Lakatamia Shipping Company Ltd v Nobu Su (aka Su Hsin Chi; Aka Nobu Moritomo)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foxton |
| Judgment Date | 03 April 2020 |
| Neutral Citation | [2020] EWHC 806 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2011-001058 |
| Date | 03 April 2020 |
[2020] EWHC 806 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PRPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foxton
Case No: CL-2011-001058
Stephen Phillips QC, Noel Casey and James Goudkamp (instructed by Hill Dickinson LLP) for the First Claimant/Applicant
Adam Tear (of Scott-Moncrieff & Associates Limited) for the First Defendant on the Purge and Listing Applications)
The First Defendant in person on the Injunction Application.
Hearing date: 3 April 2020
INTRODUCTION
This judgment deals with three applications which I heard today, 3 April 2020, in hearings conducted remotely by Skype. The three applications are:
i) The Claimants' (“Lakatamia's”) application to continue on the return date the injunction I granted on 26 March 2020, and for further orders in relation to that application (“the Injunction Application”).
ii) The First Defendant's (“Mr Su's”) application to purge the contempt for which he is presently serving a sentence of imprisonment at HMP Pentonville (“the Purge Application”).
iii) Lakatamia's application to list a further application to commit Mr Su to a further period for imprisonment for contempt of court so that the hearing is concluded before Mr Su is released from the sentence of imprisonment he is currently serving (“the Listing Application”).
The disputes from which these applications arise have a long, complex and troubled history, and the applications themselves give rise to a number of issues. They have arisen for determination in the course of the COVID-19 pandemic, which has necessitated the conduct of the hearings remotely, and involved the service of documents on Mr Su in prison, and his participation in the hearing from custody via the HMP video link.
Lakatamia has been represented for all three applications by Mr Stephen Phillips QC, Mr Noel Casey and Mr James Goudkamp instructed by Hill Dickinson LLP. Mr Su has been represented by Mr Adam Tear of Scott-Moncrieff & Associates Ltd on the Purge and Listing Applications. Mr Su appeared in person on the Injunction Application.
THE BACKGROUND
As I have mentioned, this matter has a long background. That background has been set out in a number of prior judgments of this Court and is largely a matter of record.
Mr Su was one of Asia's richest businessmen. In 2008, he and his companies entered into a contract with Lakatamia relating to the purchase of forward positions on the freight market, which positions proved very substantially loss-making. He failed to fulfil his obligations to Lakatamia under that contract. Lakatamia obtained a worldwide freezing order from Mr Justice Blair on 19 August 2011 (“the Blair Injunction”) and in due course Lakatamia obtained judgments against Mr Su for the amounts of $37,854,310,24 and $9,852,200, on 5 November 2014 and 16 January 2015 respectively.
On 26 January 2018, Mr Justice Popplewell made a passport order against Mr Su, requiring him to remain in the jurisdiction pending cross-examination under CPR Part 71 and the swearing by Mr Su of an affidavit disclosing his worldwide assets and certain documents known as the Schedule A documents (“the Popplewell Order”). That order was served on Mr Su when he entered the jurisdiction on 10 January 2019. Mr Su lied to the officers who served the order as to his intended address, and took a taxi to Liverpool where he sought to take a ferry to Northern Ireland. That attempt failed and he was brought back to London where Lakatamia served him with a committal application.
On 16 January 2019, Mr Justice Bryan rejected a submission by Lakatamia (based on a suggestion by Mr Su's counsel) that Mr Su be remanded in custody pending the application to commit him, holding that he had no jurisdiction to make such an order. He reimposed the restrictions set out in the Popplewell Order, together with additional restrictions including a daily reporting restriction (“the Bryan Order”).
After the adjournment of the initial hearing due to the absence of satisfactory disclosure from Mr Su, Mr Su was cross-examined as to his assets before Sir Michael Burton on 27 and 28 February 2019. In that hearing, it emerged that Mr Su had been involved in the sale of two villas in Monaco, and Mr Su gave evidence that the proceeds of sale had been transferred to his mother Mrs Morimoto (which evidence led to a further freezing order and fresh proceedings by Lakatamia against Mrs Morimoto and others alleged to have been involved in the sale).
Lakatamia's motion to commit Mr Su was heard in March 2019. On 29 March 2019, Sir Michael Burton found that Mr Su had committed contempt of court in 10 respects. These included failing to disclose the villas and dissipation of the sale proceeds and other monies in breach of the Blair Injunction, failure to supply a genuine address and the attempt to flee the jurisdiction in breach of the Popplewell Order, failing to produce the Schedule A documents in breach of the Popplewell and Bryan Orders and failing to serve an appropriate affidavit of assets in breach of the Popplewell and Bryan Orders. Sir Michael Burton sentenced Mr Su to 21 months' imprisonment. It is apparent from the sentencing remarks that Mr Su would have been sentenced to the two year maximum sentence but for the fact that he had already had to remain in the jurisdiction and report daily to the police in accordance with the Bryan Order.
Material which came to light in the proceedings commenced against Mrs Morimoto revealed involvement by Mr Su in the transfer of the proceeds of sale of the villas.
On 4 November 2019, Mr Su applied before Mr Justice Jacobs to purge his contempt. Mr Justice Jacobs refused that application, which he held to be totally without merit. In the course of that application Mr Su had produced a new affidavit of assets which Lakatamia contends can now be shown to have been seriously misleading in failing to refer to assets the existence of which has subsequently come to light (namely three New York apartments and a Tokyo residential property to which I return below).
On 13 November 2019, His Honour Judge Pelling QC ordered Mr Su to sign various bank mandates and to provide them to Lakatamia, to allow Lakatamia to approach Mr Su's banks directly for documents which Mr Su had been ordered to provide within the Schedule A documents. When Mr Su refused to sign those mandates, Lakatamia issued a fresh committal application on 6 January 2020. That application was due to be heard on 30 January 2020. However, before it was heard, Lakatamia discovered three apartments in which Mr Su had an interest in New York.
On 30 January 2020 Mr Justice Waksman made the following order (“the Waksman Order”):
i) The committal application was amended to include the failure to disclose the New York properties.
ii) Mr Su was ordered to attend Court for a further cross-examination as to his assets under CPR 71.
iii) Mr Su was ordered to produce further documents relating to his interest in two companies involved in handling the proceeds of the sale of the villas, UP Shipping and Blue Diamond.
iv) An order was made preventing Mr Su from leaving the jurisdiction or applying for documents to enable him to do so until the second CPR 71 hearing had taken place.
v) An order was made requiring Mr Su to report daily to Charing Cross police station upon his release from prison.
The hearing of the second CPR Part 71 order was fixed for 31 March and 1 April 2020 but has since been adjourned by consent while Lakatamia seeks further information and documents for the purposes of conducting the cross-examination.
On 11 February 2020, Sir Michael Burton heard a fresh committal application. He found that Mr Su had committed contempt of court in failing to disclose the three New York apartments in breach of the Blair Injunction and Popplewell and Bryan Orders and in the affidavit filed for the purposes of the purge application before Mr Justice Jacobs and in failing to sign the bank mandates. He committed Mr Su to a period of a further 4 months' imprisonment to be served consecutively to his current sentence.
On 11 March 2020, Lakatamia obtained a further order from Mr Justice Teare requiring Mr Su once again to produce the Schedule A documents. Mr Su responded by saying he was unable to comply while in prison, but he would sign authorities allowing Lakatamia to obtain those documents.
By 5 March 2020, Lakatamia had discovered what they contend to be an interest Mr Su held in a residential property in Tokyo. The failure to disclose that asset, and the alleged failure of Mr Su to produce documents relating to his interest in UP Shipping and Blue Diamond as required by the Waksman Order are the subject of Lakatamia's third committal application, which is the subject of the Listing Application.
THE INJUNCTION APPLICATION
Lakatamia seeks an order:
i) requiring Mr Su to identify social media and email accounts to Lakatamia and an independent lawyer appointed by the court, and to give the independent lawyer access to the accounts by providing necessary passwords;
ii) allowing the independent lawyer to review the materials so accessed; and
iii) allowing the independent lawyer to produce to...
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