Strategic Technologies Pte Ltd v Procurement Bureau of the Republic of China Ministry of National Defence
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr |
| Judgment Date | 21 February 2020 |
| Neutral Citation | [2020] EWHC 362 (QB) |
| Docket Number | Case No: FJ90/16 |
| Court | Queen's Bench Division |
| Date | 21 February 2020 |
[2020] EWHC 362 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Carr DBE
Case No: FJ90/16
Mr Hashim Reza (instructed by Bower Cotton Hamilton LLP) for the Claimant
Mr Jonathan Mark Phillips (instructed by Dechert LLP) for the Defendant
Hearing dates: 28, 29, 30 January and 4 February 2020
Approved Judgment
Introduction
This action concerns the registration in England and the enforcement (here and elsewhere) of a judgment in the name of the Claimant, Strategic Technologies Pte Ltd (“ST”) against the Defendant, the Ministry of National Defence (“the MND”) of the Republic of China (“ROC”), also and better known as Taiwan. The judgment (“the Second English Registered Judgment”) was registered by ST upon application without notice in February 2016 pursuant to Part II of the Administration of Justice Act 1920 (“the AJA”). It was based upon a default judgment entered in 2009 by ST against the MND in the Grand Court of the Cayman Islands (“the Cayman Default Judgment”). The Cayman Default judgment was itself entered in an action on a judgment entered by ST against the MND in Singapore in 2002 (“the Singapore Judgment”). ST obtained registration in England of the Singapore Judgment in 2004 (“the First English Registered Judgment”) but does not rely on that registration (which it never sought to enforce).
The Singapore Judgment was entered in proceedings which followed a dispute arising out of the supply of equipment by ST to an underground military facility in Taiwan. ST is a company incorporated in Singapore which is no longer trading. The enforcement of the Second English Registered Judgment is pursued on behalf of investors to whom the Second English Registered Judgment (together with the earlier judgments against the MND) was assigned in equity in March 2019 for the sum of US$150,000. The investors, through an English company known as Red Right Hand Limited, acquired ST for that purpose.
The MND is an arm of the government of the ROC. Although it is by its own law a state, the ROC has an unusual status in international, and English, law: although it has all the generally recognised characteristics of statehood, and is often treated as a country, it is not recognised as a state by the United Kingdom (“the UK”) and there are no formal diplomatic relations between the two. For the purpose of these proceedings only, and without making any wider concession, the MND does not rely on the State Immunity Act 1978.
The MND now applies (by application dated 31 January 2019 (as amended on 29 July 2019)) to set aside the Second English Registered Judgment alongside further relief, including the setting aside of an order made by Supperstone J dated 7 November 2016 granting a certificate under Article 53 of the Judgments Regulation (EU) No 1215/2012 (“Article 53”) (“the Judgments Regulation”) in relation to the Second English Registered Judgment (“the Article 53 Order”), and enforcement steps taken by ST, in particular a Writ of Control which ST has threatened to enforce at various premises, including the Taipei Representative Office (“TRO”) in London (“the Writ of Control”). Alternatively, the MND seeks a general stay of execution or enforcement.
ST contends that the MND's application is totally without merit: it is a “desperate, belated attempt by an evasive judgment debtor to avoid payment” and should be dismissed. The ST has issued a contingent cross-application dated 8 May 2019 for orders under CPR 6.15 seeking to validate service of the Second English Registered Judgment retrospectively if necessary.
Written factual evidence has been served as follows:
i) For the MND: witness statements of Li-Chiang Yuan dated 4 February and 4 April 2019;
ii) For ST: a witness statement of Damian Prentice dated 6 March 2019.
Written and oral expert evidence has been adduced as follows:
i) On Cayman law: from Marc Kish for the MND and Andrew Woodcock for ST;
ii) On Taiwan law: from Professor Yao-ming Hsu for the MND and Hsin-lan Hsu for ST.
As evidenced in the very lengthy skeleton arguments submitted for the parties, the latest round of this dispute, which now goes back some 20 years, has generated a plethora of new (and sometimes overlapping) arguments ranging from substantive points of law and fact to questions of discretion. The history reveals wide-ranging attempts by ST in multiple jurisdictions to enforce first the Singapore Judgment and then the Cayman Default Judgment. The MND has so far succeeded in resisting those attempts — through a combination of action and inaction. It has incurred some £900,000 in costs in this latest series of challenges.
The Facts
The original contract between the parties
By written conditions of contract entered into on 1 May 1996 ST agreed to supply a measuring system to an underground firing range in Taiwan (“the contract”). The conditions supplemented an earlier invitation dated 1 December 1995 and a bid dated 9 April 1996. As security for the performance of its obligations, the MND required and ST procured a performance bond issued by the Development Bank of Singapore. By Article 25 of the conditions, the contract provided for arbitration; by Article 27 of the conditions, it was to be governed by the law of Taiwan.
The proceedings in Singapore
A dispute arose in 1998 and ST commenced proceedings in Singapore to restrain payment under the performance bond by a without notice application for injunctive relief on 8 May 1998 (which was granted). The proceedings were notified to and served outside Singapore on the MND. An unqualified memorandum of appearance was entered by Singapore counsel on behalf of MND on 8 July 1998.
On 7 August 1998 the MND issued a summons to stay the proceedings pending arbitration, alternatively on the ground of forum non conveniens. Further in the alternative the MND sought an extension of time for service of its defence and discharge of the injunction and an enquiry into damages.
The summons was supported by a 15-page affidavit from Lu Sheau-chia sworn on 11 August 1998 in which, amongst other things, the merits of ST's claim as well as the factual basis of the injunction was challenged. It is an important document. Mr Sheau-chia stated that he was “Chief of the Performance Section” of the MND and duly authorised to make the affidavit on behalf of the MND. He stated that the affidavit was filed in support of the MND's application to discharge the injunction and to support the MND's application for a stay of proceedings pending arbitration and also on the ground of forum non conveniens. He denied that the MND was the one unable to perform its part of the contract; ST was the one who “repeatedly delayed certain portions of their Works”. He stated that the evidence of ST was “full of inaccuracies”. Further, the allegation that the MND did not have the funds was “entirely baseless….The [MND] is a Taiwanese government agency with sufficient funds for its projects at all times. Further, whether the [MND] had the budget or not was entirely an internal matter, not one of which should concern [ST]”. ST was in clear breach of its contractual obligations. Mr Sheau-chia went on to identify what he described as ST's further “baseless allegations”. Whether or not the MND re-tendered the contract was irrelevant. The MND never provided specifications that did not comply with the contract. The training venue had always been agreed as Singapore. It was ST who requested postponement of the refund guarantee. The sums claimed by ST were not admitted. There was no basis for ST to insist on rescission of the contract. The MND had every right to call on the performance bond.
As for jurisdiction, Mr Sheau-chia did not dispute that the Singapore courts had jurisdiction. Rather, he stated that “the [MND] is of the view that this matter is better dealt with by the Courts in the Republic of China” and gave the reasons for that. Significantly, given the events that followed, he went on to address the application for a stay of proceedings pending arbitration:
“…The basis is that there is an arbitration clause which deals with any dispute between the parties. As can be seen from the above, the dispute actually deals with the carrying out of the Contractual duties of each party. The issues are therefore covered by the arbitration clause. In this regard, the [MND's] solicitors' letter to [ST's] solicitors dated 7 August 1998, exhibited herewith…, will confirm that [the MND] are ready and willing for an arbitration to take place.” (emphasis added)
The letter dated 7 August 1998 from the MND's solicitors to ST's solicitors did indeed do just that:
“…. In the premises, we give notice on our clients' behalf that our clients are ready and willing to refer the dispute to arbitration in Taipei, Republic of China. As such, kindly let us have your clients [sic] immediate confirmation that they will agree to stay all present proceedings in Singapore and proceed to arbitration in Taipei as soon as possible…” (emphasis added)
On 17 November 1998 the Singapore High Court, with express reference to the MND's evidence, acceded to the MND's application for a stay in favour of arbitration (but not forum non conveniens). It refused the MND's application for discharge of the injunction and claim for an enquiry into damages.
Despite its clear representations, not only to ST but also the Singapore High Court, that it was ready and willing to arbitrate, and for reasons which remain unexplained to this day, the MND then declined to arbitrate. On 5 and 7 January 1999 ST's solicitors corresponded with the MND's solicitors in relation to the...
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