Mr Nopporn Suppipat v Mr Nop Narongdej
| Jurisdiction | England & Wales |
| Judge | Mr Justice Calver |
| Judgment Date | 31 July 2023 |
| Neutral Citation | [2023] EWHC 1988 (Comm) |
| Court | King's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2018-000716 |
[2023] EWHC 1988 (Comm)
Mr Justice Calver
Case No: CL-2018-000716
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Justin Fenwick KC, George Spalton KC, Lucy Colter, Marie-Claire O'Kane, Ian McDonald, Carola Binney (instructed by Willkie Farr & Gallagher (UK) LLP) for the Claimants
Tim Penny KC, Ciaran Keller, Benedict Tompkins, Gretta Schumacher (instructed by Harcus Parker Limited) for the First and Seventeenth Defendants
Derrick Dale KC, Joseph Farmer (instructed by Signature Litigation) for the Second to Eighth Defendants
The Ninth, Twelfth, Fourteenth and Fifteenth Defendants were unrepresented
The Sixteenth Defendant was unrepresented and did not appear
Jonathan Davies-Jones KC, David Simpson, Georges Chalfoun, Clarissa Jones (instructed by RPC) for the Tenth Defendant
Ruth den Besten KC, John Robb (instructed by Clyde & Co) for the Eleventh and Thirteenth Defendants
Hearing dates: Monday 17th October 2022 – Thursday 2nd March 2023
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 9:15 on Monday 31 st July 2023.
Contents
| FACTUAL NARRATIVE | 10 |
| BACKGROUND TO THE CLAIM | 10 |
| The parties to the claim | 10 |
| Transfer of REC shares | 11 |
| WEH and its wind power projects in Thailand | 11 |
| WEH IPO preparation: valuations of company in 2014–2015 | 13 |
| Mr Suppipat's exile and consequent exit from REC | 14 |
| Impact on WEH's projects of the lèse-majesté charge | 17 |
| (1) Khao Kor | 17 |
| (2) FKW and KR2 | 18 |
| (3) Watabak | 18 |
| Attempts to sell Mr Suppipat's shares: valuations of WEH | 19 |
| MISREPRESENTATION CLAIMS | 21 |
| Initial negotiations | 21 |
| Mr Suppipat decides to sell to a nominee | 21 |
| Negotiations with Khun Nop begin: the Global Transaction Structure | 22 |
| The Skype Call of 17 May 2015 | 25 |
| Nop is to be Mr Suppipat's nominee; no due diligence carried out | 27 |
| Linklaters advice on disclosure of a call option | 32 |
| Increase in purchase price to $713m and the conclusion of the deal | 34 |
| WEH Managers' continued involvement in the call option | 36 |
| REC SPAs | 38 |
| The REC Share Purchase Agreements | 38 |
| The KPN EH Shareholders Agreement: the WEH Managers' blocking mechanism to protect Mr Suppipat | 40 |
| The Advisory Services Agreement | 43 |
| Negotiations to enter into a Call Option Agreement | 45 |
| The First Paris Meeting | 45 |
| First draft Call Option Agreement | 48 |
| Second draft Call Option Agreement | 51 |
| Consideration by SCB of Khao Kor | 51 |
| SCB's failure to enquire into (i) the deferred payment structure under the REC SPAs and (ii) the “Gentlemen's agreement” | 52 |
| The Bangkok Meeting – the draft Steps plan and MOU | 54 |
| REC SPAs amended and restated | 56 |
| REC share transfer instruments | 57 |
| Proposed escrow arrangement | 57 |
| Watabak financing | 58 |
| Third Draft Call Option and Steps Plan | 59 |
| The (lack of) response | 60 |
| Memorandum of Understanding | 62 |
| The Symphony transfer and the Watabak Representations | 64 |
| WEH Managers' awareness of the call option documents | 67 |
| Watabak Facility | 67 |
| Meeting in Bangkok | 68 |
| The Cannes Meeting | 72 |
| First Instalments and financing issues | 74 |
| Nop's attempts to source funds to meet the purchase price | 74 |
| MBK | 75 |
| Payment Representations | 76 |
| Second Paris Meeting and First Payment Representations | 76 |
| Second Payment Representations | 78 |
| ASSET STRIPPING CLAIMS | 80 |
| Preparations for asset stripping scheme | 80 |
| Payments made under REC SPAs in late 2015 | 80 |
| Grant Thornton report | 81 |
| 2016 Arbitration proceedings; Emergency Measures and the BVI injunction | 84 |
| SCB's knowledge of and reaction to the arbitration proceedings | 88 |
| Engagement of Khun Weerawong | 94 |
| Emergency Arbitrator grants emergency measures | 97 |
| The 17 March 2016 meeting and the ring-fencing strategy | 100 |
| 1.25% stake for WEH Managers | 103 |
| Project Houdini presentation | 104 |
| SCB IPO Engagement Letter | 107 |
| SCB Summary Chart of Dispute | 108 |
| 29 March 2016 meeting of SCB and WCP | 110 |
| White Boards | 114 |
| Termination of the KPN EH SHA | 119 |
| 7 April 2016 Meeting Minute | 121 |
| Termination of ASA | 123 |
| Drafting of First WCP Opinion | 124 |
| The Kasem Transfer | 130 |
| (1) REC Notices and Minutes | 131 |
| (2) Kasem Agency Agreement | 135 |
| (3) Kasem SPA | 143 |
| (4) Kasem Transfer Instrument | 146 |
| (5) Tassapon Transfer Instrument and Revenue Receipt | 147 |
| Application to Emergency Arbitrator | 151 |
| (6) Purchase Price | 151 |
| (7) The Ploenchit Report | 153 |
| (10) Repeated failures to update the WEH share register | 160 |
| (11) Watabak waiver request and 17 May Credit Committee Meeting | 162 |
| (12) Emergency Arbitrator's refusal | 163 |
| (13) Finalisation of First WCP Opinion | 164 |
| (14) SCB awareness of the Kasem Transfer | 167 |
| ExCom Meeting of 25 May 2016: consideration of Watabak Facility | 178 |
| SCB's lack of awareness of Kasem SPA purchase price | 182 |
| Inspection of transfer documents | 183 |
| Second WCP Opinion | 186 |
| Watabak share pledge waiver considered and granted | 188 |
| Drawdown on Watabak | 190 |
| (15) Circular payments under the Kasem SPA | 190 |
| (16) Wichai/ Itti Loan Agreements | 191 |
| (17) The Orix Negotiations | 193 |
| (18) Further Gunkul negotiations | 203 |
| Further transfers of Relevant WEH Shares; arbitrations under REC SPA | 204 |
| (1) SPV SPAs | 204 |
| (2) Failure to satisfy Escrow Condition | 205 |
| (3) Golden Music SPA | 208 |
| (4) Pradej SPA | 209 |
| (5) First Partial Awards in the Arbitrations and the IPO | 211 |
| (6) Preparations for the IPO and WEH Managers' 1.25% stakes | 212 |
| (7) Janyaluck SPA | 220 |
| (8) Cornwallis SPA | 220 |
| (9) Belize injunction against Cornwallis | 224 |
| (10) Cornwallis-Opus Share Transfer; Srun-Nop Loan Agreement | 225 |
| (11) Letter of indemnity | 231 |
| (12) “Loan Agreements” Between Khun Nop and Khun Pradej | 232 |
| (13) Second Partial Awards under 2016 Arbitrations | 233 |
| LEGAL ANALYSIS – PRELIMINARY REMARKS | 234 |
| The contemporaneous documentary evidence | 234 |
| The burden of proof concerning allegations of fraud | 235 |
| The factual witnesses | 236 |
| Expert evidence on Thai Law | 237 |
| MISREPRESENTATION CLAIMS | 238 |
| The pleaded misrepresentations | 238 |
| The Global Transaction Representations | 238 |
| (1) Limitation | 239 |
| (2) Is the Section 341 offence sufficiently pleaded? | 247 |
| (3) The merits of the s. 341 offence | 251 |
| (4) The requirements of s. 420 TCCC | 254 |
| (5) The merits of the s. 357 offence | 256 |
| (6) s. 421 TCCC: Abusing Cs' rights | 258 |
| The Watabak Representations | 260 |
| (1) Merits | 260 |
| The Payment Representations | 263 |
| (1) Applicable law | 263 |
| (2) Time bar | 266 |
| Abuse of process | 266 |
| (1) The HP Defendants' submissions | 266 |
| (2) The Claimants' submissions | 268 |
| (3) Factual analysis | 270 |
| (4) The law | 278 |
| ASSET STRIPPING CLAIMS | 284 |
| s. 420 TCCC: Unlawfully causing injury | 284 |
| (1) s. 350 TPC: cheating against creditors | 287 |
| (2) s. 421 TCCC | 307 |
| (3) Combining together to effect the transfer causing harm to Cs | 308 |
| (4) s. 237 TCCC: rescission of transactions which cheat creditors | 308 |
| (5) Falsifying of documents contrary to sections 179, 264, 265 and 268 TPC | 310 |
| (6) Breach of directors' duties under s. 1168, 1206 and 1207 TCCC | 315 |
| (7) Non-performance of the Kasem SPA | 319 |
| (8) Further alleged elements of unlawfulness | 320 |
| (9) The other elements of the section 420 claim (based on s. 350 TPC) | 323 |
| s. 432 TCCC: Joint wrongdoers/ assisters/ instigators | 326 |
| (1) Joint wrongful act: s. 432(1) | 326 |
| (2) Instigation/ assistance: s. 432(2) | 327 |
| (3) Applying the law to the facts | 331 |
| Limitation | 341 |
| (1) s. 420/ s. 350 claim | 342 |
| Submissions | 342 |
| (2) s. 432 claim | 348 |
| s. 423 Insolvency Act | 350 |
| (1) Sufficient connection with England and Wales | 351 |
| (2) Impossible to get a fair trial in Thailand? | 359 |
| Quantum | 361 |
| (1) The primary participants (under s. 420 TCCC (based on s. 350 TPC)) | 362 |
| (2) Against the secondary participants | 378 |
| The ASA and related claims | 380 |
| (1) The relevant obligations under the ASA | 381 |
| (2) The claim for breach of the ASA and the counterclaim | 384 |
| (3) Is the ASA forward or backward looking? | 384 |
| (4) Breaches of the ASA | 389 |
| (5) Breach of fiduciary duty | 393 |
| (6) Tort of bribery | 398 |
| (7) Unlawful means conspiracy | 404 |
| SUMMARY OF FINDINGS | 407 |
| Misrepresentation Claims | 407 |
| Asset-Stripping claims | 408 |
| POSTSCRIPT | 410 |
FACTUAL NARRATIVE
BACKGROUND TO THE CLAIM
The parties to the claim
The First Claimant ( Mr Suppipat) is a successful Thai businessman who founded Renewable Energy Corporation Company Limited ( REC) in 2006 and Wind Energy Holding Company Limited ( WEH) in 2009....
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