Lakatamia Shipping Company Ltd v Nobu Su (ala Su Hsin Chi; aka Nobu Moritomo)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foxton |
| Judgment Date | 08 April 2020 |
| Neutral Citation | [2020] EWHC 865 (Comm) |
| Date | 08 April 2020 |
| Docket Number | CL-2011-001058 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 865 (Comm)
Mr Justice Foxton
CL-2011-001058
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
Stephen Phillips QC, Noel Casey and James Goudkamp (instructed by Hill Dickinson LLP) for the First Claimant/Applicant
The First Defendant in person.
Hearing date: 8 April 2020
INTRODUCTION
This is the latest judgment dealing with a succession of applications arising against the background of the Claimants' (“Lakatamia's”) long-standing efforts to enforce judgments obtained in this Court against the First Defendant (“Mr Su”) in 2014 and 2015. I have summarised the background to the dispute in a judgment I handed down on 3 April 2020 and which is reported at [2020] EWHC 806 (Comm) (“the 3 April Judgment”). In this further judgment, I adopt the same definitions which I used in the 3 April Judgment.
The 3 April Judgment addressed three applications which I heard remotely by Skype on 3 April 2020:
i) Lakatamia's application to continue on the return date, the injunction I had granted on 26 March 2020 (“the Injunction”), and for further orders in relation to that application.
ii) Mr Su's application to purge the contempt for which he is presently serving a sentence of imprisonment at HMP Pentonville.
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 unconditionally from the sentence of imprisonment he is currently serving.
Mr Su requested the adjournment of the Injunction Application, claiming that he had only received the papers the day before. While I was very sceptical of Mr Su's claim, I agreed to adjourn the hearing of the return date of the injunction until the earliest date it could be heard this week. That date has transpired to be 8 April 2020. So far as the other two applications are concerned, I dismissed Mr Su's application for early release, and I refused Lakatamia's application to list its third committal application prior to Mr Su's release from prison.
Events since 3 April 2020
In the period since 3 April, Mr Su has posted a letter stating, in effect, that he has forgotten the passwords or details which would allow access to the various email and social media accounts which were the subject of the Injunction. Mr Su had indicated during the hearing of 3 April 2020 that this was likely to be his position.
In addition, Lakatamia has issued two further applications, both of which were short-served:
i) An application requiring Mr Su to sign mandates to each of his known email and social media providers authorising them to disclose to Lakatamia and the Independent Lawyer the details of the accounts (“the Mandate Application”).
ii) An application requiring Mr Su to be subject to further restrictions on his release from HMP Pentonville on 11 April 2020 over and above those imposed by the Waksman Order (“the Conditions Application”).
THE INJUNCTION APPLICATION
The purpose of this application is to allow Lakatamia to obtain disclosure for the purposes of identifying assets against which a judgment can be enforced, and for the purpose of giving effect to the worldwide freezing order obtained against Mr Su which required Mr Su to disclose his assets.
It is Lakatamia's case, which I find has been established on the evidence to the necessary standard for injunctive relief (for which purpose I have assumed that the “good arguable case” standard applies), that Mr Su has never satisfactorily complied with the disclosure and production requirement imposed by the Blair Injunction, the Popplewell, Bryan and Waksman Orders and as reiterated in the recent order of Mr Justice Teare.
Against this background, the order which Lakatamia seeks is one which in effect, takes the process of giving disclosure out of Mr Su's own hands by:
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; and
ii) allowing the Independent Lawyer to review the materials, and to produce to Lakatamia those documents which are not subject to either the privilege against self-incrimination or legal professional privilege.
Should the hearing of the return date proceed?
Mr Su once again sought to adjourn the hearing of the return date, stating that he did not want to incriminate himself and that he wanted time to instruct a lawyer. He also suggested that the amount of the judgment was wrong and made a number of submissions connected with what he said was his ability to assist in finding a cure for COVID-19.
I have already adjourned the hearing of the return date application once. I did so for the reasons at [24]–[25] of the Judgment despite considerable scepticism as to Mr Su's account of when the injunction and the relevant papers had first come to his attention.
I have concluded that it is not appropriate to further delay this application. The application is urgent for reasons which I set out below. I have reluctantly concluded that Mr Su is engaged in delaying tactics in an attempt to derail the hearing. I have reached that conclusion against the background of numerous previous attempts by Mr Su in the course of the proceedings to derail hearings:
i) Mr Su has been represented by a number of solicitors during the history of these proceedings, including one firm (Cooke, Young and Keidan: “CYK”) who were instructed and disinstructed on no fewer than three occasions.
ii) CYK were sacked after the trial, and Mr Su instructed his third set of solicitors, and new counsel. The first counsel he instructed had limited availability, leading to dates being offered for a hearing some time into the future.
iii) Mr Su secured an adjournment of the first CPR 71 hearing at the last minute by promising to provide documents which were never produced.
iv) Mr Su raised an argument on the first day of the committal hearing before Sir Michael Burton that he lacked capacity, leading to an adjournment. The psychiatrist retained by Mr Su had no availability for a capacity hearing. After a psychiatrist retained by Lakatamia had examined Mr Su, Sir Michael Burton rejected the submission that Mr Su lacked capacity.
v) I have already recorded my deep reservations as to whether Mr Su was telling the truth when he told me on 3 April 2020 that he had only received the papers relating to the Injunction Application for the first time the previous afternoon.
In short, I have been reluctantly driven to the conclusion that Mr Su is someone who seeks to “play the system”, and who seeks to exploit the Court's natural desire to achieve fair hearings by continually pointing to some factor which is said to require an adjournment or delay.
In this case, there can be no case of Mr Su needing protection against self-incrimination because this is already addressed in the terms of the Injunction. In any event, it is Mr Su's evidence that he has already done his best to comply with the Injunction, but that he cannot remember any of the details which would allow access to his accounts. So long as he maintains that position (and it is strongly disputed by Lakatamia), the Injunction is not capable of causing him any prejudice, save to the extent that any material might come forward if the Court were to grant the Mandate Application. I address that application, and the steps taken to ensure that Mr Su is not prejudiced by the short service of the Mandate Application, below.
Finally, the amount of the judgment has been established by prior decisions of this Court. In any event, even on Mr Su's own submissions, the outstanding judgment debt exceeds $50m. Even if were open to Mr Su to re-open this issue (and in my view it is not), it is not a matter which could provide any answer to the Injunction Application.
I therefore turn to consider the Injunction Application.
Does the Court have jurisdiction to make such an order?
The first issue is whether I have jurisdiction to make an order which, in effect, ensures so far as possible that the steps which Mr Su is obliged to take but refuses to take in relation to the provision of documents are taken by someone else in his stead.
I am satisfied that I do have jurisdiction, certainly to the good arguable case thresholds appropriate for an interim application:
i) under section 37(1) of the Senior Courts Act 1981, on the basis that such an order is just and convenient as a necessary adjunct to the injunctions and orders for the giving of information and production of documents already made against Mr Su;
ii) under the Court's inherent jurisdiction to ensure compliance with the orders already made against Mr Su.
I have reached the conclusion that the Court has jurisdiction to make an order to procure compliance by a defendant with an obligation the defendant is under but refuses to perform itself for the following reasons.
First, it is clear that where a party is obliged to sign certain documents, but refuses to do so, the court can order an official of the court to perform that obligation in that party's stead. Thus the powers...
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