Pankim Kumar Patel v Minerva Services Delaware, Inc.
| Jurisdiction | England & Wales |
| Judge | Master Pester |
| Judgment Date | 05 February 2024 |
| Neutral Citation | [2024] EWHC 172 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2021-001958 |
[2024] EWHC 172 (Ch)
Master Pester
Case No: BL-2021-001958
IN THE HIGH COURT OF JUSTICE
Business and Property Courts of England and Wales
Business List (ChD)
Rolls Building
Fetter Lane
London EC4A 1NL
Patrick Harty (instructed by Bark & Co Solicitors Limited) for the Claimant/Applicant
Roger Stewart KC and Christopher Loxton (instructed by Wordley Partnership) for the First Defendant
David Lewis KC and William Skjott (instructed by Morrison Solicitors LLP) for the Second and Third Defendants
Hearing date: 30 October 2023
APPROVED JUDGMENT
This judgment was handed down remotely by circulation to the parties or their representatives by email. The date and time for hand-down is deemed to be 4pm on 5 February 2024.
Introduction
This is my judgment on the Claimant's application, dated 4 May 2023, for permission to amend his Claim Form and Points of Claim. The proceedings were begun by Part 8 Claim Form, which explains the reference to Points of Claim.
The Claimant, Pankim Patel, is represented by solicitors and Junior Counsel. The First Defendant, Minerva Services Delaware, Inc (“MSD”) is represented by solicitors and Leading and Junior Counsel. The Second and Third Defendants, Paul Baxendale-Walker and Mark Barry Slater, are separately represented, again by solicitors and both Leading and Junior Counsel.
The three Defendants all oppose the application to amend. MSD is a company registered in the US state of Delaware. MSD began arbitration proceedings against Mr Patel in Delaware in August 2021 (“the Delaware Arbitration”), and legal proceedings against Mr Patel in Delaware in January 2022 (“the Delaware Proceedings”). Both the Delaware Arbitration and the Delaware Proceedings were discontinued. Mr Baxendale-Walker was formerly a barrister and then a solicitor specialising in tax law, and latterly a pornographer: see Sargespace Limited v Eustace [2013] EWHC 2944 QB), at [1]. He was adjudged bankrupt in 2018, and a bankruptcy restriction order made against him: Official Receiver v Baxendale-Waleker [2020] EWHC 195 (Ch). On Mr Patel's case, at least, he remains able to access large sums of money. Mr Slater is the sole director and shareholder of Bay Mining Consultants Ltd (“Bay”). Bay was the claimant in proceedings brought against Mr Patel in the High Court in April 2021, but discontinued in May 2021 (“the High Court Proceedings”).
Mr Patel brings a claim for both unlawful and lawful means conspiracy. The unlawful means relied on include causing proceedings to be commenced against Mr Patel by one or more entities controlled by Mr Baxendale-Walker and/or Mr Slater, not for any legitimate purpose but to put pressure on Mr Patel, and to give or rely on dishonest evidence. In addition, Mr Patel now says that the unlawful means include relying on a forged document in the proceedings. Mr Patel's case is that both Bay and MSD are companies controlled by Mr Baxendale-Walker and Mr Slater.
At the previous hearing, on MSD's application to strike out the claim against it, I was concerned as to whether Mr Patel had provided sufficient particulars to found a claim in unlawful means conspiracy. After all, in a claim for unlawful means conspiracy, the claimant must prove each unlawful act relied upon as a freestanding wrong and that it was carried out pursuant to the conspiracy: Kuwait Oil Tanker Co SAK v Al Bader [2000] 2 All ER (Comm) 71, at [132]. The point taken by MSD was that commencing litigation is neither a crime, nor a tort, nor a breach of statute, nor breach of contract, all acts which might constitute unlawful means. Mr Patel's Counsel responded that, in certain circumstances, commencing litigation can amount to a tort, either the tort of abuse of process, or malicious prosecution. Rather than accede to MSD's strike out application, I took the view that it was preferable to afford Mr Patel a further opportunity to clarify his pleading.
The proposed amendments to the Points of Claim now expressly plead that, in commencing the High Court Proceedings, Bay committed the torts of abuse of process and malicious prosecution (paragraph 17) and that, in commencing the Delaware Arbitration and the Delaware Proceedings, MSD committed the torts of abuse of process and malicious prosecution (paragraph 18(c)), and that this was done pursuant to a conspiracy and combination between Mr Baxendale-Walker, Mr Slater and Bay. Obviously, the Delaware Arbitration and the Delaware Proceedings relate to events abroad. The central ground of opposition advanced by the Defendants to the application to amend is their submission that the tort of malicious prosecution does not extend to arbitrations generally, nor to foreign proceedings. The tort of abuse of process is likewise said to be limited to proceedings before, and abuses of the process of, this Court, and this court alone, and that this is a point which can and should be determined on an application to amend.
Background
The background to this application is certainly unusual, and rather involved. It is not necessary in this judgment to set out the full background. There has already been one appeal, by MSD, to the Court of Appeal, which was dismissed. A fuller background is set out in my earlier judgment in these proceedings, reported at [2023] EWHC 856 (Ch), as well as the judgments of Mr Lance Ashworth KC, sitting as a deputy High Court Judge, reported at [2022] EWHC 970 (Ch), and of the Court of Appeal, reported at [2023] EWCA Civ 118.
In summary:
(1) In April 2021, Bay commenced the High Court proceedings against Mr Patel, and two others. Bay's position was that it was the assignee of the benefits of a purported Deed of Fiduciary Declaration from 2008 (“the 2008 Deed”) and a further Deed of Fiduciary Declaration from 2021 (“the 2021 Deed”), under which it claimed that Mr Patel held in excess of £11 million on trust for the principal under the Deeds. Mr Patel says that before starting the High Court Proceedings, on or about 25 March 2021, Mr Baxendale-Walker demanded that Mr Patel pay over the monies allegedly held as trustee for Minerva Services Limited Belize (“MSL Belize”) to a company nominated by MSL Belize. (This is admitted by Mr Baxendale-Walker in his Defence, paragraph 10.8.).
(2) In a judgment reported at [2021] EWHC 1304 (QB), Tipples J refused to grant the freezing injunction which Bay had sought against Mr Patel. In her judgment, Tipples J held that Mr Baxendale-Walker was “… clearly involved in the background to this case, if not the person who is driving it”: see at [30]. The proceedings brought by Bay were discontinued on 6 May 2021.
(3) MSD was then incorporated in Delaware in June 2021. The rights under the various Deed were then purportedly assigned to MSD which then commenced the Delaware Arbitration. It is common ground that the arbitration was, at least in substance, in respect of the same sums claimed to have been advanced to Mr Patel under or arising out of or in connection with the 2008 Deed and the 2021 Deed. Mr Patel challenged the jurisdiction of the arbitrator in Delaware on the ground that there was no enforceable arbitration agreement.
(4) Before the arbitrator had given any ruling, Mr Patel commenced these current proceedings, by way of a Part 8 claim dated 28 October 2021, seeking an anti-suit injunction preventing MSD, Mr Baxendale-Walker and Mr Slater from taking any further steps in an arbitration in Delaware, or commencing or pursuing any other claims or proceedings in any other jurisdiction, other than England or Wales arising out of or in connection with the 2008 Deed. The basis for Mr Patel's anti-suit injunction was that the Delaware Arbitration was vexatious and oppressive and an abuse of the Court's process.
(5) On 27 December 2021, the arbitrator held that, as there was a dispute in respect of his jurisdiction, he could not proceed.
(6) MSD then obtained the Delaware equivalent of freezing relief (referred to as “a status quo order”) from the Chancery Court in Delaware on 27 January 2022, by a without notice application (“the Delaware Proceedings”). The relief was discharged by order dated 7 February 2022, and the Delaware Proceedings were discontinued in April 2022.
(7) By order dated 6 April 2022 (but sealed on 9 May 2022), Mr Ashworth granted Mr Patel an anti-suit injunction, and also refused to grant MSD freezing and proprietary injunctions. Among other things, directions were given for the exchange of statements of case. One matter which had troubled Mr Ashworth at an earlier hearing in March 2022 was that, in order to obtain an anti-suit injunction in a case not involving a contract with an exclusive jurisdiction clause in favour of England and Wales, English law requires the existence of proceedings in this country which needed to be protected by the grant of a restraining order. Initially there were no such proceedings. In response to this point (a point which had not been taken by any of the Defendants), Mr Patel filed Points of Claim by which he (a) sought a negative declaration that he is not liable to MSD, and that he does not hold any monies on trust for MSD (b) expressly pleads that he did not sign either the 2008 Deed or the 2021 Deed and (c) brings a claim for unlawful means conspiracy against all three Defendants, seeking both the anti-suit injunction and damages.
(8) On 9 May 2022, MSD filed its Defence and Counterclaim, by which MSD seeks payment of £9,477,178. In June 2022, Mr Patel filed his Reply and Defence to Counterclaim, which was then followed by MSD's Reply to Defence to Counterclaim, also in June 2022. These statements of case are lengthy and detailed, raising numerous allegations and counter-allegations.
(9) In September 2022, MSD applied to strike...
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