Mr Nopporn Suppipat v Siam Commercial Bank Public Company Ltd
| Jurisdiction | England & Wales |
| Judge | Pelling |
| Judgment Date | 02 March 2022 |
| Neutral Citation | [2022] EWHC 381 (Comm) |
| Docket Number | Case No: CL-2018-000716 |
| Court | Queen's Bench Division (Commercial Court) |
[2022] EWHC 381 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
HIS HONOUR JUDGE Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CL-2018-000716
and
Jonathan Davies-Jones QC (instructed by Reynolds Porter Chamberlain LLP) for the Applicant
Robert Howe QC and Victoria Windle (instructed by Willkie Farr & Gallagher (UK) LLP) for the Respondents
Hearing dates: 17, 18 and 19 January 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Pelling QC SITTING AS A JUDGE OF THE HIGH COURT
HH Judge Pelling QC:
Introduction
This was to have been the hearing of applications by the 10 th Defendant (“SCB”) for:
i) An order prohibiting the respondents from using or deploying in these proceedings certain documents covered by SCB's legal professional privilege and/or containing SCB's confidential information, copies of which the respondents obtained from Wind Energy Holding Company Limited (“WEH”) pursuant to subpoenas in Thailand (the “Restraint of Use Application”), together with an order requiring the claimants' legal team in these proceedings to return their copies of the documents.
ii) An order prohibiting certain members of the claimants' solicitors and counsel team from continuing to act (the “Restraint to Act Application”); and
iii) An order under CPR PD51U para 21.1(2) requiring the respondents to provide a copy of the legal opinion prepared for them by Mr Lissack QC (the “Lissack Opinion”) and related instructions (the “Lissack Instructions”), whose contents the respondents refer to and rely upon in Mr Burrell's fourth witness statement (the “Waiver of Privilege Application”)
Although various permutations had been canvassed in the skeleton arguments as to the order in which these applications would be heard, at the start of the hearing it was agreed that the application referred to in (i) above would be heard first and those referred to in (ii) and (iii) would be considered only following judgment on the first application. However, at the start of Day 2 of the hearing, Mr Davies-Jones QC indicated that his client had decided not to proceed with the applications referred to in (ii) and (iii) – see T2/2/21 to 3/3. It follows that the only application that requires resolving is that referred to in (i) above.
The documents referred to in (i) above are in three categories being:
i) a legal opinion prepared by the Bangkok office of XYZ (“XYZ”) for SCB dated 17 July 2017 (Document 1);
ii) XYZ's invoice (Document 2); and
iii) a 90-page document containing the text of over 50 emails relating to that opinion (Document 3).
(Collectively “Documents”).
Each of the Documents is in evidence and both parties referred at length to the contents of Document 1 and Document 3 in the course of the hearing. It will be necessary to consider at hand down whether this judgment should be published notwithstanding that the hearing has taken place in private as required by the order of Jacobs J dated 3 August 2021. That being so, I have attempted to limit any references to contents of the Documents. It may be that even those references will have to be removed to a confidential schedule if the judgment is to be published. I will hear submissions on that issue at the hand down of this judgment.
Background and Material Facts
The first claimant (“NS”) controls the other claimants. In 2006, NS founded Renewable Energy Corporation Company Limited (“REC”) and in 2009, he founded WEH. Both companies operate exclusively in Thailand. Prior to the events which led to this claim, NS beneficially owned 97.94% of the shares in REC, which were held on his behalf by the second to fourth claimants, and REC held 59.46% of the shares in WEH. The business of each of those companies was the development and construction of large scale wind energy projects.
SCB is the third largest commercial bank in Thailand. The King of Thailand personally is one of SCB's shareholders. His holding is said to be about 22% of SCB's issued shares. At certain times, SCB financed certain of WEH's windfarm projects.
On 1 December 2014, criminal charges were brought against NS for various alleged offenses including lèse-majesté – that is insulting the King, Queen and Heir to the Throne. NS fled from Thailand, obtained political asylum in France and, on 15 December 2014, resigned his positions as co-chief executive officer and a director of WEH. He remained interested however in WEH via his shareholding in REC.
At the time of these events, SCB was in the process of negotiating further project finance facilities for WEH and its subsidiaries. Following NS's flight from Thailand, SCB informed WEH that it was unable to fund further projects whilst NS remained a fugitive. In particular negotiations between SCB and WEH (or one of its subsidiaries) concerning what is known in these proceedings as the “Watabak Facility” were suspended.
Thereafter NS entered into negotiations for the sale of his shares in REC to companies controlled by the first defendant (“NN”). On or about 19 June 2015, the claimants entered into various share purchase agreements referred to in these proceedings as the “REC SPAs”, which the claimants allege they were induced to enter into by false representations by NN, the second and the seventeenth defendants. Under the REC SPAs, the claimants agreed to transfer their shares in REC to companies controlled by NN and not thereafter to seek to rescind the REC SPAs, in return for initial payments totalling US$175m with further sums totalling US$525m becoming payable if a windfarm project known as the Watabak Project (and various other projects) were completed within the times set out in the REC SPAs. The REC shares were transferred by the second to fourth claimants to NN's Companies under the REC SPAs by instruments dated 27 July 2015, and 24 August 2015 respectively. In August 2015, SCB was informed of these disposals.
SCB was content to continue its dealings with WEH following these transfers of the REC shares because NS had ceased to have either indirect control of or interest in WEH and its subsidiaries. The suspended negotiations resumed, leading to the grant of the Watabak Facility by SCB to a WEH subsidiary.
The acquiring companies under the REC SPAs allegedly defaulted in their payment obligations and the claimants commenced two arbitrations on 26 January and 25 March 2016 under the REC SPAs. In the first of the references, rescission and payment of the sums due was sought. In the other reference only payment of the sums due was sought.
On learning of the rescission claim, in March 2016, SCB refused to sign or allow WEH to draw down against the Watabak Facility and refused to discuss financing for future products until this issue had been resolved. The reasoning behind this decision is said to have been that if rescission was granted then NS would regain indirect control and ownership of WEH at a time when the criminal charges against him had not been resolved.
This led to further negotiations between SCB and WEH in which it is alleged by SCB that it was informed of the possibility of a sale to a third party of REC's shares in WEH. Such a disposal (assuming that it occurred in circumstances that meant, as a matter of Thai law, it could not be unwound) would remove the risk that NS would regain indirect control and ownership of WEH, even if ultimately the rescission claim succeeded. Given this reasoning, SCB unsurprisingly required sight of an opinion from WEH's Thai lawyers Weerawong Chinnavat & Peangpanor Ltd (“WCP”) confirming that the proposed sale (to NN's father, the fourteenth defendant) was irrevocable, in good faith and at a fair price, and that in no event would NS have legal grounds to return as a direct or indirect shareholder of WEH. Each of these points were critical to the elimination of the risk that concerned SCB. Following sight of the opinion and confirmation that the sale had taken place SCB permitted drawdown against the Watabak Facility. SCB did not seek independent advice at this stage.
The claimants allege in these proceedings that the purpose or effect of the transfer to NN's father was to deprive REC of its interest in the WEH Shares without adequate or any consideration, for the purpose of ensuring that the claimants could not obtain and/or enforce any right to payment or compensation under the REC SPAs. They allege against SCB that it knowingly acted with NN and NN's companies in furtherance of this conspiracy by “… causing or facilitating or procuring the transfer of the Relevant WEH Shares to …” the fourteenth defendant. Other claims are advanced against the various defendants but what I have summarised is the basis of the claim against SCB. The events alleged against SCB took place in the first six months of 2016.
The Documents
In July 2017, negotiations commenced between the Capital Markets Division of SCB and WEH for a new banking facility for the purpose of enabling WEH and its subsidiaries to commence and complete a series of wind farm projects. The cumulative value of this facility is said to have exceeded the local currency equivalent of about US$1 billion and required approval by the Credit Committee of SCB. At the time of these negotiations, an award in the arbitrations was awaited but had not been received. Currently no...
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Privilege Not Lost Despite Opponent Obtaining Copies Of Documents In Foreign Proceedings
...copies of the documents from a third party pursuant to subpoenas in Thailand: Suppipat v Siam Commercial Bank Public Company Ltd [2022] EWHC 381 (Comm). The decision suggests that where a party has lawfully obtained documents in a foreign state which (as a matter of English law) are obvious......