Lakatamia Shipping Company Ltd v Nobu SU (aka SU HSIN CHI; aka Nobu Morimoto)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cockerill |
| Judgment Date | 09 November 2020 |
| Neutral Citation | [2020] EWHC 3201 (Comm) |
| Date | 09 November 2020 |
| Docket Number | Case No: CL-2011-001058 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 3201 (Comm)
Mrs Justice Cockerill DBE
Case No: CL-2011-001058
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT
QUEEN'S BENCH DIVISION
Royal Courts of Justice,
Rolls Building
Fetter Lane, London,
EC4A 1NL
Mr N Casey and Mr J Goudkamp (instructed by Hill Dickinson LLP) for the Claimant
The First Defendant appeared in person
Mr D Head Q.C. and Mr G Chalfoun (instructed by Baker & McKenzie LLP) for the Additional Party
The Second to Seventh Defendants were unrepresented
Hearing date: Friday 30 October 2020 and Monday 9 November 2020
Approved Judgment
I direct that 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 an application by the First Claimant (“Lakatamia”) pursuant to CPR Part 31.22 to use documents obtained from the Respondent, Mr Su, in these proceedings (“the Su Enforcement Proceedings”) pursuant to a search order made by Mr Justice Andrew Baker (“the Search Order”) in related proceedings bearing the claim number CL-2019-000141 (“the Morimoto Proceedings”) (“the Collateral Use Application”).
The Additional Party (“Mrs Morimoto”), is the Second Defendant in the Morimoto Proceedings, in which Lakatamia alleges (in short) that Mrs Morimoto assisted Mr Su in evading enforcement of certain orders of this court, as explained below. Mrs Morimoto made a separate application within the Morimoto Proceedings addressing the case management consequences in those proceedings of the present application, if granted.
Normally such an application would not give rise to a full judgment of this sort. However at the hearing of the application my attention was drawn by Mr Head QC for Mrs Morimoto to what appeared to me to be breaches of the restriction on collateral use of documents. I required a witness statement to be sworn by Mr Russell Gardner of Hill Dickinson, the partner with responsibility for both matters, and convened this further hearing for submissions to be made in the light of this further evidence. That response and the position adopted on behalf of Lakatamia have only reinforced the need for this matter to be dealt with in a considered judgment.
Factual Background
Mr Su's name will be familiar to any student of modern commercial litigation. He is a gentleman who has gone by various names over the years, including Nobu Su, Su Hsin Chi and Nobu Morimoto. Over the past 10 years Mr Su has been embroiled in a substantial number of civil court proceedings in England and Wales and elsewhere. These included proceedings brought by Lakatamia against him in the Commercial Court under claim 2011 Folio No. 357.
Mrs Morimoto is an 86-year old resident of Taiwan and his mother.
On 6th July 2008, Lakatamia, a shipping company, entered into a series of freight forwarding agreements (“FFA's”) with Mr Su and various companies that were owned by him. Subsequently, Mr Su breached the agreement, causing Lakatamia substantial losses. Lakatamia subsequently brought a claim for damages against Mr Su.
In mid-2011, Lakatamia applied for, and was granted, a WFO against Mr Su by Mr Justice Blair. That prohibited Mr Su from dealing with, or dissipating, his assets anywhere in the world, up to the value of US$48,842,440.24 (“the Su WFO”).
In November 2014, following a trial, Mr Justice Cooke granted judgment in favour of Lakatamia against Mr Su in the sum of US$37,854,310.24 ( Lakatamia Shipping Co Ltd v. Su [2014] EWHC 3611 (Comm); [2015] 1 Lloyd's Rep 216). On 16th January 2015, Mr Justice Cooke granted judgment in the further sum of US$9,852,200.50.
Mr Su has not discharged these judgment debts voluntarily. Lakatamia has spent the last five years attempting to enforce the judgment — with very limited success. Mr Su's liability to Lakatamia to date currently stands at around US$60m (“the Judgment Debt”). Interest and costs were awarded and continue to accrue/be incurred.
In 2015, in the course of seeking to enforce the Judgment Debt Lakatamia identified that Mr Su was the owner of two valuable Monegasque properties known as Villa Rignon and Villa Royan (“the Monegasque Villas”) through a corporate structure comprised of two corporate entities, Portview Holdings Limited(“Portview”) and Cresta Overseas Limited (“Cresta”). These were sold in October 2015 at the suit of the mortgagee, Barclays Bank, for some €65 million. In February 2017, following the redemption of the mortgages, a sum of €27 million was released to a lawyer acting for Cresta, Maître Arnaud Zabaldano.
In January 2018, Mr Justice Popplewell granted an order requiring Mr Su to surrender his passports and remain in the jurisdiction pending a hearing at which he was to be cross-examined as to his assets.
A year later, Mr Su entered the United Kingdom and was met by the police at Heathrow and served with the order of Popplewell J. Shortly thereafter, Mr Su was arrested in Liverpool in the course of attempting to flee the jurisdiction by ferry. He was brought before the Commercial Court in London, whereupon Lakatamia served him with a committal application notice (“the Committal Proceedings”).
Lakatamia contended that the sale and dealing with the proceeds of the Monegasque Villas was a breach of the Su WFO.
In February 2019, at a hearing before Sir Michael Burton, in the course of being cross-examined by Mr Stephen Phillips QC on behalf of Lakatamia as to his assets, Mr Su gave evidence to the effect that (i) his mother, Mrs Morimoto, had received the proceeds from the sale of the Monegasque Villas (“Net Sale Proceeds”) via her lawyers, (ii) she knew about the Su WFO and (iii) she performed a “treasury” function for the Su family.
Lakatamia at once applied ex parte on an urgent basis for a WFO against Mrs Morimoto, Portview and Cresta; which injunction was granted by Sir Michael Burton (“the Morimoto WFO”).
In early March 2019, Lakatamia issued the Morimoto Proceedings. Those proceedings essentially concern the dissipation arising from the sale of the Monegasque Villas. Lakatamia advances claims in: i) unlawful means conspiracy; and ii) the tort of inducing and/or facilitating a failure to pay a judgment debt, both relating to Mr Su's alleged breach of the Su WFO and his failure to discharge the judgment Debt. of the Commercial Court.
On 6th March 2019, Lakatamia also issued an application notice seeking inter alia orders that (i) the Morimoto WFO be continued against Mrs Morimoto; (ii) Lakatamia be permitted to serve Mrs Morimoto with the claim form out of the jurisdiction on the basis that: (a) she was a necessary or proper party to the unlawful means conspiracy claim against Mr Su, who had been served within the jurisdiction; (b) because damage had been suffered in the jurisdiction; and (iii) Mrs Morimoto disclose her worldwide assets with a value exceeding US$100,000 and swear and serve an Affidavit confirming that disclosure.
The Committal hearing took place in March 2019. In a written judgment handed down on 29th March 2019, Sir Michael Burton held that he was satisfied Lakatamia had proven to the criminal law standard that Mr Su had dissipated the Net Sale Proceeds in breach of the Su WFO and ordered him to be committed to prison for 21 months for contempt ( Lakatamia Shipping Co Ltd v 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)).
In April 2019 Sir Michael Burton discharged the Morimoto WFO on the basis of lack of risk of dissipation. ( Lakatamia Shipping Co Ltd v. Su [2019] EWHC 1145 (CH)) That judgment was overturned on appeal ( [2019] EWCA Civ 2203) albeit that the Court expressed some doubt about the case referring to the “tenuous” nature of the evidence and the Morimoto WFO therefore remains in place.
In 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. A further Order to cross-examine Mr Su was made by Waksman J in early 2020.
In February 2020, Sir Michael Burton GBE heard a fresh committal application. He found that Mr Su had committed a contempt of court in failing to disclose the existence of three New York apartments which had been revealed to exist in some of the documents 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 the previous sentence.
In March 2020, Lakatamia 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, are the subject of Lakatamia's third committal application.
The Search Order
The background to the present application is that shortly thereafter Lakatamia sought an electronic search order. It did so initially to obtain material from Mr Su's social media accounts. The application was made without notice before Foxton J in April 2020. At that hearing Foxton J made an order but also made clear to Lakatamia that any use of the documents before the Return Date would be...
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