St Vincent European General Partner Ltd v Bruce Robinson (and Others)
| Jurisdiction | England & Wales |
| Judge | Mr Salter |
| Judgment Date | 17 November 2016 |
| Neutral Citation | [2016] EWHC 2920 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Claim No CL-2015-000679 |
| Date | 17 November 2016 |
[2016] EWHC 2920 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice. Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Richard Salter QC
Sitting as a Deputy Judge of the High Court
Claim No CL-2015-000679
Mr Charles Samek QC and Mr Rupert D'Cruz (instructed by Shakespeare Martineau LLP) appeared for the Claimant
Ms Elizabeth Weaver (instructed by Taylor Walton LLP) appeared for the 4 th, 6 th and 11 th Defendants
Hearing dates: 5, 6 October 2016
Mr Salter QC:
Introduction
This is an application by the 4 th, 6 th and 11 th Defendants ("the Applicants") for a declaration that the court has no jurisdiction over the claims made against them in this action, and for an order setting aside the proceedings as against them. The ground of the application is that (according to the Applicants) the claims in this action all arise out of or in connection with a Shares Pledge Agreement dated 17 December 2010 ("the Pledge Agreement") to which the Claimant and the Applicants are parties, and which contains a provision conferring exclusive jurisdiction on the courts of Cyprus.
The Claimant's answer to the application is that, by judgments issued on 3 April and 18 September 2015, in proceedings involving the same parties and raising these and other claims, the Nicosia District Court ("the NDC") has already held that the courts of Cyprus do not have jurisdiction to try these claims and that the courts of England and Wales do. The Claimant accordingly submits that the issue of jurisdiction has already been decided in favour of the courts of England and Wales by a judgment which not only binds the parties but also binds this court.
The Applicants make two responses to the Claimant's reliance upon the judgments of the NDC. First, they say that the only reasoned judgment of the NDC was given in an application to which the Applicants in the present case were not parties. That judgment therefore does not bind them. The subsequent NDC order which dismissed the claim against the Applicants themselves was made, in effect, by consent. Secondly, they say that the NDC was considering a more extensive set of claims, covered mainly by agreements conferring jurisdiction on the courts of England and Wales. The NDC was thus choosing between competing jurisdiction clauses. This court (in the Applicants' submission) faces no such conflict and therefore has no such choice. The more limited claims before this court all arise squarely out of or in connection with the Pledge Agreement. It follows (say the Applicants) that the issue of jurisdiction before this court is very different to the issue which was before the NDC, and that this court is therefore not bound by the NDC's decision. Instead, this court is required to give effect to the plain words of the Pledge Agreement conferring exclusive jurisdiction on the courts of Cyprus.
The application is supported by a witness statement dated 26 February 2016 made by Mr Nicholson, who is the son and personal representative of the 11 th defendant. It is opposed by a witness statement dated 17 May 2016 made by the Claimant's solicitor, Mr Tinkler, which is answered in turn by a witness statement dated 19 May 2016 made by the Applicant's solicitor, Mr Carpenter.
The Claimant also sought permission at the hearing before me to rely upon a witness statement from Grigoris Phillippou, the Cypriot lawyer who acted for the Claimant in the proceedings before the NDC. That witness statement, like Mr Tinkler's, was served in May 2016, approximately six weeks after the date when it should have been served. No satisfactory explanation has been given for the late service, although the adjournment of the originally scheduled hearing has meant that the Applicants have in the event had ample time to respond to it. Perhaps more importantly, Mr Phillippou's witness statement consists almost entirely of argument and of expressions of opinion by Mr Phillippou as to the meaning of the judgments of the NDC.
The fact that a person in the position of Mr Phillippou who purports to give expert evidence of opinion is not independent of the party relying upon his evidence may not, of itself, render that evidence inadmissible 1. However, in the present case, Mr Phillippou's opinions are unsupported by any reference to any specific principles of Cypriot law, or to any special principles relating to the construction of judgments under Cypriot law. They simply seek to do the court's job for it, by interpreting the English translations of the judgments of the NDC. In my judgment, Mr Phillippou's opinions on those issues are neither properly admissible as expert evidence, nor helpful to the court 2. I therefore concluded that Mr Phillippou's evidence was not "reasonably required to resolve the proceedings" for the purposes of CPR 35.1, and I accordingly declined to give the Claimant permission to rely upon it.
Ms Elizabeth Weaver appeared for the Applicants. Mr Charles Samek QC and Mr Rupert D'Cruz appeared for the Claimant. I am grateful to all counsel for their helpful submissions.
Background
The background to this dispute is described in Mr Nicholson's witness statement. For the purposes of this Application, the following summary is sufficient:
8.1 In about 2000 or 2001, the 11 th Defendant ("Mr Nicholson senior") invested funds in a property development project in relation to a site in Poland called the Crosspoint Industrial Estate ("Crosspoint"). Crosspoint was owned by a Polish company called Haussmann Developments Polska SP zoo ("HDP"). At Mr Nicholson senior's suggestion, investments in the Crosspoint project
were also made by Jenifer and Stephen Copeland 3 (the 7 th and 8 th Defendants), James Hoseason (the 9 th Defendant) and David Toms (the 10 th Defendant).8.2 Subsequently, Mr Nicholson senior and his co-investors acquired the freehold of the Crosspoint site through a company called Polad Ltd (the 4 th Defendant – "Polad"), and Mr Nicholson senior invested further funds through another company called Thistle Aviation Ltd (the 6 th Defendant – "Thistle").
8.3 Thereafter, Mr Robinson (the 1 st Defendant), his company, Winterbourne Pte Ltd (the 2 nd Defendant — "Winterbourne"), and Molyneux Investments Limited (the 5 th Defendant – "Molyneux") became involved. They introduced as an investor in the project the St Vincent (Crosspoint) Limited Partnership. The Claimant, St Vincent European General Partner Limited (which was then known as St Vincent European Limited) was and is the general partner of the St Vincent (Crosspoint) Limited Partnership. I shall refer to the Claimant as "St Vincent"
8.4 By a series of agreements dated 8 August 2006, the rights in relation to the Crosspoint project were re-arranged. The shares in HDP were transferred to a Cypriot company called Haussmann Holdings Limited ("HHL"). HHL was owned by Winterbourne, Polad and a Mr de Borde. However, by a Share Subscription and Shareholders Agreement dated 8 August 2006 ("the 2006 SPA"), St Vincent bought 60% of the shares in HHL. HHL also assumed responsibility for the majority of the loans due to the investors, and issued loan notes in their favour in relation to those debts. The parties to the 2006 SPA were Winterbourne, St Vincent, Polad, Mr de Borde and HHL. By clause 27 of the 2006 SPA, those parties irrevocably agreed "to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this agreement or the legal relationships established by this agreement". Of the 3 Applicants, neither Thistle nor Mr Nicholson senior were parties to the 2006 SPA
8.5 Under a Sale and Purchase Agreement dated 12 October 2007 ("the 2007 SPA"), St Vincent bought the remaining 40% of the shares in HHL, thus acquiring full ownership and control of HHL and, through HHL, of HDP, and so of the Crosspoint project. The parties to the 2007 SPA were St Vincent, Winterbourne, Polad, Mr de Borde, Mr and Mrs Copeland, Mr Hoseason, Mr Toms and Mr Nicholson senior. By clause 28 of the 2007 SPA those parties irrevocably agreed "to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in
connection with this Agreement". Of the 3 Applicants, only Thistle was not a party to the 2007 SPA.8.6 By a Take Over Agreement dated 1 February 2008 ("the Take Over Agreement"), St Vincent agreed (as had been contemplated in the 2007 SPA) to take on primary liability for the loans made to HHL, HDP and Crosspoint Management Sp zoo ("CP"). The parties to the Take Over Agreement were HDP, CP, HHL, St Vincent, Polad, Thistle, Mr Robinson, Molyneux, Mr Nicholson senior, Mr and Mrs Copeland, Mr Toms and Mr Hoseason. Each of the 3 Applicants was therefore a party to the Take Over Agreement. By clause 33, each of the parties to the Take Over Agreement irrevocably agreed "that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement".
8.7 St Vincent failed to comply with its obligations to repay the loans. Sums of GBP 939,267 in respect of loan repayments and EUR 801,983 in respect of loan notes repayments were due, but only EUR 200,000 was paid. As a result, proceedings were issued against St Vincent in the English High Court on 2 October 2009, and on 4 February 2010 judgments were entered by consent in the sums of GBP 880,563.21 and EUR 751,863.40.
8.8 Preliminary steps to enforce those judgments in the Isle of Man and in Poland resulted in a further agreement. That agreement ("the Framework Agreement") was dated 13 April 2010. It was made between St Vincent, HHL, HDP, CP, and Winterbourne, on the one side, and Polad, Mr Robinson, Molyneux,...
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