Nopporn Suppipat v Nop Narongdej
| Jurisdiction | England & Wales |
| Judge | Mr Justice Butcher |
| Judgment Date | 24 November 2020 |
| Neutral Citation | [2020] EWHC 3191 (Comm) |
| Date | 24 November 2020 |
| Docket Number | Case No: CL-2018-000716 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 3191 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
COMMERCIAL COURT (QBD)
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Butcher
Case No: CL-2018-000716
Anthony Peto QC, Victoria Windle, Shane Sibbel and Andrew Trotter (instructed by Willkie Farr & Gallagher (UK) LLP) for the Claimants
Ciaran Keller and Benedict Tompkins (instructed by Harcus Parker Ltd) for the 1st and 17th Defendants David Peters and Ted Loveday (instructed by Stephenson Harwood LLP) for the 2nd, 4th, 5th, 6th & 8th Defendants
John Taylor QC (instructed by Simmons & Simmons LLP) for the 3rd & 7th Defendant
Anna Dilnot (instructed by CMS Cameron Mckenna Nabarro Olswang LLP) for the 9th, 12th & 15th Defendants
Jonathan Davies-Jones QC and David Simpson (instructed by Reynolds Porter Chamberlain LLP) for the 10th Defendant
Patricia Robertson QC and John Robb (instructed by Clyde & Co LLP) for the 11th & 13th Defendants
Hearing dates: 10th, 11th and 12th November 2020
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.
THE HONOURABLE Mr Justice Butcher
I heard a CMC over three days last week in this substantial case. There were two issues on which I reserved judgment, and I give my decision on those two points now. The first relates to the costs of a re-amendment to plead foreign law; the second is an application to strike out or for summary judgment in respect of a claim under s. 423 Insolvency Act 1986.
In order to understand these issues, it is necessary to outline the nature of the case. In what follows I have drawn on the summary given in the Case Memorandum which is at least substantially agreed between the parties.
The Nature of the Case
These proceedings concern, on the Claimants' analysis, an alleged fraudulent conspiracy to deprive the Claimants of shares, with an estimated value (on the Claimants' case) of US$1–2 billion, in Thai energy companies (Renewable Energy Corporation Co Ltd (“REC”), which in turn held shares in Wind Energy Holding Co Ltd (“WEH”)). The Claimants allege that the First Defendant conspired fraudulently to induce the Claimants to transfer their shares in REC, under certain share purchase agreements, to companies owned, or majority owned by the First Defendant. Thereafter, the Claimants allege, the WEH shares were fraudulently and covertly transferred out of REC away to various individuals and offshore entities, thereby depriving the First Defendant's companies of any valuable assets against which the Claimants might enforce any judgments or arbitral awards. It is alleged that various Defendants took measures to conceal and obscure these steps.
This alleged conspiracy is denied by all of the Defendants, with the exception of the Fourteenth Defendant who has ceased to engage and has been debarred from defending these proceedings since March 2020. They deny that it existed and that they participated in it. Further, they deny that the characterisation of the case as a case of conspiracy is valid or meaningful because the Claimants' principal claims are advanced by reference to Thai law which does not recognise conspiracy as a cause of action.
REC and WEH were founded by the First Claimant. They specialise in large-scale wind energy projects. In late 2014, criminal charges were brought against the First Claimant in Thailand. He contends that these charges were politically motivated and denies wrongdoing. He fled Thailand, was granted political asylum in France, and sought to sell his interest in REC, which was held through his other companies (the Second to Fourth Claimants).
The Claimants allege that the First Claimant negotiated with the First and Seventeenth Defendants a transaction (the “Global Transaction”) in which the Claimants would firstly sell their REC shares to the First Defendant via share purchase agreements made with the First Defendant's Companies (the “REC SPAs”), and under which the Claimants would thereafter have a right to repurchase the shares by exercising call options following an IPO of WEH. The Claimants allege that the First, Second and Seventeenth Defendants made misrepresentations which induced the Claimants to enter into the share purchase agreements and transfer their shares in REC to the First Defendant's companies.
These alleged misrepresentations are denied by the First, Second and Seventeenth Defendants. They deny that there was any Global Transaction and that there was ever a right to repurchase the shares. The First and Seventeenth Defendants take the position that the First Defendant was prepared to discuss a separate call option exercisable agreement if the charges against the First Claimant were dropped on appropriate commercial terms, but that ultimately no such agreement was entered into.
The REC SPAs provided, broadly, that shares in REC would be purchased by the First Defendant's companies. US$175 million was payable within 60 days of the share transfer. Further potential payments of US$525 million were contingent and payable in instalments triggered by each of WEH's six outstanding projects achieving their commercial operation dates or an IPO.
Alongside these negotiations, the Second, Third and Fifth Defendants (the Fifth Defendant acting at the Fourth Defendant's direction) entered into an Advisory Services Agreement (the “ASA”) with the Third Claimant, under which they were to provide various services relating to ( inter alia) the REC SPAs.
One of the First Defendant's companies did not pay its first instalment on the payment date specified in the REC SPAs. The First and Seventeenth Defendants contend that the company believed the payment schedule to have been modified. On 6 March 2018, the company paid the amount due under its first instalment into escrow following a partial arbitral award (to which I return). This sum has now been released to the First Claimant's companies.
The Claimants allege that the First and Seventeenth Defendants made further misrepresentations to dissuade the Claimants from seeking to rescind the REC SPAs at that time and attempting to recover the shares in REC. These allegations are denied by the First and Seventeenth Defendants.
The Claimants commenced arbitrations on 26 January 2016 seeking rescission of the REC SPAs or the sums they claimed were due under the REC SPAs. The arbitral awards which resulted therefrom held that the full purchase price of approximately US$700 million under the REC SPAs was due and it was ordered that such sums (to the extent they had not already been paid) plus interest and costs be paid by the First Defendant's companies to the Second, Third and Fourth Claimants. Save for approx. US$176 million, these sums remain unpaid. The arbitral tribunal dismissed the claim for rescission and certain fraud claims. It also dismissed certain counterclaims.
The Claimants allege that after the REC shares were transferred to the First Defendant's companies and the arbitrations were commenced, the Defendants procured a series of transactions intended to put the WEH Shares acquired under the REC SPAs beyond the reach of any attempt by the Claimants to either rescind the REC SPAs or otherwise to enforce against the REC/WEH shares their alleged rights under the REC SPAs and/or any arbitral award.
The Claimants allege that the WEH shares held by REC were transferred to the First Defendant's father, the Fourteenth Defendant. The Fifteenth Defendant says that the Fourteenth Defendant received and held those shares as her agent. By a series of later transactions, WEH shares were transferred to: (a) the Sixth to Eighth Defendants (beneficially owned by each of the Second to Fourth Defendants); (b) the Ninth Defendant, which the Claimants allege is owned beneficially by the First Defendant, but which the First and Fifteenth Defendants allege is owned by the Fifteenth Defendant; (c) the Twelfth Defendant, which is said to be beneficially owned by the Eleventh Defendant and/or the First Defendant, but which the Fifteenth Defendant alleges is owned by the Fifteenth Defendant; (d) the Sixteenth Defendant, and, the Claimants allege, but the Sixteenth Defendant denies, persons holding them on his behalf.
The Claimants allege that the shares in the Ninth and Twelfth Defendants were then transferred to the Fifteenth Defendant, who holds these shares for the benefit of the First Defendant. This is denied by both the First and the Fifteenth Defendant.
The Claimants allege that these transactions were unlawful for various reasons, including that they took place for no consideration, or at an undervalue, or involved breaches of law and duty, or were carried out for an unlawful purpose. The Defendants deny that any of the transactions were wrongful or unlawful. They say that the transfers of the WEH shares were carried out for the legitimate purpose of protecting WEH and its project companies, because the Tenth Defendant, its principal lender, refused to permit the drawdown of any facilities whilst it was possible that the Claimants might regain...
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