Standard Bank Plc (Claimant) (1) Via Mat International Ltd (2) Via Mat International (Hong Kong) Ltd (Defendants)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE POPPLEWELL,Mr Justice Popplewell |
| Judgment Date | 16 March 2012 |
| Neutral Citation | [2012] EWHC 574 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 16 March 2012 |
| Docket Number | Case No: 2011- Folio 901 |
[2012] EWHC 574 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings, Fetter Lane, London, EC4A 1NL
Mr Justice Popplewell
Case No: 2011- Folio 901
Stephen Auld QC and Eleanor Campbell (instructed by Mayer Brown International) for the Claimants
Dominic Kendrick QC and Charles Dougherty (instructed by Clyde & Co) for the Defendants
Hearing date: 7 March 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
There are two applications before me. The first is an application by the First Defendant ("Via Mat UK") for summary judgment pursuant to CPR Part 24. The second is an application by the Second Defendant ("Via Mat Hong Kong") seeking to set aside the order of Burton J dated 25 July 2011 by which permission was granted to serve Via Mat Hong Kong out of the jurisdiction. By the beginning of the hearing it had become common ground that the outcome of the second application depended upon resolution of the first. It was accepted by the Claimant ("The Bank") that if Via Mat UK's summary judgment application were successful, Via Mat Hong Kong's jurisdiction challenge must succeed. Conversely it was accepted on behalf of Via Mat Hong Kong that its jurisdiction challenge would fail if the summary judgment application by Via Mat UK failed.
The Bank is an international investment bank based in London, with a subsidiary, Standard Bank Asia Limited ("Standard Bank HK") operating from Hong Kong. Via Mat UK is an English company. Via Mat Hong Kong is a company incorporated in Hong Kong. Each is part of the Via Mat Group, each being a subsidiary of a Swiss parent company, Via Mat Management AG, which itself is a subsidiary of a Swiss holding company.
The dispute arises in relation to eight consignments of silver totalling approximately 20 tonnes ("the Silver") which were, or were represented to have been, delivered to a vault ("the Vault") operated by Via Mat Hong Kong in Chenzhou, in the Hunan Province of China. Via Mat Hong Kong issued confirmations of receipt to the Bank in relation to each consignment on various dates between about 10 June and 2 November 2010 ("the Confirmations").
The Confirmations make clear both in their heading and above the signature that they are confirmations which are being given by and on behalf of Via Mat Hong Kong. They are in identical terms save as to details of date of receipt, identification of the refinery and the description of the silver. That relating to the consignment said to have been received on 10 June 2010 is in the following terms:
"We are pleased to confirm that the following shipment has been received by our Hunan warehouse:
Date of Receipt
10 JUN 2010
Commodity (said to contain)
Silver Ingots
PCS
170 Boxes
Net weight (per shipper bar list)
5100KG
Net weight (VMI Weight)
—
Shipper
Xihe
Lot No.
SBA-(H)-201
We are holding the above mentioned shipment to the irrevocable order of Standard Bank plc without any set off or counterclaim. We would not release the shipment or any part of the shipment prior to receiving written release instructions from Standard Bank plc, duly signed by your authorised signatory, by authentic fax to (852) 3151 7101 or email to vmi.hongkong @viamat. com"
The Silver had been sold to the Bank by two refineries in China who can be called, for brevity, Xihe and Jin Rong. The employee in charge of the Vault on behalf of Via Mat Hong Kong was Mr Qi Yong-Quan ("Mr Qi"). On 25 November 2010 it emerged, following conversations between the Bank and Via Mat Hong Kong's head office, that the Silver was missing from the Vault. Investigations were made which suggested that Mr Qi had issued or procured the issue of false delivery receipts and false stock inventory reports; and that he had done so in return for bribes in circumstances where silver had either not been delivered to the Vault, or had been delivered and returned to the refinery. Mr Qi has been convicted in China of receiving bribes and sentenced to three years imprisonment, suspended for four years. The Chinese Authorities sealed the storage facility, which has hampered and continues to hamper access to documents held there. The Defendants have not had access to Mr Qi for the purposes of adducing evidence on these applications.
The claim against Via Mat UK is put as one for breach of contract and in bailment. It is not, however, contended on behalf of the Bank that Via Mat UK ever took possession of the Silver, or that the bailment claim could succeed independently of the claim in contract. Mr Auld QC on behalf of the Bank submits that the contract pursuant to which Via Mat UK agreed to handle the silver, and under which its contractual liability arises, is contained in an International Transport Agreement dated 9 July 2001 ("the ITA") and the General Trading Conditions of Via Mat UK ("the GTC") which were incorporated therein.
Mr Kendrick QC on behalf of the Defendants accepts that Via Mat Hong Kong has a serious case to answer in relation to the missing Silver. He accepts that if the Silver was received at the Vault, there is an arguable case that Via Mat Hong Kong are liable in bailment or conversion; and that if the Silver was never received in the first place at the Vault, Via Mat Hong Kong face a seriously arguable case of liability by reason of the issue of the Confirmations.
He submits, however, that the proper analysis of the contractual arrangements, which does not depend on disputed issues of fact, shows clearly that there is no claim with a real prospect of success against Via Mat UK. He submits that the ITA was no more than a framework agreement which was to apply if and when the Bank agreed for particular carriage or storage services to be provided by Via Mat UK. He submits that it is not by its terms apposite to cover the services which Via Mat was providing in this case which were storage services. But in any event, he submits, it does not create any contractual relationship in relation to any particular goods unless and until the Bank actually makes an agreement with Via Mat UK in respect of such goods. He contends that no such agreement was made in respect of the Silver; that the Bank did not give any instructions to anyone in relation to these shipments; that the Bank did not pay anyone in relation to any services in respect of these shipments; that the Particulars of Claim and the Bank's evidence do not identify any mechanism by which these shipments could properly be said to have become the subject matter of any specific agreement under the framework of the ITA. He contends that the relationship between the entities concerned with the Silver was that the Bank purchased the Silver from the refineries on terms which required the refineries to deliver it in Hong Kong; that the refineries contracted with Via Mat Hong Kong for performance of the services of storage at the Vault and onward carriage to Hong Kong; that the only contractual obligations owed by either of the Defendants were owed by Via Mat Hong Kong, not Via Mat UK; and that those contractual obligations were owed to the refineries, not the Bank.
Before coming to the arguments on behalf of the Bank it is convenient to set out the evidence of the contractual arrangements between the various entities involved with the Silver.
The Contracts
The ITA is a single page document dated 9 July 2001 expressed to be between Via Mat UK, defined as "The Company", and the Bank defined as "The Client". It provides that it is governed by the current version of the GTC which is to form an integral part of the agreement. In a box headed "The Schedule" it provides amongst other things:
| Charges | As per individual quotes per Destination and according to agreed delivery terms |
| Services | • Door to door, inclusive of insurance • Or from domicile to free arrival airport at destination (touchdown or airport vault), including insurance if no agreed agent is available at destination • Or ex FOB airport at origin to domicile at destination including insurance, if there is no agreed agent available in country of origin. |
The GTC in force at the time and attached to the ITA were those set out in the January 2000 edition. It is accepted by both sides that for present purposes the relevant terms are those set out in 2005 edition. Neither party suggested that any differences between the two editions were material to the present applications.
The GTC provided as follows:
"In these General Trading Conditions, "The Company" is [Via Mat UK]. 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 and semi precious metals, precious stones, jewellery, currency, cheques, travellers cheques or other negotiable documents and cash or any other goods of a sensitive or valuable nature…. All items carried or otherwise dealt with… shall be collectively referred to as "goods" or "the goods" as the context admits"
The "agents referred to at the end of this document" were those identified on a separate page. The page bore Via Mat UK's heading and said that it was "represented in" various territories by individually identified Via Mat companies incorporated in those local jurisdictions. The 2005 edition of the GTC did not have China identified as a territory, but it did identify Hong Kong as a territory and identified Via Mat Hong Kong as the representative in...
To continue reading
Request your trial
-
Standard Bank Plc (Claimant/Appellant) v Via Mat International Ltd and Another
...OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION (COMMERCIAL COURT) Mr. Justice Popplewell [2012] EWHC 574 (Comm) Royal Courts of Justice Strand, London, WC2A 2LL (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Co......