IMS S.A. and Others v Capital Oil and Gas Industries Ltd
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Popplewell |
| Judgment Date | 28 July 2016 |
| Neutral Citation | [2016] EWHC 1956 (Comm) |
| Docket Number | Case No: CL-2015-000082 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 28 July 2016 |
[2016] EWHC 1956 (Comm)
The Hon. Mr Justice Popplewell
Case No: CL-2015-000082
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr J Kenny QC (instructed by Waterson Hicks) for the Claimants
Mr J Cutress (instructed by Ascendo Consulting Ltd) for the Defendant
Hearing date: 15 July 2016
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
The Second to Fifth Claimants ("the Owners") are Liberian one ship companies which at the material time owned the vessels "ROFOS", "XIFIAS", "HELI", and "PANTHER" respectively. The First Claimant ("IMS") is a Liberian company which manages the Owners from an office in Piraeus, Greece. The Defendant ("Capital") is a company registered in Nigeria which carries on business in Nigeria as an importer of oil cargoes.
There are two applications before the Court:
(1) Capital's application dated 8 April 2016 challenging jurisdiction on forum non conveniens grounds;
(2) the Claimants' application dated 6 May 2016 for summary judgment under part 24 of the Civil Procedure Rules.
The claim in these proceedings is for US$5.8m, being the outstanding balance of US$6 million payable in accordance with the terms of a document entitled "Confidential Deed of Settlement" bearing the date 23 January 2013 ("the Settlement Deed"). The Claimants' case is that the Settlement Deed was executed on 24 January 2013 on behalf of all parties. Capital's case is that the document was not executed by or on behalf of the Claimants and is not binding. This dispute is at the heart of both of the applications.
Narrative
The Owners entered into four time charters with Capital dated respectively 21 July 2011, 2 August 2011, 9 August 2011 and 21 October 2011. Pursuant to the charterparties the Owners issued bills of lading in respect of six cargoes loaded on board the vessels in accordance with Capital's directions as charterers. The Owners gave delivery of each of these six cargoes without production of original bills of lading. It is the Owners' case that they did so against letters of indemnity ("LOIs") given for and on behalf of Capital, one for each shipment and each in identical terms. Capital disputes the authenticity or enforceability of the LOIs.
In October 2012 Access Bank PLC, a Nigerian Bank with whom it appears that Capital had a banking relationship, arrested three of the vessels. The "PANTHER" was arrested at Durban on 22 October 2012. The "XIFIAS" and "HELI" were arrested at Lagos on 24 October 2012. The arrests were to secure the bank's claims for alleged misdelivery of the cargoes, of which the Bank claimed to be the lawful owner. It is the Claimants' case that under the LOIs Capital was obliged to arrange security to release the vessels; that as a result of the arrests the Owners suffered substantial loss and damage; that in the case of the owners of the three arrested vessels the losses arose from their detention; and that the Second Claimant, the owner of the "ROFOS" which was not arrested, suffered loss by being obliged to sell the vessel in order to avoid the likelihood of that vessel also being arrested.
In the same month, October 2012, Access Bank commenced proceedings in the Commercial Court in London against the Owners and Capital and Mr Ubah. Mr Ubah's business card describes him as the CEO/Managing director of Capital at an address in Nigeria. Mr Ubah was the signatory of the LOIs whose validity or authenticity was in dispute.
It was against that background that in January 2013 the Settlement Deed was drawn up and signed on behalf of Capital. The copy of the Settlement Deed before the Court bears a manuscript date on its cover sheet of 23 January 2013. It is expressed to be an agreement between IMS, the Owners (together with another company), and Capital. Clause 1 provides that Capital was to pay US$6 million "by no later than 30 days from the execution of this Agreement (January 24, 2013)" to IMS as manager of the owning companies "in full and final settlement for all losses, dues and payments made by IMS as a result of the arrest and detention of their vessels consequent upon the suit commenced against her in London by Access Bank PLC." Clause 2 provides that the US$6 million was to be paid in instalments "payable no later than February 24, 2013". Clause 3 provides for a full and final settlement and release in broad terms. The release is expressed to take effect "Upon the signing of this agreement and payment in full of all sums due and payable by Capital pursuant to this Deed". Clause 8 provides for English law and exclusive English jurisdiction. Clause 9 warranted on both sides that the representative signing the Deed was fully authorised to do so.
The copy of the Settlement Deed before the Court was put in evidence by Capital. It is not clear whether that is a copy of the Deed as received from the Claimants or its own copy (a matter of potential significance as will become apparent from the rival contentions about whether or how it was executed). It bears the signature of Mr Ubah on behalf of Capital, witnessed by Mr Holloway who gives an address in London NW11. Mr Holloway describes himself in his witness statements as "In-House solicitor (Off Shore Matters)" of Capital and his address as c/o Ascendo Consulting Ltd at 63, Grosvenor Street, Mayfair. He is a qualified English solicitor authorised to practice by the SRA. He is based in London. There is no signature in the place designated for IMS. The document ends with the names of the owning companies against which, curiously, there are what appear to be Mr Ubah's initials and his name in manuscript. I shall return to consider the disputed evidence as to whether it was executed by and on behalf of the Claimants. It is convenient first to complete the relevant history of events.
No part of the US$6 million was paid by 24 February 2013 or over the next two years.
By a consent order dated 1 July 2014 Access Bank's claims against the Owners were discontinued and its claims against Capital and Mr Ubah were stayed on terms. Notwithstanding the stay, on 4 November 2014 the Owners issued a Part 20 claim against Capital in the Access Bank proceedings, claiming US$6m under the Settlement Deed. On 29 December 2014 Capital issued an application challenging jurisdiction in relation to the part 20 claim.
On 6 March 2015 the Claimants issued the Claim Form in the present action, claiming US$6m under the Settlement Deed. It was not served at that time. On 19 March 2015 the Owners and Capital entered into a settlement agreement ("the 2015 Settlement Agreement") compromising the Part 20 proceedings in the Access Bank action. IMS was not a party to the 2015 Settlement Agreement, not having been party to the Part 20 claim. The recitals referred to the Settlement Deed as "a Settlement Agreement dated 24 January 2013". The 2015 Settlement Agreement provided that Capital should forthwith make a without prejudice payment of US$200,000 to the Owners "without making any admission as to either parties' rights", upon payment of which Owners would discontinue the Part 20 claim. It went on to provide that there should be a meeting between principals in Europe "at which the parties shall seek to resolve the amounts payable (if any) pursuant to the Settlement Agreement [a reference to the Settlement Deed] and the arrangements for the payment of such amount subject to the provisions of paragraph 4. Paragraph 4 contained a reservation of all rights and claims and stated that the agreement was being entered into in good faith as a step towards amicable resolution of any and all claims. Paragraph 5 provided:
"Capital hereby confirms that Deji Holloway, in-house solicitor of Capital, without prejudice to the rights of Capital on jurisdiction, such rights being fully reserved, has been irrevocably instructed to accept service in London at Lower Ground Floor, 63 Grosvenor Street, Mayfair London W1K 3JG ….of any further proceedings issued by the Owners to enforce the Settlement Agreement dated 24 January 2013 or any subsequent agreement…."
Capital paid the US$200,000 pursuant to the 2015 Settlement Agreement but no further resolution of the dispute took place. The Claimants prepared Particulars of Claim, giving credit for the US$200,000 paid and claiming the balance of US$5,800,000. Relying on clause 5 of the 2015 Settlement Agreement, the Claimants served the Claim Form and Particulars of Claim on 2 July 2015 by delivering them by courier to Mr Holloway's business address at 63 Grosvenor Street, Mayfair.
On 27 July 2015 Capital filed an acknowledgment of service stating its intention to contest jurisdiction. On 13 October 2015 it issued such an application, seeking an order that "(1) The Court has no jurisdiction to hear this claim. (2) The form was not validly served on the Defendants and the service of the claim form is accordingly set aside. (3) The Claimants pay the Defendant's costs". I shall refer to this as the first jurisdiction challenge.
In Mr Holloway's first witness statement, dated 13 October 2015 in support of the first jurisdiction challenge, he said that the relief sought was a declaration that service of the Claim Form on Capital was not valid. He identified the grounds of challenge as being that the claim was made under the Settlement Deed, not the 2015 Settlement Agreement and accordingly the...
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