Colliers International Property Consultants (1) & Colliers International Property Consultants Inc. (2) v Colliers Jordan Lee Jafaar Sdn Bhd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE BEATSON,Mr Justice Beatson |
| Judgment Date | 03 July 2008 |
| Neutral Citation | [2008] EWHC 1524 (Comm) |
| Date | 03 July 2008 |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2007 FOLIO 1640 |
[2008] EWHC 1524 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Beatson
Case No: 2007 FOLIO 1640
Mr Geoffrey Zelin (instructed by Joseph & White) for the Claimants
Mr James Collins (instructed by Wragge & Co) for the Defendant
Hearing date: 27 June 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This application arises out of a dispute between members of the Colliers international property consulting group and the defendant, Colliers Jordan Lee Jafaar Sdn Bhd, a former member. The defendant applies to set aside an Order made without notice by Cresswell J on 18 December 2007. The order, made pursuant to section 66 of the Arbitration Act 1996, was that the final Award of an ICC arbitration in London dated [26/31] May 2006 in favour of the claimants against the defendant be entered as a judgment in the terms of the award. The grounds of the application are that the proceedings before Cresswell J were flawed because: (1) the requirements of CPR 62.18 were not satisfied, (2) the claimants did not make adequate disclosure to the judge, (3) the form of the order was defective, and (4) the Order was not properly served on the defendant in Malaysia.
Taking these in turn; the claim form and the witness statement in support of the claim made by Samantha Holland, a solicitor at Wragge & Co LLP, were not signed. Accordingly, it is submitted there was no evidence in support of the claimants' application as required by CPR 62.18(6), or the evidence before the judge was defective. It is also submitted that the claim form is defective because the first claimant, Colliers International Property Consultants, is not a legal entity but is an unincorporated association and because the second claimant is not a member of the Colliers Group but a company formed by members to hold trademarks for the benefit of members. Thirdly, it was submitted that the arbitration agreement was not properly before Cresswell J because only the counterpart signed by the defendant was before him and the exhibits to Ms Holland's statement were incomplete.
As to non-disclosure, it is submitted on behalf of the defendant that the claimants failed in their obligations of disclosure to the court when making an application without notice, in particular because Cresswell J was not told the claim form was to be served on the defendant out of the jurisdiction. This omission and the terms of the draft order provided led him to order (in paragraph 4) that the defendant was to have the right to apply to set aside the order within 14 days rather than the longer period (24 days) which would be appropriate for service out of the jurisdiction in Malaysia. It was also submitted there was incomplete disclosure because not all the arbitration agreement was before Cresswell J, the exhibits to Ms Holland's statement were incomplete.
As to the form of the order, it is submitted that the order is confusing. First, paragraph 2 orders that the judgment be entered within 4 weeks of the Arbitrator's Award but, since the award had been made over 18 months before Cresswell J's order, this was impossible. Secondly, the right to apply to set aside the order was stated in paragraph 4 to be “within 14 days” which did not make it clear that this was from the date of service as opposed to the date of the order.
It was finally argued that the order was not properly served on the defendant in Malaysia inter alia because the documents served on the defendant were incomplete.
The defendant also seeks two further orders. The first is that all further steps towards the enforcement of the Award be stayed pending the determination of proceedings instituted in Malaysia on 10 March 2008 against the members of the Colliers group alleging conspiracy. The second is an extension of time to make an application under section 68 of the Arbitration Act 1996 challenging the award on the grounds of serious irregularity. An application to challenge an Award on the ground of serious irregularity must be made within 28 days of the date of the Award or the date on which the applicant was notified of the result of any appeal or review; here 28 days from 31 May2006.
The claimants accept the claim form and witness statement were defective in not being signed but it is submitted on their behalf by Mr Collins that the order made by Cresswell J should not be set aside on this ground. He argued that the power under CPR 3.10 to remedy procedural errors should be exercised in this case, and that the appropriate remedy was to by afford the claimants 7 days within which to file and serve copies of the claim form and the witness statement verified by a statement of truth. The claimants do not accept any of the other procedural irregularities alleged. They, however, submit that if there are other irregularities, they do not justify the setting aside of the order.
The evidence before me consists of three witness statements by Ms Holland of Wragge & Co., on behalf of the claimants, two witness statements by Samuel Joseph, a partner of Joseph and White, the defendant's solicitors, and affidavits from Rusmah BT Jaafar, an administrative assistant employed by the defendant, and Tangga Peragasam A/L Perianayagam, concerning the time documents came into the possession of Messers Ravi Aida & Partners, the defendant's Malaysian solicitors.
Defects in the claim form and witness statement: I first deal with the absence of signatures on the claim form and Ms Holland's first witness statement. Ms Holland's second witness statement says that she recalls signing the statement of truth on both documents and can only assume that in error an unsigned copy of the documents was filed at court. Mr Collins stated it had not been possible to find the signed copies but invited me to accept Ms Holland's evidence that what had occurred was a clerical error. He accepted that it was an obvious and glaring error but submitted that, although it was not possible to explain how the error occurred, it should be regarded as accidental.
Mr Collins argued that, had the error been spotted by those in the Commercial Court office or by Cresswell J, the application would have been sent back and the error would have been rectified. In these circumstances he submitted it would be disproportionate to set aside Cresswell J's order. He relied on CPR 3. This states that, where there has been an error of procedure such as a failure to comply with a rule or practice direction, the error does not invalidate any step taken in the proceedings unless the court so orders, and that the court may make an order to rectify the error. Mr Collins argued that in the present circumstances in which; (a) the defect in the claim form and the witness statement was accidental, (b) the claimants had offered to pay the defendant's costs in relation to this discrete issue, (c) the defendant has not suffered prejudice from the error because, subject to its submission that time should be extended to enable it to challenge the award under section 68, it is not disputed that the claimants were entitled to an order pursuant to section 66. Mr Zelin did not argue otherwise. He accepted that his objections were to the way matters had proceeded, and that the claimants would not be precluded from serving the claim form again.
Although Mr Zelin maintained that the totality of the procedural errors justified setting aside the order, he did not argue that the omission of Ms Holland's signature verifying her statement and the claim form in itself justified that course of action. This was a realistic stance. It would clearly be disproportionate to set aside the order on this ground. The provisions of CPR 22.2 in relation to failure of statements of case provide some assistance. The usual order, as seen from CPR 22 PD 4.2, for failure to verify a statement of case is to allow the party in default a certain time in which to file a statement of case which is verified, failing which the statement of case is to be struck out. The decision of the House of Lords in Philips v Symes [2008] UKHL 1 shows the breadth of the court's power under CPR 3.10 to remedy procedural errors. In that case, one of the defendants did not receive any of the claim documents posted to it and one was served without a translation of the claim form. Their Lordships said that, where a defendant would suffer prejudice by the exercise of the power under CPR 3.10 (for example, on the facts of that case, by altering the jurisdictional precedence under the Lugano Convention), this should be done only in the most exceptional circumstances. However, they also stated that, in that case, the defendants were not prejudiced by the failure to serve the original claim form but sought to exploit the faults of the Swiss authorities and the Swiss Post Office. Although, in the present case, the fault was that of someone in the claimant's solicitors' office, there is no prejudice to the defendant and thus no reason for adopting a very restrictive approach to the exercise of the remedying power.
Mr Zelin, however, relied on a number of other procedural irregularities and failings which he submitted cumulatively justify setting aside the order. The first of these is his submission that the first claimant is not properly described. Colliers International is not a legal person but an association of independent businesses which have joined...
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