Pathfinder Minerals Plc and Others v General Jacinto Soares Veloso and Others

JurisdictionEngland & Wales
JudgeLord Justice Aikens
Judgment Date25 March 2013
Neutral Citation[2013] EWCA Civ 302
CourtCourt of Appeal (Civil Division)
Date25 March 2013
Docket NumberA3/12/2892 (b)

[2013] EWCA Civ 302

IN THE COURT OF APPEAL

CIVIL DIVISION

The Royal Courts of Justice

The Strand

London WC2A 2LL

Before:

Lord Justice Aikens

A3/12/2892 (b)

Between:
(1) Pathfinder Minerals Plc
(2) Im Minerals Limited
(3) International Mercantile Group Limited
Claimants
and
(1) General Jacinto Soares Veloso
(2) Mr Diogo Jose Henriques Cavaco
(3) Jv Consultores Limitada
(A Company Incorporated In Mozambique)
Defendants

MR J McCAUGHRAN QC and MR O BUTLER (instructed by Travers Smith LLP) appeared on behalf of the Claimant.

MR P IRVIN (instructed by Smithfield Partners)) appeared on behalf of the Defendant.

Lord Justice Aikens
1

There are, before the court, a number of applications which are interlocutory applications in respect of a pending hearing for permission to appeal and, if permission be granted, an appeal.

2

The application for permission to appeal and the appeal are made by General Jacinto Soares Veloso, Mr Diogo Jose Henriques Cavaco, and JV Consultores Internationales Limitada, which is a company incorporated in Mozambique.

3

The respondents to these applications and the claimants in the action before the judge are Pathfinder Minerals Plc, IM Minerals Limited, and International Mercantile Group Limited.

4

The matter arises from a dispute concerning shareholdings in a Mozambique company, and in particular, concerning certain agreements ("the agreements") entered into between the appellants and the respondents, pursuant to which, it is said, that the second respondent, IM Minerals Limited (IMM), acquired ownership of 99.99 per cent of shares in a Mozambique company known as Compagnia Miniera de Naburi, or CMDN. The agreements were all governed on their face, expressly by English law, except as to 5 per cent of the shares where it is said that they are impliedly governed by English law. The written agreements all provided for the jurisdiction of the English courts.

5

Until late 2011, CMDN held two mining concession licences issued by the Mozambique Ministry of Mineral Resources for the extraction of heavy mineral sands in Mozambique. However, it is said by the respondents — the claimants in the original proceedings in this country — that in late 2011 the applicants unlawfully and without notice to the respondent/claimants diverted those licences away from CMDN to Pathfinder Mozambique SA ("Pathfinder Mozambique") which was then a newly incorporated company, which was, it is said by the claimants/respondents, a newly incorporated company owned and operated by the applicants.

6

It is said by the claimant/respondents as a result of this action that the applicants sought to take control of CMDN to prevent it from taking any steps to recover the licences and/or compensation for its loss by purporting to terminate or rescind the agreements and to cancel IMM's shares in CMDN. In order to counter this, the claimant/respondents brought proceedings in the Commercial Court in December 2011 to establish the validity and enforceability of the agreements. That led to a number of interlocutory applications concerning proceedings which had been brought by the current applicants in Mozambique. These proceedings in Mozambique were brought by the applicants effectively against the current claimant/respondents.

7

Anti-suit injunctions were issued in the Commercial Court against the applicants. There were also anti-suit injunction proceedings brought by the applicants against the respondents in the Mozambique courts.

8

The present position with regard to anti-suit injunctions is that there are outstanding anti-suit injunctions against the applicants which have been made by the Commercial Court. There are no anti-suit injunctions in favour of the applicants and against the respondents in the Mozambique court. However there is, I am told, an outstanding appeal in the Mozambique courts in an attempt to obtain such injunctions in favour of the applicants.

9

In the proceedings in this jurisdiction there was a trial before Mr Justice Field in September of last year. The applicants did not take part in that trial because their defence and counterclaim had been struck out by order of Mr Justice Clarke in interlocutory proceedings as a result of the applicants' failure to comply with previous orders of the Commercial Court.

10

In a judgment dated 19th October 2012, Mr Justice Field found that IMM had acquired 99.9 per cent of the shares in CMDN, pursuant to the agreements. The judge granted declarations confirming the validity, enforceability and the effect of those agreements. The judge also granted an injunction restraining the applicants from taking any steps to interfere with IMM's rights of ownership of its shares in CMDN.

11

Following that judgment, the applicants issued and served an appellant's notice on 7th November 2012 in which they sought permission to appeal the judgment of Mr Justice Field. The respondents opposed this, saying that no permission should be granted, bearing in mind the outstanding orders that still had not been obeyed by the applicants. It was also submitted by the respondents that even if permission were to be granted, it should be on conditions.

12

On 21st December 2012, I directed that there should be an oral hearing to determine the question of permission to appeal, to be attended by both sides. I also attempted to identify what I described in making this order as a "threshold question", which was whether the applicants were entitled to pursue an appeal at all in the light of the way in which they had conducted themselves in the proceedings below.

13

I invited submissions from the parties as to the most efficient and cost-effective way of managing the permission to appeal application and the possible appeal in the circumstances.

14

On 23rd January 2013, the respondents issued a respondent's notice seeking permission to cross-appeal the judgment in respect of one issue, if permission to appeal were to be granted.

15

Following written submissions from the parties, I made a further order on 31st January 2013 ordering that there should be a single composite hearing to determine: (1) the threshold question of whether the applicants should be entitled to bring an appeal at all; (2) whether permission to appeal should be granted; and (3) the merits of the appeal and cross-appeal if that question was reached. At present, this composite hearing has been listed to start on 22nd or 23rd April and has a time estimate of 1.5 days.

16

The respondents' applications are brought pursuant to my direction that if the respondents wish to bring any application, including one for security for costs of the PTA/appeal, then...

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