GPGC Ltd v The Government of the Republic of Ghana
| Jurisdiction | England & Wales |
| Judge | Master Davison |
| Judgment Date | 12 October 2023 |
| Neutral Citation | [2023] EWHC 2531 (Comm) |
| Court | King's Bench Division (Commercial Court) |
| Docket Number | CL-2021-000629 |
[2023] EWHC 2531 (Comm)
Master Davison
CL-2021-000629
IN THE HIGH COURT OF JUSTICE
BUSINESS & PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
IN THE MATTER OF THE ARBITRATION ACT 1996
AND IN THE MATTER OF AN ARBITRATION CLAIM
Royal Courts of Justice
Rolls Building, Fetter Lane, London EC4A 1NL
Mr James Willan KC and Ms Catherine Jung (instructed by Stephenson Harwood) for the Claimant
Mr Stephen Houseman KC and Mr Luke Tattersall (instructed by White & Case) for the Defendant
Hearing date: 29 September 2023
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 is my judgment on an application to set aside an order permitting service of documents by an alternative method. The documents were served in the course of enforcement proceedings and the effect of the application, if upheld, would be to send those enforcement proceedings back to square one. I will first set out the essential background. On 26 January 2021, GPGC (a majority-owned Trafigura entity) obtained a final award in its favour against the Government of Ghana (“Ghana”) in arbitral proceedings seated in England. The award was for approximately US$140m. It arose out of a written agreement for the installation and operation of two power plants, which Ghana (as the tribunal found) had unlawfully terminated prior to the expiry of the contractual term.
On 4 November 2021, Cockerill J made an ex parte order (“the Cockerill order”) granting (i) GPGC leave pursuant to section 66(1) of the Arbitration Act 1996 to enforce the award in the same manner as a judgment or order of the High Court; (ii) judgment in the terms of the award. GPGC served the Cockerill order in accordance with section 12(1) of the State Immunity Act 1978 (“the SIA” or “the 1978 Act”), which provides, in relevant part, as follows:
“(1) Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or other document is received at the Ministry.
(2) Any time for entering an appearance (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the writ or other document is received as aforesaid.
(4) No judgment in default of appearance shall be given against a State except on proof that subsection (1) has been complied with in the case of those proceedings.”
Service was effected by this method on 10 May 2022; (so it took about 6 months). The deadline for challenging the Cockerill order was 2 months and 22 days after service – the two months having been added to the normal deadline by virtue of section 12(2). The deadline date was 1 August 2022. No challenge was made.
On 17 March 2022, GPGC issued applications for charging orders in relation to five London properties in which Ghana had a freehold or leasehold interest. On the same day, GPGC also issued an application for alternative service pursuant to CPR rule 6.15. On 11 April 2023 (having first forwarded the charging order applications to the FCDO for comment in accordance with paragraphs 22.99 to 22.102 of the King's Bench Guide), I made interim charging orders and directed that a hearing to determine whether those ICOs should be made final would be listed for 30 May 2023.
On 28 April 2023, Robin Knowles J made an order (“the Knowles order”) permitting alternative service upon Ghana by (i) post to its London High Commission addresses; and (ii) email to a series of addresses listed in the order and its appendix.
GPGC served the ICOs, the Knowles order and other related documents on 5 May 2023 by post and by email. In response to one of those emails, Stephenson Harwood (GPGC's solicitors) received responses from Grace Mbrokoh-Ewoal, a legal counsel in the Ministry of Finance (whose email address was one of those listed in the appendix to the Knowles order). In particular, Ms Mbrokoh-Ewoal sent an email on 5 May 2023 specifically acknowledging receipt of the documents. On 24 May 2023 Stephenson Harwood received an email from White & Case stating that it expected shortly to receive instructions to act for Ghana and seeking to agree a revised timetable in relation to GPGC's applications. The 30 May 2023 hearing was subsequently vacated by consent.
On 23 June 2023, Ghana issued an application to set aside the Knowles order. That is the application before me. The substantial basis for the application was that GPGC had been obliged to serve not only the Cockerill order but also the applications for the charging orders and the ICOs themselves by the diplomatic procedure set out in section 12(1) of the 1978 Act.
On 21 July 2023, Ghana filed the objections it wished to raise in relation to making the ICOs final. On 2 August 2023, (and as had been foreshadowed in the charging order application for that property), GPGC made an application for a receivership order in relation to Ghana's leasehold interest in one of the London properties, Regina House.
Grounds relied upon in support of the application to set aside the Knowles order
As stated above, Ghana's position is that the applications for charging orders over land and (as respects Regina House) the receivership application were all required to be served through diplomatic channels because each application engaged section 12(1) SIA 1978. And even if section 12(1) was not engaged, CPR rule 6.44 (see below) was engaged and could only be displaced under CPR rule 6.15 (as read with rule 6.27) if there was “exceptional reason”.
GPGC's position is that the “writ or other document required to be served for instituting proceedings” against Ghana for the purposes of section 12(1) was the Cockerill order, which was served through diplomatic channels. The applications for charging orders and a receivership order were simply steps in the enforcement proceedings so instituted and could therefore be served by one of the ordinary methods of service, or by alternative service. CPR rule 6.44 simply reflected and was coterminous with section 12(1) and so did not present GPGC with a further hurdle substantially to the same effect as section 12(1) itself. But, if it did, it could be displaced for “good reason” (the actual wording of CPR rule 6.15), which test was amply met.
In serving the Cockerill order via diplomatic channels in compliance with section 12(1) of the SIA 1978 GPGC was following the principle established in General Dynamics United Kingdom Ltd v State of Libya [2021] UKSC 22 [2022] AC 318. In that case, Teare J had dispensed with diplomatic service of an arbitration claim form and enforcement order because of the state of civil unrest and instability in Libya. Libya applied to set aside Teare J's order on the basis that diplomatic service under section 12(1) SIA was mandatory. General Dynamics' response was that the arbitration claim form did not have to be served (see CPR rule 62.18(1)) and the order giving permission to enforce the award was not one “instituting proceedings”. Therefore section 12(1) was not engaged. This argument found favour with the minority. The majority however held (quoting from the Headnote in the Appeal Cases report) that “in the particular context of proceedings to enforce an arbitral award against a state, the need for proper notice and a fair opportunity to respond required that the state be served with either the arbitration claim form, in a case where the court required the claim form to be served, or, if it did not so require it, the order granting permission to enforce the award; that in either case that document was a ‘document required to be served for instituting proceedings against a state’ and fell to be served in accordance with section 12(1)”.
General Dynamics United Kingdom Ltd v State of Libya did not directly confront the issue that Ghana has raised in this application, perhaps put most pithily in paragraph 6(b) of Mr Houseman KC's Supplemental Note for the hearing, viz: “What matters post-Libya is whether “distinct” proceedings are initiated against a sovereign state, i.e. proceedings of a kind which international comity, sovereign equality, administrative practicality and due process require to be brought to that state's attention by the formal means of diplomatic service”. Mr Houseman KC submitted that the essential focus in the Libya case was on the “nature and substance” of the legal process before it. Here, he submitted, the Cockerill order was an adjudicative process which led to a final monetary judgment. What then followed was “enforcement in the strict sense” involving one or more “distinct process[es]”. These processes engaged section 12(1) because each was a separate set of “proceedings” for the purposes of the section. By contrast, Mr Willan KC submitted that the applications for interim charging orders were merely steps within the existing “arbitration enforcement proceedings” (the wording of CPR rule 62.17).
Discussion
The starting point is that the statutory perspective of section 12 is the commencement of proceedings. The document(s) requiring service through diplomatic channels are “any writ or other document required to be served for instituting proceedings against a State” and it is the “time for entering an appearance” which, by section 12(2), is stipulated to be extended by a period of 2 months. In most cases, the “writ or other document” will be a form of originating process, classically a claim form. But it...
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