E D & F Man Sugar Ltd v Lendoudis
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CHRISTOPHER CLARKE |
| Judgment Date | 10 October 2007 |
| Neutral Citation | [2007] EWHC 2268 (Comm) |
| Docket Number | Case No |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 10 October 2007 |
[2007] EWHC 2268 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
COMMERCIAL COURT
Mr Justice Christopher Clarke
Case No
Stephen Robins (instructed by Jackson Parton Solicitors) for the Claimant
S.J.Phillips and Jessica Sutherland (instructed by Swinnerton Moore Solicitors) for the Defendant
Hearing dates: 24 September 2007
I have before me two applications. The first is an application of 7 th August 2007 by Mr Kryton Lendoudis (“the defendant”) to set aside an order of Mr Justice David Steel made on 24 th May 2007 whereby he ordered, inter alia, (i) that E.D. & F. Man Sugar Limited, (“the claimant”), should have permission to enforce an arbitration award of 16 th March 1994 and a supplementary award dated 14 th April 1994 (“the Awards”); (ii) that judgment be entered in terms of the Awards for $ 295,461.39; (iii) that the defendant should pay interest on the judgment debt at 8% from 16 th March 1994 until payment ; and (iv) that a Greek Court judgment turning the Awards into a Greek executable title should be registered for enforcement in England and Wales.
The second application was made on 19 th September 2007 by the claimant, also seeking to set aside paragraphs 1 – 4 of the order of 24 th May 2007, and asking for judgment to be entered for the claimant for $ 317,731.10
The reason for this paradoxical state of affairs, where both the claimant and the defendant seek to set aside an order that the claimant obtained, lies in the chequered history behind the two applications.
On or about 5 th November 1987 the claimant entered into a contract with the defendant for the provision by him of a vessel to carry a cargo of 12,000 m.t. of sugar from Poland to Jedda. The contract, which was evidenced, by a conline booking note, named the carrier as “Aquarius Red Sea Line”. It contained an arbitration clause providing for disputes to be settled by arbitration in London.
The claimant claimed that the defendant was liable under the contract and had breached it. It began arbitration proceedings against the defendant and appointed Mr Christopher Moss as its arbitrator. The defendant challenged the validity of the arbitration proceedings and the jurisdiction of the arbitrator on the grounds that he was not a party to the contract.
The claimant believed that the proper party to the contract was the defendant or, alternatively, a company of his named Evalend Shipping Co S.A. (“Evalend”). On 20 th January 1988 the claimant applied to the High Court for declarations to give effect to those contentions and for a declaration that the arbitrator had jurisdiction to settle any dispute.
After a contested hearing, at which the defendant was represented and during which he was cross-examined, Mr Justice Evans concluded that he was party to the contract, and made a declaration to that effect. He also declared that Mr Moss had jurisdiction as sole arbitrator to settle any dispute between the claimant and the defendant arising under the contract. The defendant did not appeal that order.
On 16 th March 1994 the arbitrator made the first of the Awards in which he held that the claimant's claim succeeded in full. He awarded and adjudged that the defendant should pay $ 171,268.62 to the claimant together with interest and costs. He corrected a typographical error in the first award by a supplemental award of 14 th April 1994. The defendant did not seek to appeal the Awards, although he continues to deny any liability.
The claimant then took steps to enforce the Awards in Greece. On 12 th May 1995, following a hearing on 30 th March 1995, in judgment 2976/1995 the Court of First Instance in Athens considered an application by the Claimant asking “for the recognition, and declaration as executable in Greece” of the Awards. The dispositive part of the judgment records that the Court:
“Accepts the application
Recognises and declares as executable in Greece the London arbitration award of 16– 3-1994 as amended by the supplementary award of 14–4-94 of the arbitrator Christopher Moss”
The defendant appealed against judgment 2976/1955. On 25 th May 1999, the Athens Court of Appeal dismissed the appeal. The Defendant then appealed to the Greek Supreme Court of the Areopagus. On 27 th June 2001 that Court dismissed the appeal to it.
On 23 rd May 2007, less than six years after the decision of the Supreme Court, but more than six years after the decision of the Court of First Instance, the claimant issued a claim form under Part 8 in the form of an arbitration application. In it the claimant sought an order pursuant to CPR Part 62.18 (c) and section 26 of the Arbitration Act 1950 granting permission to enforce the Awards as a judgment and further or alternatively sought, pursuant to CPR Part 74.3 (c), to register the judgment of the Court of First Instance, as upheld by the Court of Appeal and the Supreme Court. In this respect the claimant relied on Council Regulation (EC) No 44/2001 of 22 nd December 2000 (“the Judgments Regulation”) alternatively the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (“The Brussels Convention”). The arbitration application was supported by the first witness statement of Mr Nicholas Parton of 23 rd May. On 24 th May Steel, J made the order to which I have referred.
The order provided for service of the order, the arbitration application and Mr Parton's witness statement by first class post or courier at the offices of Evalend in Athens. Service took place in accordance with the order. The defendant applied to set aside service of the order within the time limit specified in it.
Each limb of the application was, as the claimant now accepts, defective. The application under section 26 of the Act had become barred pursuant to section 7 of the Limitation Act 1980 which provides that an action to enforce an award, where the submission is not by an instrument under seal, shall not be brought more than six years after the date when the cause of action accrued. The application to enforce the judgment of the Court of First Instance was misplaced. That judgment was a judgment giving judicial recognition to the Awards and thus fell within Article 1 (2) (d) of the Judgments Regulation (“This Regulation shall not apply to: … (d) arbitration”) alternatively Article 1(4) of the Brussels Convention. Neither of these matters was drawn to the judge's attention.
Faced with this problem, the claimant now contends that it is entitled to enforce the judgment of the Court of First Instance, as twice confirmed on appeal, at common law; and that it is entitled to summary judgment.
Neither the claim form nor Mr Parton's first witness statement in support of it gave any indication that the claimant was seeking to enforce the Greek first instance judgment at common law by an action on the judgment. What was sought was leave to enforce the Award under section 26 and recognition of the first instance judgment pursuant to the Judgments Regulation alternatively the Brussels Convention
In his skeleton argument Mr Stephen Robins for the claimant submitted that this does not matter. The claim is an arbitration claim under Part 8 of the CPR: CPR 62.3 (1). Although the claim form did not plead a claim at common law, it did plead the existence of the Greek judgments. But points of law do not have to be pleaded. If, as he put it, “the Defendant persists in this line of argument” (that the common law claim had not been pleaded) the claimant would seek the Court's permission to add the words “or alternatively judgment at common law”. Mr Robins indicated in his oral submissions that he was making such an application, if it was necessary for him to do so.
In Metall und Rohstoff A.G. v Donaldson Lufkin & Jenrette Inc [1990] 1 Q.B. 391 the defendant applied to set aside an order for service of the writ out of the jurisdiction. The Court of Appeal, as the head note reveals, held that, on the submission by the plaintiffs that they had a claim against the defendants for maliciously instituting legal proceedings, the court would assume in their favour that there was such a tort and the plaintiffs could be said to have instituted such proceedings. but it would reject the submission on the ground that the issue could not be raised in the Order 11 proceedings as the plaintiffs had neither raised nor identified the issue in their pleadings.
The reasoning of the Court is set out in the judgment of Slade LJ in which he referred to the observations of Lord Denning, M.R. in In re Vandervell's Trusts (No 2) [1974] Ch 269, 321:
“It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated”.
He went on to say:
“We respectfully agree with this statement as a general proposition. However, it was not made in the context of a pleading intended to be served out of the jurisdiction, to which we think rather different conditions apply. In our judgment, if the draftsman of a pleading intended to be served out of the jurisdiction under Order 11, r. 1 (1) (f) (or indeed under any other sub-paragraph) can be reasonably understood as presenting a particular head of claim on one specific legal basis only, the plaintiff cannot thereafter, for the purpose of justifying his application under Order 11, r. 1 (1) (f). be permitted to contend that that head of claim can also be justified on another legal basis (unless, perhaps, the alternative basis has been specifically referred to in his affidavit evidence, which it was not in the present case). With this possible exception, if...
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