
David Berkley QC (instructed by Richard Slade and Company) for the Appellants
David Chivers QC (instructed by Howard Kennedy FSI LLP) for the Respondent
Hearing dates: 3/4 December 2013
Sections 100–103 of the Arbitration Act 1996 give effect in the United Kingdom to the 1958 New York Convention on the Recognition of Foreign Arbitral Awards. That Convention was first given domestic effect by the Arbitration Act 1975. Section 102 of the 1996 Act provides:-
"(1) A party seeking the recognition or enforcement of a New York Convention award must produce –
(a) the duly authenticated original award or a duly certified copy of it, and
(b) the original arbitration agreement or a duly certified copy of it.
(2) If the award or agreement is in a foreign language, the party must also produce a translation of it certified by an official or sworn translator or by a diplomatic or consular agent."
This almost exactly reproduces Article IV of the Convention. It is immediately apparent that the statutory language embraces two concepts, authentication and certification. The question in this appeal concerns the manner in which a copy of an original arbitration agreement may be duly certified.
Lord Mustill and Steward Boyd QC, in their work The Law and Practice of Commercial Arbitration in England, 2 nd Ed, 1989, remark, at page 425 that:-
"The references to documents being "duly authenticated" or "duly certified" are unfamiliar in an English context, but probably add nothing to the ordinary rules of evidence concerning proof of documents: the most convenient method of proof will generally be by exhibiting the document to an affidavit deposing to its authenticity, accuracy as a copy, or truth as a translation, as the case may be."
Bearing in mind that the statute directly enacts the Convention, the statutory language must of course be given an autonomous meaning, which may be informed by the travaux preparatoires, the decisions on it of foreign courts and the views on it of foreign jurists – la jurisprudence and la doctrine– see Bennion on Statutory Interpretation, 5 th Ed, 2008 at page 682.
Applications for enforcement are dealt with in the Commercial Court in the first instance on paper. CPR 62.18(1)(b) provides that an application for permission under s.101 of the 1996 Act to enforce an award in the same manner as a judgment or order may be made without notice in an arbitration claim form. CPR 62.18(6) provides that an application for permission must be supported by written evidence exhibiting, where the application is under s.101 of the 1996 Act, the documents required to be produced by s.102 of that Act. So here on 4 September 2012 Eder J on the paper application granted leave to the Claimant, Rainstorm Pictures Inc, to enter judgment against the Defendants in the same terms of [sic, scilicet as] the Award made by JAMS [Judicial Arbitration and Mediation Service, Los Angeles, California] on the 26 March 2012. The Order made by Eder J recited:-
"1. Anthony Lombard-Knight shall pay to Rainstorm Pictures Inc the sum of US$ 13,273,000 as compensatory damages for breach of the December 3, 2010 Agreement.
2. Knight and Jakob Kinde shall jointly and severally pay to Rainstorm the sum of US$ 13,511,000 as compensatory damages for breach of the December 23, 2010 Agreement.
3. Knight and Kinde shall jointly and severally pay to Rainstorm the sum of US$ 28,048.87 for its fees and costs of this proceeding."
As required by CPR 62.18(9) and (10) the Order also recited:-
"The Defendants may apply to have this order set aside within fourteen days after service of the order or, if the order is to be served out of the jurisdiction, within such other period as the court may set.
The order may not be enforced until after the end of that period or any application by the Defendant(s) to set it aside has been finally disposed of."
The Agreements of 3 and 23 December 2010, to which reference is made in the Order, were Investment Agreements concluded between Fortnom and Co SA as capital investor and Rainstorm Pictures Inc, the first of which was signed for and on behalf of Fortnom by the First Defendant/Appellant, Anthony Lombard-Knight, as Director of Fortnom, and the second of which was signed for and on behalf of Fortnom by both Lombard-Knight and the Second Defendant/Appellant, Jakob Kinde, as Directors of Fortnom.
The Investment Agreements provided:-
"10. Arbitration
If any controversy, dispute of claim arising out of or relating to this Agreement cannot be settled by the parties through good faith discussion and negotiation, it shall be settled by binding mediation and/or arbitration on an expedited basis in Los Angeles, California under the rules of the JAMS (Judicial Arbitration and Mediation Service). There shall be a single arbitrator mutually selected by the parties (or if the parties cannot agree, then the arbitrator shall be final and binding on the parties, and judgment on the award rendered by be entered in any court having jurisdiction. The losing party in such arbitration shall pay for all costs of the arbitration, including the winning party's reasonable legal fees and costs.
11. Governing Law and Jurisdiction
This Agreement shall be governed by, interpreted and enforced in accordance with the internal laws of the State of California and the Federal laws of the United States applicable therein which are applicable to contracts made and to be fully performed within such state without reference to its conflict of laws provisions. Except as provided in paragraph 9 above, the parties hereby submit to the exclusive jurisdiction and venue of the State and Federal courts located in Los Angeles, California with respect to all matters concerning this Agreement, including, without limitation, the enforcement of any arbitration award. Any process in such proceeding may be served by, among other methods, delivering it or mailing it, by registered or certified mail, directed to, as applicable, the Investor's or Rainstorm's address as designated in this Agreement. Any such delivery of mail service shall have the same effect as personal service within the State of California."
A sole arbitrator was designated in accordance with the Investment Agreements. The arbitrator found, and as far as I know it is in any event common ground, that at the time the Agreements were executed Fortnom and Co SA did not exist. Indeed, so far as I know, it is not suggested that Fortnom has ever existed. The arbitrator determined that, in accordance with the governing law, the signatories to the agreements on behalf of the non-existent entity were bound personally on the contracts.
Section 101(2) of the 1996 Act provides:-
"A New York Convention award may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect."
The without notice application to enforce the award in the same manner as a judgment was made by Claim Form issued on 29 August 2012. The Claim Form included the following statements:-
"Agreements were signed by the respective parties on the 3 and 23 December 2010. These agreements (see attached) expressly stated (Clause 10) that in the event of disputes between the parties binding arbitration would take place at the Judicial Arbitration and Mediation Service ("JAMS") in Los Angeles, California.
A Final Award ("the Award") was made by JAMS on the 26 march 2012 against the Defendants herein (see attached)."
Photocopies of the Agreements were attached to the Claim Form. It is common ground that the photocopies were true copies of the Agreements. A photocopy of the Award was attached to the Claim Form, along with a separate document, entitled "Certification of Award", signed by Karen Beutler, Business Manager of the Los Angeles Resolution Center of JAMS, certifying that this was a true and correct copy of the Award.
The Claim Form was supported by a Statement of Truth, which recited:-
"I believe that the facts stated in these Particulars of Claim are true.
I am duly authorised by the Claimant to sign this statement."
The standard form wording of the Claim Form requires the maker of the Statement of Truth, if he is not the Claimant's solicitor, to state the position or office held (if signing on behalf of a firm or company). The maker of the Statement of Truth was Mr Granville Hodge, who described himself as "Senior Executive".
On 25 September 2012 the Defendants issued an application seeking to set aside the enforcement order made by Eder J. The sole ground relied upon was that enforcement of the award would be "against public policy". This was a reference to s.103(3) of the 1996 Act. For ease of reference I set out the whole of s.103 as it is useful to have in mind the ambit of what is usually the second stage of the enforcement process:-
"Refusal of recognition or enforcement.
(1) Recognition or enforcement of a New York Convention award shall not be refused except in the following cases.
(2) Recognition or enforcement of the award may be refused if the person against whom it is invoked proves—
(a) that a party to the arbitration agreement was (under the law applicable...
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