Lakatamia Shipping Company Ltd v Nobo Su and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jacobs |
| Judgment Date | 04 November 2019 |
| Neutral Citation | [2019] EWHC 3180 (Comm) |
| Date | 04 November 2019 |
| Docket Number | Case No: CL-2011-001058 |
| Court | Queen's Bench Division (Commercial Court) |
[2019] EWHC 3180 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC2V 7NL
Mr Justice Jacobs
Case No: CL-2011-001058
Mr S Phillips, QC and Mr J Goudkamp (instructed by Hill Dickinson LLP) appeared on behalf of the Claimant
Mr Su appeared in person
(As Approved)
This is an application by Mr Nobu Su, sometimes known as Nobu Morimoto, to seek to procure his early release from prison, on the basis that he wishes to purge his contempt for which he was sentenced to some 21 months in prison by Sir Michael Burton in March 2019. Sir Michael Burton's judgment followed a very large number of court orders in which Mr Su was ordered not to do certain things and to do certain things. What he was required not to do was, pursuant to the terms of a worldwide freezing order, to deal with his assets. What he was ordered to do varied, but it included an obligation to provide information as to his assets and also, as a result of an order made by Popplewell J, to remain within the jurisdiction and to surrender his passport.
The matter has an extensive history which is described in Sir Michael Burton's judgment. It is not necessary for me to repeat that. I have obviously considered it with some care in the context of the present application. The case subsequently went, belatedly, to the Court of Appeal. But the Court of Appeal declined to hear the appeal against Sir Michael Burton's judgment on the basis that it had been lodged out of time.
Judgment was given by Lewison LJ in which he identified the particular contempts which were of most importance. Those were, first, the removal of some €27 million from Monaco. That money represented the proceeds of the sale of two properties. Money was moved in breach of the worldwide freezing order. Secondly, he identified as particularly important contempts those which related to Mr Su's attempt to flee the jurisdiction. He had been served with certain documents on his arrival in London and he then sought to escape by going to Liverpool and boarding a ferry to Belfast.
The application which was heard by the Court of Appeal on 24 September 2019 was an application to extend the time to appeal against Sir Michael Burton's committal order. Following the ex tempore judgment given by the Court of Appeal, Mr Su who, at that point was represented by counsel, sought to persuade the Court of Appeal to hear an application by him to purge his contempt. Mr Phillips, QC, who appeared on that occasion and has appeared for the claimant on this application, made the point to the Court of Appeal that if Mr Su really wished to purge his contempt then he should pay some of the judgment sum by getting back the €27 million which had been dissipated.
The Court of Appeal declined to hear the application to purge contempt there and then, but ordered that it should be remitted on an expedited basis back to the Commercial Court which is how the case comes before me today.
In the course of the argument, and in subsequent short comments from Lewison LJ, the Lord Justice said the following:
“I might also add that although apologies are important the mere apology for the attempt to flee the jurisdiction is not likely to result in any significant reduction in sentence. However, if Mr Su is able to pay at least part of the judgment debt, then the position (and I stress the word ‘might’) be different.”
Lewison LJ also drew attention to the absence, at the time that application was made, of concrete proposals and documentation to support the application to purge contempt.
Since that time, a number of materials have been produced by Mr Su which I have read. The principal materials are as follows, and I will take them in chronological order. First, an updated asset statement has been produced and is contained in an unsworn second affidavit of means which appears to have been drafted in late September 2019. That asset statement is by no means easy to follow and appears to consist principally of a list of potential claims which are or might be the subject of litigation between Mr Su or his companies and various third parties.
Secondly, Mr Su, on 5 October 2019 swore an affidavit which is described as his “purge affidavit”. In that affidavit he apologises for fleeing the jurisdiction and he makes various other points. These include the point, which is central to the present application, namely that Sir Michael Burton was wrong to conclude that he had a significant interest in the €27 million on the basis that he was the 100 per cent owner of the various companies which owned the properties. Instead, as Mr Su explained in that affidavit, he had only effectively an 8.33 per cent interest, because the remaining 90-odd per cent was owned by his mother and other members of his family.
Thirdly, on 25 October 2019, Mr Su drafted and signed a witness statement in which he describes his conditions in Pentonville prison and the problems that he is encountering, and indicates that his life there is a living nightmare. He referred again to his limited interest in the proceeds of the sale of the villas but offered to assign his interest, which he put at €3 million, which remains in Monaco to the claimant in order to purge his contempt. I will come back and explain the €3 million in due course.
Fourthly, Mr Su and Mr McKendrick on his behalf, and I will explain Mr McKendrick's role in due course, have submitted a skeleton argument for the present hearing. That skeleton argument identifies and incorporates the points made in Mr Su's purged affidavit. In addition, a document was given to me this morning, before the hearing started, which summarises the key arguments in relation to what is described as the family ownership of the Monaco villas. The point being advanced in substance was that Sir Michael Burton was wrong to treat Mr Su as the 100 per cent owner of the companies which, in turn, owned the villas.
Those are the key materials, but a number of other materials have been put before me in the form of two bundles prepared by the claimant's solicitors, including a witness statement of Mr Russell St John Gardner which summarises the very lengthy background to these proceedings and opposes Mr Su's application for early release.
The matter was due to come on before me last Friday morning, but unfortunately no video link with the prison had been arranged and it was therefore adjourned until today, Monday afternoon, 4 November 2019. At the hearing today, Mr Su did attend by video and he addressed me in person. An application was also made by him, to which I acceded,...
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Lakatamia Shipping Company Ltd v Nobu SU (aka SU HSIN CHI; aka Nobu Morimoto)
...Su [2019] EWHC 898 (Comm)). Mr Su's subsequent appeal was dismissed and his attempt to secure early release was likewise dismissed ( [2019] EWHC 3180 (Comm)). 19 In April 2019 Sir Michael Burton discharged the Morimoto WFO on the basis of lack of risk of dissipation. ( Lakatamia Shipping C......
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Lakatamia Shipping Company Ltd v Nobu Su (aka Su Hsin Chi; Aka Nobu Moritomo)
...Justice Jacobs when Mr Su brought a purge application in November 2019. In his decision (reported as Lakatamia Shipping Company v Su [2019] EWHC 3180 (Comm)), Mr Justice Jacobs made the following findings at [27] to [30]: “27. I have listened with care to Mr Su's argument that he has been ......