Cunico Resources NV v Konstantinos Daskalakis Arvind Mundhra
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Baker |
| Judgment Date | 20 February 2019 |
| Neutral Citation | [2019] EWHC 345 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 20 February 2019 |
| Docket Number | Case Nos: CL-2017-000402 & CL-2018-000025 |
[2019] EWHC 345 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London EC4A 1NL
Mr Justice Andrew Baker
Case Nos: CL-2017-000402 & CL-2018-000025
Thomas Grant QC and Caley Wright (instructed by Hogan Lovells International LLP) for Cunico Resources NV and Cunico Marketing FZE
Alain Choo Choy QC (instructed by Wallace LLP) for the Defendants
Edmund King QC (instructed by Wilmer Cutler Pickering Hale and Dorr LLP) for Feni Industries AD
Hearing date: 18 February 2019
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
This judgment deals with consequential matters in relation to my order dated 7 December 2018 in the 2018 Claim (‘the December Order’) and my orders, one in the 2017 Claim and one in the 2018 Claim, dated 18 January 2019 (‘the January Orders’). The judgments upon the basis of which those orders were made are [2018] EWHC 3382 (Comm) (‘the December Judgment’) and [2019] EWHC 57 (Comm) (‘the January Judgment’). The parties will not need me to reiterate the background or explain the proceedings. If anyone outside the case is interested in this further decision, I refer them to those previous judgments for context.
By the December Order, I dismissed an application by Marketing for judgment in default against Mr Daskalakis pursuant to CPR 12.3(1) and an application by Mr Daskalakis for an extension of time for filing acknowledgment of service, and I dismissed (in substance) an application by Mr Daskalakis for relief from sanctions in respect of the late filing of his acknowledgment of service.
Mr Daskalakis was granted limited relief from sanctions, waiving timeliness of acknowledgment of service as a requirement under CPR 11(2) of entitlement to challenge jurisdiction under CPR 11(1). However, Marketing volunteered and accepted that Mr Daskalakis' failure to file timely acknowledgment of service should not shut him out from challenging jurisdiction. If he had not sought more wide-ranging relief from sanctions, minimal cost would have been incurred in respect of his application and that cost would have been for his account as the applicant in need of relief from sanctions on what would then have been an application uncontested by Marketing.
By each of the January Orders, I declared that the court did not have jurisdiction to try any of the claims pleaded in the respective Claim and set aside the Claim Form and service on each of the defendants.
The consequential matters to be addressed now are:
i) Permission to appeal, and the related question of the time for any appellant's notice. Marketing sought permission to appeal all three Orders. No other party sought permission to appeal.
ii) Costs. Various applications and cross-applications were made.
Permission to Appeal – December Order
There would be two aspects to an appeal by Marketing against the December Order, i.e. an appeal against the dismissal of its application for judgment in default: firstly, the question of importance as to the meaning and effect of CPR 12.3(1), upon which different views have been taken; secondly, the question of jurisdiction. The December Judgment dealt only with the first of those questions, since my answer to it was sufficient to determine the default judgment application against Marketing. As I said at [98], “ Had the application for default judgment not failed for other reasons, … I could not have disposed of it prior to giving judgment on [the] jurisdiction challenge”.
Mr Grant QC provided me with draft Grounds of Appeal and a separate Skeleton Argument in support of his application for permission to appeal against the December Order dealing with the first question (the meaning of CPR 12.3(1)). That Skeleton Argument seemed to me apt to stand as Marketing's Skeleton Argument on appeal (with or without permission having been granted by me, as the case may be), perhaps with some minor editing or tidying up, so that in principle Marketing ought to be in a position to file any appellant's notice very promptly now.
On the substance of the argument there outlined, as with the argument at the original hearing, it did not seem to me to grapple with the difficulty, standing in the way of the ‘third meaning’, of the language (and grammatical structure) used in CPR 12.3, or therefore to explain satisfactorily why rejection of the ‘second meaning’ (one element of Marketing's argument being to endorse my concerns about that meaning) leads to the ‘third meaning’ rather than to the ‘first meaning’. In particular, there was repeated emphasis upon CPR 3.8(1) that I found unpersuasive since it begged the question (i.e. the question of the meaning of CPR 12.3(1)). That said, and in view of my conclusions and observations in the December Judgment at [89]–[92], Mr Grant QC was pushing at an open door in his submission that, all things being equal, the question of the proper meaning of CPR 12.3(1) merited permission to appeal.
All things are not equal, however, because of the second aspect of any appeal, if there is to be one. Marketing cannot ask for the dismissal of its application for default judgment to be reversed unless it can persuade the Court of Appeal that the court has jurisdiction over the 2018 Claim. That stands decided against Marketing by the January Order in the 2018 Claim. Mr Grant QC also provided me with draft Grounds of Appeal, and another separate Skeleton Argument, addressing the question of jurisdiction over Marketing's claims. Those were presented as supporting an application for permission to appeal the January Order in the 2017 Claim only; but Mr Grant QC explained at the hearing – and this echoes the way in which the jurisdiction issue has been dealt with generally – that Marketing would advance the same grounds and argument in support of an appeal against the January Order in the 2018 Claim, and he accepted that only if such an appeal were to succeed could he ultimately ask the Court of Appeal to allow an appeal against the December Order.
For the reasons I give below, I was not persuaded to grant permission to appeal against the January Orders. Mr Grant QC and Mr Choo Choy QC agreed that in those circumstances, it would be unhelpful to oblige the parties to incur further costs in respect of an appeal against the December Order at this stage. It will be a matter for Marketing whether it pursues an application to the Court of Appeal for permission to appeal against the January Orders. If it does so successfully, that would be the appropriate time for any appeal against the December Order to be taken further, with case management in the appeals to bring them together for a single hearing (I would imagine, although ultimately that would be a matter for the Court of Appeal).
In those circumstances, the order as to permission to appeal against the December Order will be that:
i) Marketing has permission to appeal conditional upon (a) the Court of Appeal having granted (if it does) permission to appeal against the January Order in the 2018 Claim and (b) Marketing not filing any appellant's notice in respect of the December Order until that condition (a) has been satisfied (if it is).
ii) The period within which Marketing must file any appellant's notice in respect of the December Order shall be a period of 14 days following the grant to it by the Court of Appeal of permission to appeal against the January Order in the 2018 Claim.
For completeness, in relation to paragraph 11(ii) above, that order can of course be made in this court, pursuant to CPR 52.12(2)(a), and does not have to be made at the hearing when the order to be appealed against is made. For the avoidance of doubt, however, since both the December Judgment and the January Judgment were handed down, and the December and January Orders were made, without attendance by the parties, I did specify in the December and January Orders that the consequential matters to be dealt with at this further hearing would include setting a time limit for appellant's notices, if any.
Permission to Appeal – January Orders
In relation to the January Orders, I start with that same question of time, under CPR 52.12(2)(a). The default rule (if no order is made under CPR 52.12(2)(a)) is that appellant's notices must be filed within 21 days after the decision appealed against (subject then to any application made to the appeal court for an extension of time): CPR 52.12(2)(b).
In the present case, I would have been minded to allow more time than that (if sought), under CPR 52.12(2)(a), had the parties been available to attend and deal with consequentials when the January Judgment was handed down. In the event, of course, Marketing has now had the January Judgment for a month and in its draft Grounds of Appeal and separate Skeleton Argument in support of the application for permission to appeal most of the work has been done that is required for it to be in a position to file an appeal (if so advised), including its application for permission to appeal, with the Court of Appeal.
In those circumstances, I put to Mr Grant QC that Marketing ought to be able to file within 7 days of the hearing this week, but he sought and I am content to grant 14 days, i.e. until 4 March 2019. The order under CPR 52.12(2)(a) in each Claim will be, therefore, that Marketing must file any appellant's...
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