E D & F Man Capital Markets Ltd v Straits (Singapore) Pte Ltd
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos C,Lord Justice Flaux,Lady Justice Rose |
| Judgment Date | 26 November 2019 |
| Neutral Citation | [2019] EWCA Civ 2073 |
| Date | 26 November 2019 |
| Docket Number | Case No: A4/2019/1783 & A4/2019/1783 (B) |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 2073
THE CHANCELLOR OF THE HIGH COURT
Lord Justice Flaux
and
Lady Justice Rose
Case No: A4/2019/1783 & A4/2019/1783 (B)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
MR DANIEL TOLEDANO QC (Sitting as a Deputy Judge of the High Court)
CL2017-000782
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Lewis QC & Mr Andrew Dinsmore (instructed by Reed Smith LLP) for the Appellant
Mr Huw Davies QC & Mr John Robb (instructed by Clyde & Co. LLP) for the Respondent
Hearing date: Tuesday 5 November 2019
Approved Judgment
Introduction
This is an appeal by the tenth defendant (to which I will refer as “Straits”) against the Order dated 4 July 2019 of Daniel Toledano QC sitting as a Deputy High Court Judge in the Commercial Court dismissing Straits' challenge to the jurisdiction of the Courts of England and Wales pursuant to CPR Part 11. Permission to appeal was granted by Henderson LJ. The appeal (like the challenge itself) is limited to a contention that the third requirement for grant of permission to serve out restated by Lord Collins in AK Investments v Kyrgyz Mobil [2011] UKPC 7 has not been met, in other words the requirement that England is the proper place in which to bring the claim. It is accepted by Straits that the first two requirements are met, namely that there is a serious issue to be tried on the merits in relation to each of the alleged causes of action and that there is a good arguable case that each cause of action falls within one or more of the jurisdictional gateways under CPR PD6B. In this case, it is accepted that there is a good arguable case under the necessary or proper party gateway in PD6B paragraph (3).
The factual background to the claims of the claimant (to which I will refer as “MCM”) are set out at [4] to [10] of the judge's judgment and it is unnecessary to repeat that background here. By way of overall summary, MCM claims that it has been the victim of a US$284 million fraud perpetrated by the defendants.
Procedural history in Singapore and England
To make the present appeal comprehensible it is necessary to set out the procedural history in a little detail, although much of what follows is derived from the judgment, for which I am grateful.
On 25 May 2017, MCM commenced pre-action disclosure proceedings in Singapore against Straits (in OS [Originating Summons] 533) seeking various categories of documents and seeking to administer interrogatories. As the judge found at [21] and [22] of the judgment, under the relevant Singapore law there was only jurisdiction to make such an Order in respect of intended proceedings in Singapore, not elsewhere, and the relevant rule of Court (O. 24 r.6) required an application to be supported by an affidavit stating whether the person against whom the order was sought was likely to be party to subsequent proceedings in the Singapore Court. MCM accepted before the judge that, when it issued OS533, its provisional intention was to commence substantive proceedings against Straits in Singapore if such proceedings were justified by the evidence. Straits filed affidavit evidence in opposition from Ms He contending that MCM was not entitled to the information and documents requested.
On 21 December 2017, MCM commenced proceedings in England against Come Harvest and Mega Wealth (the first and second defendants), only asserting causes of action in deceit and unjust enrichment. The Master Agreements between MCM and those two defendants were governed by English law and provided for the exclusive jurisdiction of the Courts of England and Wales. These English proceedings were not disclosed by MCM to the Court in Singapore until 7 March 2018, even though Straits was seeking discovery from MCM in OS533 of what proceedings it was taking worldwide. On 14 June 2018, MCM told the Court in Singapore that the English proceedings were “strictly irrelevant” so far as Straits was concerned. The judge found at [23] that by issuing and pursuing OS533 and by indicating to the Singapore Court that the English proceedings were irrelevant so far as Straits were concerned, MCM gave the impression to the Singapore Court that it intended to pursue any proceedings against Straits in Singapore, as was indeed its intention prior to August 2018. There is no suggestion that MCM misled the Singapore Court in that regard.
On 13 August 2018, Assistant Registrar Zeslene Mao dismissed MCM's application in OS533. MCM appealed against that decision on 24 August 2018. In the meantime, the first and second defendants had served their Defence in the English proceedings on 28 June 2018. This appeared to implicate Straits in the alleged fraud perpetrated on MCM. Other documentation not previously available to MCM had also been obtained. For those reasons, by September 2018 MCM had changed its mind about commencing substantive proceedings against Straits in Singapore and had decided to apply to join Straits, together with various other entities allegedly implicated in the fraud, as defendants to the English proceedings.
Accordingly, on 7 September 2018, MCM filed an application to amend its Particulars of Claim in the English proceedings to join the third to tenth defendants and to serve those proceedings on those defendants out of the jurisdiction. In its draft amended pleading and the evidence in support of its application, MCM relied upon the material which had been disclosed by Ms He in OS533 in Singapore. In its application, MCM accepted that it would discontinue the appeal in Singapore against the dismissal of OS533. MCM's application was not resisted by the first and second defendants. It came before the judge on an ex parte basis on 23 November 2018. He granted permission to amend to join the other defendants including Straits and granted permission to serve out.
On 24 January 2019, Straits issued its application under CPR Part 11 challenging the jurisdiction of the English Court. This had two particular aspects: (i) Straits contended that in using material disclosed by Ms He in Singapore MCM had breached an implied undertaking to the Singapore Court about the use of such material, so that the 23 November 2018 Order of the judge could not stand and should be set aside in its entirety; and (ii) Straits contended that by issuing and pursuing proceedings for pre-action disclosure in Singapore, MCM had exercised a choice in favour of any substantive proceedings against Straits in Singapore, such that it could not change course and now pursue Straits in England.
So far as developments in Singapore are concerned, on 11 February 2019, MCM discontinued its appeal against the dismissal of its application in OS533. On 1 March 2019, Straits issued a summons for an anti-suit injunction seeking to restrain the English proceedings against it and an injunction restraining the use of the materials obtained in OS533. By an Order dated 31 May 2019, the Singapore High Court (Aedit Abdullah J) granted an injunction restraining MCM from using in the English proceedings any of the material covered by the implied undertaking, but refused to grant the anti-suit injunction sought.
In dismissing the application for an anti-suit injunction, the judge said:
“5. As for the Anti-suit injunction, I was not persuaded that Singapore was the clearly more appropriate forum. There were factors, relied on by [Straits], which pointed to Singapore; but just as much there were factors pointing instead to England. It suffices to note that given this close balance, the Defendant did not make out the first requirement for the issuing of an ASI.
6. Additionally, I would note that none of the factors relied on by the Defendant were to my mind sufficient in any event to establish vexation and oppression of the degree that would justify the issuing of an anti-suit injunction. The mischief or conduct raised could be better and specifically targeted by the injunction against use of documents.”
In view of the injunction restraining the use of the material disclosed by Ms He, by the time that Straits' jurisdiction challenge was heard by the judge on 20 June 2019, MCM had amended its draft pleading against the third to tenth defendants and its evidence in support of permission to serve out of the jurisdiction in order to redact any reference to that material. The proposed amendments with redactions were provided to Straits before the hearing. On 14 June 2019, Butcher J had refused an application by Straits for an adjournment of its jurisdiction challenge. He held that the hearing had been fixed for some time and that issues as to redaction could be adjudicated on at the hearing.
The judgment
Having set out the background and the procedural history, the judge dealt first with the submission by Straits that the 23 November 2018 Order could not stand and should be set aside in its entirety. The judge recorded at [26] that MCM did not dispute that it should not have used the material and had now redacted it. Its use was through an inadvertent mistake. On the basis of Singaporean legal advice (in respect of which privilege was not waived) it had considered itself at liberty to refer to the He affidavit on the basis that it had been voluntarily disclosed by Straits.
The judge rejected Straits' submission at [31] to [33]. He noted that MCM contended that permission to serve out on 23 November 2018 could be justified without any reference to the He material and if that was right Straits would be asking the Court to set aside the Order and service pursuant to it only for permission to be re-granted on the basis of the redacted material now before the...
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