Motorola Solutions, Inc. v Hytera Communications Corporation Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Picken |
| Judgment Date | 11 November 2022 |
| Neutral Citation | [2022] EWHC 2887 (Comm) |
| Docket Number | Case No: CL-2022-000219 |
| Court | Queen's Bench Division (Commercial Court) |
[2022] EWHC 2887 (Comm)
Mr Justice Picken
Case No: CL-2022-000219
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Tom Sprange KC and Gayatri Sarathy (instructed by King & Spalding LLP) for the Claimants
Stephen Rubin KC and Alexander Milner KC (instructed by Steptoe & Johnson UK LLP) for the Defendants
Hearing dates: 11 th November 2022
Friday, 11 November 2022
( 12:01 pm)
Judgment by Mr Justice Picken
This matter comes before me as an application by the Claimants, namely Motorola Solutions Inc and Motorola Solutions Malaysia SDN BHD (together ‘Motorola’) against the Defendants in action CL-2022-000219, namely Hytera Communications Corporation Limited, Hytera America Inc and Hytera Communications America (West) Inc (together ‘Hytera’), which seeks a declaration:
“That the Claim Form for these proceedings dated 28 April 2022 and attendant documents (the ‘Claim Form’) were, pursuant to CPR 6.7(1)(b) validly and effectively served on the first defendant, Hytera Communications Corporation Limited, (‘HCC’) at the offices of Steptoe & Johnson UK LLP at 5 Aldermanbury Square, London EC2V 7HR.”
In the alternative, the application notice, which is dated 14 June 2022, seeks an order that the Claimants have permission to serve the claim form on HCC out of the jurisdiction and an order that service be effected at an alternative place, namely the offices of Steptoe & Johnson in London and, furthermore, lastly, that the steps already taken to bring the Claim Form to the attention of HCC at those offices constitute good service.
Before me today Motorola have been represented by Mr Thomas Sprange KC and Ms Gayatri Sarathy whilst the Defendants, Hytera, have been represented by Mr Stephen Rubin KC and Mr Alexander Milner KC. Mr Sprange and Ms Sarathy had been instructed by King & Spalding; Mr Rubin and Mr Milner have been instructed by Steptoe & Johnson. The relevance of my pointing out the representation at solicitor level will become apparent since, in due course, I will have to consider certain correspondence between those two firms. First, I should say something further by way of background.
The Claim Form in action CL-2022-000219 seeks the enforcement of a judgment of the US District Court for the Northern District of Illinois Eastern Division (the ‘Illinois Court’) dated 5 March 2020 again the Defendants and in favour of Motorola (the ‘Illinois Judgment’) and, as I shall describe them, the ‘Enforcement Proceedings’. Pursuant to the Illinois Judgment, the Defendants were found to be jointly and severally liable to Motorola for some US$600 million or so. That judgment remains, as I understand it, unsatisfied. Hence, Mr Sprange explains, the commencement of the Enforcement Proceedings earlier this year.
The Enforcement Proceedings are not, however, the first proceedings to have been brought in this jurisdiction between Motorola and Hytera since the Hytera companies, all three of them, were named as the First, Second and Third Defendants in certain other proceedings commenced in 2020. Those other proceedings also named as further defendants two other companies, namely Project Shortway Limited, the Fourth Defendant, and Sepura Limited, the Fifth Defendant. Those other proceedings were proceedings brought under section 25 of the CJJA and were proceedings which sought freezing order relief against those Defendants (the ‘Freezing Order Application’).
I should just mention, in passing and for completeness, that the Illinois Judgment is subject to an ongoing appeal which I am informed is unlikely to conclude until at least early 2024.
As to the Freezing Order Application, the matter came before Mr Justice Jacobs on 9 April 2020, who granted the relief sought. Subsequently, however, on 11 January 2021, the order granting that relief was set aside by the Court of Appeal. The Court of Appeal also ordered Motorola to repay to HCC and the other Defendants (or, in that context, Appellants) some £132,000 or so which HCC had paid Motorola pursuant to Mr Justice Jacobs' order, together with interest. The order went on to require Motorola to pay £125,000 on account of Hytera's costs of the appeal, together with a further £250,000 on account of Hytera's costs before Mr Justice Jacobs. The order, finally, required Motorola to pay the balance of Hytera's costs of the proceedings subject to detailed assessment.
The Court of Appeal stayed those various costs orders until determination of Motorola's application for permission to appeal to the Supreme Court. On 23 February 2022 the Supreme Court refused permission, meaning that the Court of Appeal's orders, those costs orders, took effect from that date. It is, in those circumstances, Hytera's position, as explained by Mr Rubin before me today, that Motorola owes HCC some £507,000 plus interest and, as Mr Rubin explains and is not in dispute, those monies have not yet been paid.
The application for permission to appeal to the Supreme Court having been turned down, on 29 April this year the Enforcement Proceedings to which I have referred, namely the proceedings before me (CL-2022-000219) were commenced. It is those proceedings which Motorola maintains were served on Hytera by service on Steptoe & Johnson, Hytera's solicitors, on 12 May 2022. It is Motorola's position, disputed by Hytera, that Steptoe & Johnson had previously, in 2020, as will become apparent by reference to the correspondence which I will consider, agreed to accept service of proceedings, including, as it turns out, the Enforcement Proceedings commenced just over two years later.
It is that aspect which forms the basis of the primary relief sought from the court today, namely, the declaration in the terms which I have set out. It is only in the alternative, if that declaration were not to be made by the Court, that Motorola seek in the alternative the further relief which I have described. As will become apparent, I need not, in the circumstances, address the application for the alternative relief since I have concluded that this is a case in which Steptoe & Johnson did indeed agree to accept service of proceedings as a result of correspondence exchanged in March 2020, that agreement extending to the Enforcement Proceedings which were commenced in 2022.
That issue is one to which I will return. First, however, I need to address an issue which arose in the course of the witness evidence which was served in response to the application notice which is before me.
In a witness statement, namely the second witness statement of Ivan Gordienko, the partner at Steptoe & Johnson who has conduct of this matter on behalf of the First Defendant, dated 16 September 2022 a number of matters were raised. First, at paragraph 5 Mr Gordienko drew the Court's attention to the fact that, as he put it:
“… HCC has brought its own application in these proceedings dated 8 June 2022 by which it argues that the court has no jurisdiction to hear these proceedings as they have not been validly served on HCC.”
He went on to explain as follows:
“Although HCC had argued for both applications to be listed in parallel, they have ultimately been listed separately with HCC's application currently listed for a hearing in May 2023.”
Mr Gordienko went on to summarise HCC's position in paragraphs 10 and 11 in the following way:
“10. HCC's primary position is that it has not been validly served with these proceedings, such that Motorola is required to seek and obtain permission to serve the proceedings on HCC out of the jurisdiction in order for them to continue. The court should not permit such service for the reasons set out below.
11. Should the court hold that (contrary to HCC's primary position) the claim form has been validly served on HCC, HCC submits in the alternative that these proceedings should be stayed until Motorola complies with the costs orders made against it. If those costs are not paid within a reason (sic) period of time, these proceedings should be struck out.”
Mr Gordienko then went on in the next section of his witness statement, starting at paragraph 12 and ending at paragraph 17, to make reference to the order made by the Court of Appeal earlier this year concerning the payment of costs. His observation at paragraph 12 was that:
“Motorola is in deliberate breach of an order of the Court of Appeal made in the freezing order proceedings and is thus in contempt of court.”
He concluded this section of his witness statement by stating at paragraph 17 as follows:
“Accordingly, HCC considers that, irrespective of whether or not these proceedings have been validly served on it, Motorola should not be permitted to move forward with these proceedings until it has complied fully with the Court of Appeal order.”
He then went on in the next section of his witness statement to deal with the correspondence, to which I will return, in March 2020 concerning the alleged agreement to accept service of proceedings.
As Mr Gordienko foreshadowed, it is Hytera's position that the non-payment of the costs orders made by the Court of Appeal earlier this year is a factor that should be taken into account on the current application. Quite how this is to be taken into account has been the subject of a certain amount of discussion during the course of today's hearing. This is because, consistent with how the point was put by Mr Gordienko in paragraphs 10 and 11 of his witness statement, the position adopted by Mr Rubin and Mr Milner in their skeleton argument for today's purposes, specifically in...
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