Gian Angelo Perrucci v Orlean Invest Holding Ltd
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 02 August 2022 |
| Neutral Citation | [2022] EWHC 2038 (Comm) |
| Docket Number | Case No: LM-2021-000281 |
| Court | Queen's Bench Division (Commercial Court) |
| Year | 2022 |
[2022] EWHC 2038 (Comm)
HIS HONOUR JUDGE Keyser QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: LM-2021-000281
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT (QBD)
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane, London, EC4A 1NL
Steven Thompson QC and Adam Cloherty (instructed by Bird & Bird LLP) for the Claimant
Andrew Holden and James Bradford (instructed by Grimaldi Studio Legale LLP) for the Defendant
Hearing date: 21 July 2022
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.
HIS HONOUR JUDGE Keyser QC
His Honour Judge Keyser QC:
Introduction
In these proceedings the claimant, Mr Perrucci, claims damages for what he alleges is the repudiatory breach by the defendant, Orlean Invest Holding Limited (“Orlean”), of a consultancy services agreement.
By an application notice dated 28 April 2022 Mr Perrucci applies for summary judgment on the claim pursuant to CPR r. 24.2. (The application is also put on the basis of r. 3.4, but no different or further grounds are relied on in respect of that additional basis and I need not consider it separately.)
Orlean resists that application and, by an application notice dated 26 May 2022, applies for permission to amend its defence in order to raise an additional ground of defence.
Mr Perrucci relies on two witness statements of his own, dated respectively 27 April 2022 and 14 June 2022, and a witness statement from one Mr Harry Harrison dated 19 April 2022. Orlean relies on three witness statements from its solicitor, Mr Michael Bray, of Grimaldi Studio Legale LLP, of which the first and second are dated 26 May 2022 and the third is dated 20 July 2022. In his third witness statement, Mr Bray makes clear that the source of his information and belief is what he has been told by Mr Gianpiero Fiorani, Orlean's CEO.
I am grateful to counsel for their engaging and robust submissions: on behalf of Mr Perrucci, Mr Steven Thompson QC, who appeared with Mr Adam Cloherty; on behalf of Orlean, Mr Andrew Holden, who appeared with Mr James Bradford.
The procedural law
Many cases have explained the correct approach to applications for summary judgment, including the following: ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 at [8]–[10] (Potter LJ); EasyAir Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] (Lewison J), approved by the Court of Appeal in Global Asset Capital Inc v Aabar Block SARL [2017] EWCA Civ 37, [2017] 4 WLR 163; Elite Property Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 204 at [41]–[42] (Asplin LJ, dealing with the similar test for permitting amendment of a statement of case); Skatteforvaltningen v Solo Capital Partners LLP [2020] EWHC 1624 (Comm) at [3]–[4] (Andrew Baker J); Foglia v The Family Officer Ltd [2021] EWHC 650 (Comm) at [11]–[18] (Cockerill J); King v Stiefel [2021] EWHC 1045 (Comm) at [11]–[25] (Cockerill J). There are many other such cases, of course, and I was referred to some of them. I need not set out quotations from the cases, not even Lewison J's classic summary in the EasyAir case. I have the authorities firmly in mind.
It seems to me that the main points for present purposes are as follows. Summary judgment will be given against a defendant on a claim or issue only if the court is satisfied that the defence to that claim or issue has no real, as opposed to fanciful, prospect of success. A defence that is merely arguable but carries no degree of conviction will not have a real prospect of success. The court will not conduct a mini-trial and, in circumstances such as the present, will be mindful that full disclosure has not yet taken place and that there might be more evidence to come. Accordingly, where there are disputed questions of fact, it will not generally attempt to determine where the probabilities lie. However, the court ought to carry out a critical examination of the available material and is not bound to accept the mere say-so of a witness or a party; where it is clear that a factual case is self-contradictory or inherently incredible or where it is contradicted by the contemporaneous documents, the court, after careful consideration of the evidence that is currently before it and having regard to the nature of such further evidence as might reasonably be expected to be available at trial, is entitled to reject that case even on a summary basis. The court will not be dissuaded from giving judgment by mere Micawberism, the chance that something might turn up. Where the claim turns on a point of law or construction that can properly be determined on the available evidence, the court is entitled to go ahead and determine it; though it should be very cautious before making findings of dishonesty on a summary basis. Finally, one should not lose sight of r. 24.2(b): even if the defence has no real prospect of success, the court can only give summary judgment if “there is no other compelling reason why the case or issue should be disposed of at a trial.”
At the hearing before me, the parties were rightly agreed that the test for summary judgment should be considered with reference to the terms of the draft amended defence: as no other potentially relevant considerations such as lateness of the application to amend arise, permission for the amendment ought to be given if but only if the case advanced by the amendment has a real prospect of success. In this regard, it is helpful to note the remarks of Asplin LJ, with whom Hamblen LJ and Nugee J agreed, in Elite Property Holdings Ltd v Barclays Bank Plc in the context of an appeal against a refusal to permit amendment of particulars of claim:
“41. For the amendments to be allowed the Appellants need to show that they have a real as opposed to fanciful prospect of success which is one that is more than merely arguable and carries some degree of conviction: ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472. A claim does not have such a prospect where (a) it is possible to say with confidence that the factual basis for the claim is fanciful because it is entirely without substance; (b) the claimant does not have material to support at least a prima facie case that the allegations are correct; and/or (c) the claim has pleaded insufficient facts in support of their case to entitle the Court to draw the necessary inferences: Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1.
42. The court is entitled to reject a version of the facts which is implausible, self-contradictory or not supported by the contemporaneous documents and it is appropriate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action relied upon.”
Core facts and the claim
Mr Perrucci is an Italian citizen and resident in Switzerland. He has extensive experience in the logistics sector in the oil and gas industry in Africa. He conducts his business through companies, one of which is Finstar Holding Limited (“Finstar”), a company incorporated in the British Virgin Islands.
Orlean is incorporated in the British Virgin Islands. It is a holding company that, through its subsidiaries, offers logistics facilities and services. Orlean's principal subsidiary is Intels Nigeria Limited (“Intels”), which operates oil and gas industry port facilities in Nigeria and elsewhere in West Africa, including in particular Onne Port, Rivers State, Nigeria. The President and majority shareholder of Orlean is Mr Gabriele Volpi. As I have mentioned, the CEO of the Orlean Group is Mr Gianpiero Fiorani.
Until the matters with which this litigation is concerned, Mr Perrucci and Gabriele Volpi were longstanding business associates and close friends. On account of this connection, Finstar acquired a minority shareholding in Orlean and Mr Perrucci became a director and Vice President of Orlean. It is also relevant that, by reason of their long friendship, Mr Perrucci has been close to Gabriele Volpi's children, one of whom is Mr Matteo Volpi.
Orlean's case regarding Matteo Volpi is as follows. Since 2017, shortly after he left his employment with the Orlean Group, Matteo Volpi has been the CEO of a company called IO Materials Services Limited (“IOMS”), a direct competitor of Intels. Intels and IOMS have been engaged in litigation with each other in Nigeria since 2020. Matteo Volpi and Gabriele Volpi have been engaged in litigation and arbitration proceedings with each other since 2018. Mr Perrucci does not entirely accept this case—in particular, he denies that IOMS is a direct competitor of Intels—but for the purposes of this application I shall assume that what Orlean says is correct.
In late 2019 Mr Perrucci resigned as a director and the Vice President of Orlean and Finstar agreed to sell its shareholding in Orlean to that company. The terms on which Mr Perrucci and Finstar would end their existing relationships with Orlean had been discussed and agreed in principle between Mr Perrucci and Mr Fiorani at several meetings at the Hotel Rosa Grand in Milan and, in particular, at a final meeting in November 2019 (“the November Meeting”). The central terms of the arrangement were these: Mr Perrucci would resign from Orlean but would be appointed as a consultant for a four-year term on a remuneration of US $75,000 per month (which was the same as his remuneration as a director); and Finstar would sell its shareholding to Orlean for US $150,000,000, but payment would be deferred for three years and meanwhile Finstar would receive quarterly payments of interest on the...
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