Masri v Consolidated Contractors International Company SAL and Others (No.4)
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR,Lord Justice Longmore,Lord Justice Lawrence Collins |
| Judgment Date | 28 July 2008 |
| Neutral Citation | [2008] EWCA Civ 876 |
| Docket Number | Case No:A3/2008/0375 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2008 |
[2008] EWCA Civ 876
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
COMMERCIAL COURT
MASTER MILLER
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Anthony Clarke Mr
Lord Justice Longmore and
Lord Justice Lawrence Collins
Case No:A3/2008/0375
Case No: 2004 Folio 124 & 831
Mr Simon Salzedo & Mr Colin West (instructed by Simmons & Simmons) for the Appellant
Mr Alexander Layton QC & Mr Tom Raphael (instructed by Olswang) for the Respondents
Hearing dates : 7 & 9 May 2008
Introduction
This is an appeal brought by Mr Munib Masri, as judgment creditor, against the order of Master Miller made on 20 December 2007 in which he set aside a without notice order against the respondents, Mr Toufic Said Khoury ('TK') and Mr Samer Said Khoury ('SK'), whom I will call 'the addressees', under CPR 71 directing them, as officers (or former officers) of two judgment debtors, namely Consolidated Contractors International Company SAL ('CCIC') and Consolidated Contractors (Oil and Gas) Company SAL ('CCOG'), to attend court and to provide information about the judgment debtors' means or any other matter about which information is needed to enforce the judgment, within the meaning of rule 71.2(1)(b)(i) and (ii). Master Miller held that he had no jurisdiction to make such an order but he gave permission to appeal and directed that the appeal be transferred to this court under rule 52.14 on the ground that it raised important points of principle.
Background
This appeal is part of substantial litigation in which Mr Masri, who is both claimant and judgment creditor in this action, obtained judgment against CCIC and CCOG. Mr Masri, claimed a 10 per cent share of the interest, which was itself 10 per cent, held by the Consolidated Contractors ('CCC') group of companies in an oil concession in the Yemen known as the Masila Concession. Mr Masri claimed to be entitled to a share in that interest under a written agreement concluded in 1992.
This is the third appeal arising out of this litigation which has been heard in this court this year. They have all arisen one way or another out of the judgment of Gloster J on liability on 28 July 2006 which was given after a long trial in March 2006. In short, Gloster J held that the 1992 agreement continued in existence and that Mr Masri was entitled to payment of his 10 per cent share thereunder. There were a number of defendants including CCIC and CCOG. The claim failed against the other defendants but succeeded against CCIC and CCOG, both of which are incorporated in Lebanon. It is common ground that CCIC also has a domicile in Greece. On 4 May 2007 Gloster J determined quantum and gave judgment against them jointly and severally. She also ordered them to pay US$30 million by way of interim payment. Neither CCIC nor CCOG has paid anything under the judgments and the indications are that they have no intention of doing so if they can possibly avoid it. The sum now due under the judgment is said to be about US$63 million. It has not been suggested that CCIC and CCOG could not discharge the judgment debt if they wanted to do so.
CCIC and CCOG ('the judgment debtors') sought to appeal against the judgment but, when they were ordered to pay the sum of US$30 million as a condition of being permitted to do so, they did not pay, with the result that no appeal took place. The application under CPR 71 is not the only step which Mr Masri has taken with a view to enforcing the judgment. On his application, Gloster J made orders on 20 December 2007 for the appointment of a receiver and a freezing order against CCOG and for affidavits of assets against CCOG and CCIC. Gloster J also made orders against the directors of the judgment debtors requiring them to co-operate with the receiver. She also named them, including TK and SK, in the penal notice to her order.
On 19 March 2008 Flaux J made a further order for an affidavit of assets. The judgment debtors appealed to this court against part of the order of Gloster J dated 20 December (although not that relating to the directors) but their appeal failed: see Masri v CCIC and CCOG [2008] EWCA Civ 303. The basis on which it failed is explained in detail by Lawrence Collins LJ in a judgment dated 4 April 2008. Since then this court has heard a second appeal, also brought by CCIC and CCOG, in respect of an anti-suit injunction granted by HH Judge Mackie QC on 25 May 2007. That appeal was heard by the present constitution and judgment was handed down on 6 June 2008. The appeal failed: see [2008] EWCA Civ 62The reader of this judgment is invited to consult the judgments in the previous appeals for the background to the dispute. In this judgment I will refer only to those aspects of the case which are relevant to the issues in this appeal.
This appeal
There is at least one curious feature of this appeal. As I have indicated, Master Miller set aside the orders complained of because of a lack of jurisdiction. However, he made it clear that he would have set them aside in any event on the ground of a failure on the part of the judgment creditor to make full and frank disclosure to the court as was his duty on a without notice application. Although Master Miller granted permission to appeal on the jurisdiction point, he refused it on the issue of full and frank disclosure. There is an issue as to the scope of the permission to appeal granted by Master Miller, to which I will return below. On one view this appeal might be academic. We considered whether, if it was academic, we should refuse to proceed with the appeal on that ground. However, we decided to proceed on the basis that it would not in any event be academic, since the judgment creditor might wish to proceed with a fresh application in the future, which he could not do if Master Miller was correct to hold that the court had no jurisdiction to make the order sought. Without a successful appeal, the issue of jurisdiction would be res judicata. In the event, as appears below, our conclusion on both jurisdiction and discretion show that the appeal is not academic.
Jurisdiction
The addressees and the orders
Both TK and SK are resident and domiciled in Greece. At the time of the applications and of the subsequent orders, TK was a director of CCIC and SK was a director of a company called Consolidated Contractors Group SAL (Holding Company), which is a corporate director of CCOG. Both TK and SK have more recently ceased to be directors of those companies but that is not said to be directly relevant for present purposes. On 4 July 2007 the judgment creditor made two without notice applications to Master Miller. In each case the applicant was described as the claimant and the judgment debtors as the defendants. The order sought was in a very similar form in both cases.
In the case of TK the orders sought were in these terms:
“(i) an order that an officer of [CCIC] (“the Judgment Debtor”) attend court to provide information about the Judgment Debtor's means and any other information needed to enforce the order[s] of Mrs Justice Gloster …;
(ii) permission to serve any such order on the Judgment Debtor's current solicitors.”
The “officer” was described as “the Judgment Debtor's Chairman and a director whose name is [TK]”. A number of documents were attached with Arabic translations. In addition a list of documents which it was said that the judgment creditor wanted the officer to produce was also attached. An express request, with appropriate reasons, was made that TK be questioned before a judge. In addition, an application was made for substituted service of the order on TK by serving it on the judgment debtor's solicitors.
In SK's case the application was in almost identical terms except that the judgment debtor was CCOG and SK was described as “a director of the corporate director (Consolidated Contractors Group SAL (Holding Company)) of [CCOG]”.
The orders were dated 6 July 2007 and were in almost identical terms. In each case the heading was the heading in the action, so that Mr Masri is named as the claimant and CCIC and CCOG as defendants. Each recited that CCIC and CCOG, in breach of an order of Gloster J, had not paid amounts they had been ordered to pay by way of interim payment and on account of costs. They recited the correct position as to the directorships held by TK and SK respectively. They also ordered each to attend at a specified (but different) time and place and each to produce documents specified in the schedule to the order which were in the respective addressee's control and to answer on oath such questions as the court may require. Finally each of the orders permitted substituted service on the judgment debtors' named solicitors.
On 13 September 2007 the addressees issued an application that the orders be set aside for want of jurisdiction and on the basis that the orders should not otherwise have been made. On 22 November 2007, the examination of the addressees was postponed pending the outcome of the application, save that it was ordered that the issues relating to service of the orders be adjourned for further argument after judgment on the other issues, if they were still relevant and if they were pursued. Such issues as there are or may be as to service of the orders have not yet been considered and are not relevant to...
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