Standard Bank Plc (Claimant/Appellant) v Via Mat International Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Aikens,Mr. Justice David Richards |
| Judgment Date | 03 May 2013 |
| Neutral Citation | [2013] EWCA Civ 490 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2012/0835 |
| Date | 03 May 2013 |
[2013] EWCA Civ 490
Lord Justice Moore-Bick
Lord Justice Aikens
and
Mr. Justice David Richards
Case No: A3/2012/0835
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
Mr. Justice Popplewell
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Stephen Auld Q.C. and Mr. Alan Roxburgh (instructed by Mayer Brown International LLP) for the appellant
Mr. Dominic Kendrick Q.C. and Mr. Charles Dougherty (instructed by Clyde & Co. LLP) for the respondents
Hearing dates : 6 th March 2013
Approved Judgment
This is an appeal against the order of Popplewell J. giving summary judgment for the first defendant against the claimant and setting aside service of the claim form and particulars of claim on the second defendant out of the jurisdiction in Hong Kong. It was common ground before us, as it had been before the judge, that the two applications stand or fall together.
The claimant, Standard Bank Plc ("the Bank"), is a well-known company which carries on investment banking operations in many countries around the world, including China, where it operates through its subsidiary Standard Bank Asia Ltd which has its offices in Hong Kong. The defendants are associated companies in the Via Mat Group, both being subsidiaries of Via Mat Management A.G., a company incorporated in Switzerland, which is itself owned by the group holding company, Via Mat Holdings A.G., also incorporated in Switzerland. Other companies forming part of the Via Mat group have been incorporated in various countries, each being a subsidiary of Via Mat Management A.G. It will be necessary at a later stage to consider the relationship between the first defendant, Via Mat International Ltd ("Via Mat UK"), and its associated companies, in particular Via Mat International (Hong Kong) Ltd ("Via Mat HK"). The Via Mat group as a whole carries on the business of providing secure transport and storage services worldwide.
On 9 th July 2001 the Bank entered into what was described as an international transport agreement ("ITA") with Via Mat UK under which Via Mat UK agreed to undertake the carriage and incidental storage of goods for the Bank on the terms of its General Trading Conditions ("the General Conditions"), the current edition then being that which had been published in January 2000. The General Conditions were amended with effect from January 2002 and again with effect from January 2005. It was common ground that by the date of the events with which this appeal is concerned the 2005 edition of the General Conditions governed all dealings between the parties. They provided, so far as is material, as follows:
"In these General Trading Conditions "the Company" is VIA MAT INTERNATIONAL LTD. The Company (whether by itself or the agents referred to at the end of this document) is engaged in various services relating to valuables or special consignments, such as precious … metals …
The party with whom the company trades and/or otherwise contracts is referred to as "the Principal".
Subject to what follows, these General Trading Conditions apply to all activities and business undertaken by the Company for and on behalf of the Principal
…
2. Contract Services
… The Company shall be entitled to perform any of its obligations by itself, agents, parent companies, subsidiary companies, associated companies or sub-contractors and all such parties, through the agency of the Company, shall be entitled to the benefit of these General Trading Conditions….
…
4. Liability and duration of responsibility: goods
…
C. Storage only
Where the Company agrees to arrange or perform storage of goods which is either unconnected to carriage and other services or is connected to carriage but extends beyond 30 days, the Company shall, subject to the exclusions and limitations herein, only be liable for partial and/or total physical loss and damage to goods whilst they are in the actual physical custody of the Company, its employees or authorised warehouse operators and in no other circumstances…."
At the end of the document was a page headed "VIA MAT International Ltd" which read as follows:
"Represented in:
…
Hong Kong Via Mat International (Hong Kong) Ltd
…
The above are acting as agents for Via Mat International Ltd, United Kingdom"
In about 2005 the Bank began purchasing silver in the form of bullion and electronic contact parts from refineries in mainland China. Between about 2005 and 2009 silver bought by the Bank from mainland Chinese refiners was transported to Hong Kong for storage pending its disposal by the Bank on the open market. Some of the goods were stored in a vault operated by Via Mat HK and some in a vault operated by one of its competitors, Brink's. Practical arrangements for the receipt, storage and delivery of the silver were made in Hong Kong between employees of Standard Bank Asia and representatives of Via Mat HK. The head of the Precious Metals department at Standard Bank Asia was Mr. Ellison Chu. His primary point of contact at Via Mat HK was the general manager, Mr. Chen Guo-xing (also referred to as Mr. Gilbert Chan).
In about August 2009 with the support of the Bank Via Mat HK opened a secure vault in Hunan, hoping to attract more business from refiners operating in mainland China. In a letter to the Bank dated 14 th August 2009 Mr. Chen said:
"We would confirm that we are ready to receive, store and process your first shipment of silver shipment [sic] at the above silver storage facility and all your silver shipments in the storage facility will be fully covered by our full liability cargo insurance policy for handling, transit and storage."
Between September 2009 and November 2010 many parcels of silver were delivered into the vault at Hunan by various Chinese refineries from whom the Bank had agreed to buy goods. They included over 150 parcels delivered by two particular refineries, Yongxing Xihe Lead Industry Co Ltd ("Xihe") and Yongxing Jin Rong Materials Technology Co. Ltd ("Jin Rong"). In respect of each parcel received into the vault Via Mat HK issued a document described as a warehouse receipt addressed to the Bank stating that a shipment comprising a certain number of boxes said to contain pure silver and of a certain weight and bearing certain identification marks had been received into the Hunan warehouse and was being held to the irrevocable order of the Bank. There followed an undertaking not to release the shipment or any part of it before receiving written release instructions from the Bank. Via Mat HK advised the Bank each day of the quantity of silver held for its account, which included silver held in Hunan.
In September 2010 the Bank was informed that eight parcels of silver weighing together a little over 20 metric tons that had, or had apparently, been deposited in the vault in Hunan on various occasions between June and November that year were not available for delivery, despite the fact that warehouse receipts had been issued in respect of them. It now appears that some may have been redelivered to the refiner and that others may not have been received in the first place. However, on this, as on many other aspects of the case, the evidence remains unclear. The manager of the vault in Hunan, Mr. Qi Yong-quan, subsequently confessed to the Chinese police that he had been bribed to issue warehouse receipts in respect of goods that were not held in the vault at the behest of representatives of the two refineries. The Bank, which paid the refineries on receipt of confirmation from Via Mat HK that the silver had been received into the vault in Hunan, claims to have suffered a loss of about US$20 million as a result of the fraud.
On 23 rd July 2011 the Bank issued proceedings against Via Mat UK and Via Mat HK in respect of the loss it had sustained in relation to the eight parcels of silver. Both in its claim form and in its particulars of claim it claimed against both defendants damages for breach of contract and breach of duty as bailees on the basis that Via Mat HK had been acting as agent of Via Mat UK in providing services under or pursuant to the ITA. It also made a claim against both defendants for delivery up of the missing silver. On 21 st July 2011 Burton J. had given the Bank permission to serve the claim form on Via Mat HK out of the jurisdiction on the grounds, among others, that it was a necessary or proper party to the claim against Via Mat UK. On 16 th August 2011 the claim form was served on Via Mat HK in Hong Kong in accordance with that order which led in due course to the applications that came before Popplewell J. in March last year. Via Mat UK sought summary judgment under CPR Part 24 dismissing the Bank's claim against it; Via Mat HK sought to set aside service of the claim form on the grounds that there was no real issue between the Bank and Via Mat UK to which it could be a necessary or proper party. The judge acceded to both applications.
It is necessary at this point to say a little more about the relationships between the various parties. The evidence currently before the court indicates that the Bank started buying silver from Xihe under a contract dated 27 th April 2005 for delivery between 1 st May 2005 and 30 th April 2006. The contract expressly provided for delivery to be made to a security agent in Hong Kong nominated by the Bank. Property passed on receipt by the Bank...
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