Pathfinder Minerals Plc and Others v General Jacinto Soares Veloso and Others General Jacinto Soares Velso and Others (Part 20 Claimants) Pathfinder Minerals Plc and Others (Part 20 Defendants)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Field |
| Judgment Date | 19 October 2012 |
| Neutral Citation | [2012] EWHC 2856 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No 2011Folio1548 |
| Date | 19 October 2012 |
[2012] EWHC 2856 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Bristol Crown Court
Small Street
Mr Justice Field
Case No 2011Folio1548
and
and
Craig Orr QC and Oliver Butler (instructed by Travers Smith LLP) for the Claimants
The Defendants did not appear and were not represented
Hearing date: 18 September 2012
Introduction
This is the Claimants' application for judgment. By an Order dated 6 July 2012 Christopher Clarke J directed that the Defendants' Defence and Counterclaim be struck out and a hearing fixed on an expedited basis for the final disposal of the Claimants' contract claims. That hearing took place before me on 18 September 2012.
These proceedings were commenced on 19 December 2011. On the same date, the Claimants applied for and obtained injunctive and associated relief on a without notice basis from Blair J ("the Interim Injunction").
The 1 st Defendant ("General Veloso") and the 3 rd Defendant ("JVC") were formally served in Mozambique on 27 December 2011, and the 2 nd Defendant ("Mr Cavaco") was formally served on 4 January 2012.
By letter dated 2 February 2012, the Defendants' solicitors, Smithfield Partners ("Smithfield"), indicated that their clients intended to challenge both the jurisdiction of the English court and the continuation of the Interim Injunction and on 14 March 2012 the Defendants issued an application (out of time) challenging the English court's jurisdiction in respect of the Claimants' contract claims. However, at the eleventh hour before the hearing due to take place on 19 March 2012, they agreed to the dismissal of their jurisdiction challenge and to give undertakings to the Court in substantially the same terms as the Interim Injunction.
The trial of the contract claims was fixed to commence on 29 October 2012 and on 20 March 2012 the Defendants filed an Acknowledgment of Service in which they indicated an intention to defend the claim. As a result, pursuant to CPR 11(8), they were to be treated as having accepted that the English court had jurisdiction to try the claim.
Notwithstanding their submission to the English jurisdiction, the Defendants applied on 19 March 2012, without notice to the Claimants, to the First Division of the Commercial Court of Maputo City (the "Maputo Court") for an interdict preventing the 2 nd Claimant ("IMM") from continuing this action in England. It is to be noted that this application was made the day after the Defendants had abandoned their challenge to the jurisdiction of the English court and on the very same day that they confirmed to the English Court that they consented to dismissal of their jurisdiction challenge and concurred in the making of directions for the future conduct of this action in England. In their application to the Maputo Court the Defendants did not reveal that they had voluntarily submitted to the jurisdiction of the English Court
Without hearing from IMM, Judge Monjane of the First Division of the Commercial Court of Maputo City granted the Defendants an anti-suit interdict (the "Interdict") on 13 April 2012 ordering IMM to refrain from taking any action before the English Courts under the jurisdiction clauses contained in two agreements that will be referred to below, the Share Option Agreement and Novation Agreement, in relation to share options relating to Companhia Mineira de Naburi SA ("CMDN"), until a ruling has been issued by the Mozambican Courts and has acquired the force of res judicata.
At a hearing in Maputo on 3 May 2012, Judge Monjane confirmed that the Interdict did not apply to the proceedings then on foot in London and only applied to new actions, not yet commenced. She confirmed that she was unaware of the English proceedings when she granted the Interdict and had no intention of interfering with proceedings which were already underway in London and had been the subject of orders for directions by the English Court.
On the morning of the hearing on 3 May 2012, the Defendants filed a further written submission with the Maputo Court seeking to extend the Maputo Interdict so that it covered (a) Pathfinder and IMG as well as IMM, and (b) the current as well as any future proceedings.
On 15 May 2012, the Claimants applied for (and obtained) ex parte an anti-suit injunction from Hamblen J restraining the Defendants from bringing or pursuing any application or proceedings before the Maputo Court or taking any other steps in the Mozambique Courts seeking to restrain the Claimants from pursuing this action in England and requiring the Defendants forthwith to withdraw any such application or proceedings.
At the first return hearing on the anti-suit injunction on 18 May 2012, the Defendants were ordered to notify the Maputo Court in writing of the anti-suit injunction forthwith, and to request the Maputo Court that no ruling be made on their anti-suit proceedings in the Maputo Court until after the English court had ruled on the continuation of the anti-suit injunction on the adjourned hearing of the return date. However, the Defendants failed to comply with this Order.
Further, the Defendants failed to serve their evidence in support of their challenge to the continuation of the anti-suit injunction by 4.00 pm on 24 May 2012 (as they had been directed to do) and on 25 May 2012, their solicitors informed the Claimants' solicitors, Travers Smith, that the Defendants intended to take no further part in the English proceedings and that Smithfield were no longer instructed.
On 30 May 2012, Teare J ordered the anti-suit injunction to be continued until trial or further order.
The Defendants defaulted on their obligation to exchange lists of documents by 4.00 pm on 25 May 2012 as directed by Court and thus it was that on 6 July 2012 Christopher Clarke J ordered that the Defendants' Defence and Counterclaim be struck out and a hearing be fixed on an expedited basis for the final disposal of the Claimants' claims. The Defendants were further ordered to pay the Claimants' costs of the application on the indemnity basis. In making this order, Christopher Clarke J said:
" The defendants have flagrantly refused to comply with the anti-suit orders made by this court. They have also failed to comply with other orders of this court; and they have made misleading statements to the court in Maputo as to the position in this country…"
The Claimants' witnesses
The principal witness for the Claimants is Mr Nicholas Trew, the CEO of the 1 st Claimant ("Pathfinder") and a director of IMM and of the 3 rd Claimant ("IMG"). Mr Trew has had a long career in the field of insurance broking.
The other factual witnesses for the Claimants are Mr James Normand, Mr John McKeon, Mr Timothy Baldwin and Mr Gordon Dickie. Mr Normand is a qualified chartered accountant. He was appointed to the board of Pathfinder in December 2009. Mr McKeon's background is in stockbroking, corporate finance, property and project finance. He became a director of IMM on 8 September 2009, and Chairman of Pathfinder on 9 February 2011. Mr Dickie's background is in engineering. He was appointed a director of IMM on 4 July 2008, and a director of CMDN on 8 October 2009. He was a director of Pathfinder between February 2011 and September 2011. Mr Baldwin is a corporate financier with substantial experience in the mining sector. He is a director of IMM, and was a non-executive director of Pathfinder between February 2011 and June 2011.
The Claimants have also served: (i) a witness statement from Ms Edwards of Travers Smith (solicitors for the Claimants) explaining the provenance of the CMDN Share Registry Book; and (ii) an expert report from Mr Jose Caldeira on certain issues Mozambique law. Mr Caldeira is Managing Partner and Head of the Corporate and Litigation Department of SAL & Caldeira Advogados, Lda. He is an attorney qualified to practice law in Mozambique with 30 years' experience.
The Claimants' witnesses have confirmed the truth of their witness statements on oath and I accept the truth of their testimony. Where their evidence conflicts with evidence served by the Defendants, I prefer the former rather than the latter. The Claimants' witnesses all attended at the hearing of this application to make themselves available for questioning by the Defendants and the Court. In the event, the Defendants did not appear and the Court was of the view that it was unnecessary to question the Claimants' witnesses.
The Defendants
General Veloso is a Mozambican citizen and is domiciled there. He is the Managing Director of JVC, of which company he appears to be sole beneficial owner. He was a non-executive director of Pathfinder from June 2011 until his resignation in November 2011. He was also a director of CMDN until his removal on 17 January 2012.
Mr Cavaco is a Portuguese citizen and is believed to be domiciled in Portugal. He is a lawyer and has considerable experience as a manager of civil engineering, construction and public works projects.
JVC is a company incorporated in Mozambique. It is believed to be beneficially owned and controlled solely by General Veloso
The Defendants' witnesses
The Defendants have not served any evidence for the purpose of the trial of the Claimants' contract claims but on 17 February 2012 they served witness statements from Mr...
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