Commonwealth of Australia Interpleader v Peacekeeper International Fzc Uae and Interpleader Enzo Services Ltd Interpleader
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE FOSKETT,Mr Justice Foskett : |
| Judgment Date | 04 June 2008 |
| Neutral Citation | [2008] EWHC 1220 (QB) |
| Court | Queen's Bench Division |
| Date | 04 June 2008 |
| Docket Number | CLAIM NO: HQ07X02113 |
[2008] EWHC 1220 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE MR JUSTICE FOSKETT
CLAIM NO: HQ07X02113
Miss Laura John (instructed by DLA Piper Solicitors) for the Interpleader Applicant
Mr David Herbert (instructed by Maclay, Murray and Spens Solicitors) for the 1 st Interpleader Claimant
Mr Lawrence Power (instructed by Bevans Solicitors) for the 2nd Interpleader Claimant
Hearing date: 21 st May 2008 and 4 th 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.
Introduction
I have before me a number of applications concerning various actual or proposed claims by certain of the parties against others in this matter. What started as relatively straightforward interpleader proceedings brought by the Commonwealth of Australia (“Australia”) are, primarily at the instigation of Enzo Services Limited (“Enzo”), becoming considerably wider in scope than that normally associated with proceedings of that nature. In a broad sense, therefore, I have to determine whether and, if so, to what extent this is either possible or permissible and, if possible or permissible, to what extent it is to be permitted in this case.
The starting point for present purposes is the factual background to the interpleader proceedings. Since there are issues to be determined within those proceedings, irrespective of whether I permit other claims to be incorporated within those proceedings or to be tried at the same time, I will confine myself to the bare essentials.
The factual background
The proceedings relate to 4 armoured vehicles leased by Australia in relation to its role as part of the Coalition Forces in Iraq. The vehicles are in Australia's compound in Baghdad. The vehicles were leased under two separate leasing agreements, each agreement relating to 2 vehicles and each agreement running for a fixed 6-month period from 20 August 2006 to 18 February 2007. The lessor of the vehicles under the two agreements was named as “Amoeba Group” and on 18 August 2006 an invoice was raised on Amoeba Group headed paper for the full leasing costs. At the foot of that headed paper the company name “Amoeba Group Limited” appeared, together with its address in Bristol.
I need not go into much further detail save to say that Australia endeavoured to make payment of the leasing charges in the manner apparently requested on behalf of Amoeba, which involved the use of the name “Enzo” as the “Vendor Business Name” within the electronic transfer system used by Australia, but the transfer was rejected by Amoeba's bank. The sequence of events thereafter involved a suggestion on behalf of those apparently representing Amoeba at the time that Enzo was in the process of taking over Amoeba, the company known as Amoeba Group Limited having, as a matter of fact, gone into liquidation on 28 June 2006. Enzo Services Limited had, I understand, been incorporated about 2 months earlier and at least one person who had been associated with Amoeba, Ms Lindsey Hoggard, became a director of Enzo on 1 June. The fact that Amoeba had gone into liquidation did not become known to Australia until someone acting on behalf of PKI told Australia about this in an e-mail of 24 September 2006. PKI, the full name of which is Peace Keeper International FZC UAE, is a company incorporated in the United Arab Emirates and has, or at least at the material time had, a presence in Baghdad. It also emerged during this period that PKI had originally been the owner of the 4 vehicles and had, on Enzo's case, entered into an agreement for the sale of the vehicles to Amoeba or to Enzo. In short, the circumstances surrounding that agreement of sale are the circumstances giving rise to the issue between PKI and Enzo as to the ownership and/or right to possession of the vehicles. PKI's case, I understand, is that there was no sale (or no effective sale) of the vehicles to Enzo such that it (PKI) was entitled to immediate possession of the vehicles. Enzo's case is that there was an effective sale and an effective lease of the vehicles to Australia such that it (Enzo) was entitled to the return of the vehicles at the end of the lease period. There are significant assertions and counter-assertions concerning the circumstances of the alleged sale, none of which involve Australia.
In circumstances which do not matter for present purposes, full payment under the lease agreements was made by Australia to Enzo in September 2006 before, it would seem, the full story of the dispute between Enzo and PKI emerged. All that needs to be recorded is that, not surprisingly in the circumstances that did unfold, Australia became uncertain as to what should happen to the 4 vehicles when the lease came to an end. A letter from PKI's solicitors dated 23 October 2006 asked Australia to return the vehicles to PKI immediately. Correspondence then ensued with Australia's lawyers in Canberra, DLA Phillips Fox. In due course, DLA Piper UK LLP gave advice to Australia's lawyers and, given the unresolved dispute between Enzo and PKI, wrote to all potentially interested parties in these terms on 16 February 2007:
“My client has in its possession four GMC B6 Suburban Armoured Vehicles (“The Vehicles”) which were leased to my client pursuant to two leasing agreements for the period from 20 August 2006 to 18 February 2007.
Each of Amoeba Group Limited (in liquidation)…, Enzo Services Limited … and Peacekeeper International FZC (“The Claimants”) claim that they are the owners of the vehicles and that the vehicles must be returned to them upon expiry of the leases.
The evidence of ownership provided by each of the claimants to date is inconclusive and my client is currently unable to determine into whose possession the vehicles should be released when the leases end.
In the circumstances, unless this dispute is resolved prior to 18 February, by each of the claimants agreeing which of them is the true owner of the vehicles and jointly notifying my client in writing of the agreement, my client intends:
* To retain possession of the vehicles until either each of the claimants agrees to whom the vehicles belong or a court order is made to determine the ownership of the vehicles; and
* If thought appropriate, to issue interpleader proceedings in this country, naming each of the claimants as a party to such proceedings.
My client proposes that there should be a meeting attended by all of the claimants and/or their legal representatives to be held at [our] offices as soon as possible. The objective of such a meeting is to reach a swift resolution of the dispute and to avoid the expense of litigation and any delay in returning the vehicles to the rightful owner. However, if any of the claimants are not willing to attend a meeting or an agreement is not concluded, interpleader proceedings may ensue.”
I should, perhaps, observe that Enzo had asserted its claim to the right to possession of the vehicles at the end of the lease period in an e-mail from its solicitors to DLA Phillips Fox dated 15 February 2007. It was in these terms:
“I …understand that you have advised my client that at the end of the six month contract, namely on 17 February 2007, the vehicles will be returned to Peacekeeper International (PKI), who were the original owners. These vehicles no longer belong to PKI as they were subsequently sold to Enzo Services Limited by PKI. My client has supplied you with documentary proof to this effect.
I have advised my client that Enzo Services clearly has a legally binding contract with [Australia] for the lease of the four GMC vehicles in question, a fact which has been formally acknowledged in correspondence with [the financial adviser to the Australian Embassy] and that at the expiry of this contract [Australia] is legally bound to return the vehicles to Enzo Services, as their rightful owner. [Australia] has no legal contract with PKI and thus no authority to release vehicles to that entity.
This email is intended to put both you and [Australia] on formal notice … that if the vehicles in question are not returned to Enzo Services on 17 February 2007, Enzo Services will hold [Australia] responsible for their loss and will not hesitate to issue legal proceedings without further notice.”
There was, therefore, a general threat of proceedings for losses sustained if the vehicles were not returned to Enzo although, as a matter of fact, a specific claim for continued lease payments as a contractual claim under the lease was not asserted as such.
No agreement was reached following the suggestion made in the letter from DLA Piper referred to in paragraph 5 above and on 19 June 2007 Australia issued interpleader proceedings naming PKI and Enzo as the two parties contesting ownership and/or the right to possession of the vehicles. I should record that Amoeba's liquidator had decided not to pursue any interest that Amoeba might arguably have had in respect of the vehicles.
On 9 July 2007, following return by PKI and Enzo of their respective Acknowledgments of Service in the interpleader proceedings, the court ordered that a case management conference should take place before Master Fontaine on 21 September 2007. However, a few days before the court made that order Enzo had issued an application for directions returnable before the Interim Applications judge. The application was heard on 30 July 2007 by McCombe J.
The application suggested that a dispute between PKI...
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