Strategic Technologies Pte Ltd v Procurement Bureau of the Republic of China Ministry of National Defence
| Jurisdiction | England & Wales |
| Judge | Clare Ambrose |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWHC 754 (KB) |
| Docket Number | Case No: FJ328/04 |
| Court | King's Bench Division |
[2023] EWHC 754 (KB)
Ms Clare Ambrose
(Sitting as a Deputy High Court Judge)
Case No: FJ328/04
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Damian Prentice (as the Claimant's director) for the Claimant
Ms Catherine Gibaud KC & Ms Clarissa Jones (instructed by Dechert LLP) for the Defendants
Hearing dates: 13 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 31 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The parties have been involved in litigation in several countries over many years going back to 1998. The proceedings in this jurisdiction go back to 2004 and relate to recognition and enforcement proceedings in respect of a judgment made by the High Court of Singapore in the Claimant's favour on 10 December 2002 (“the Singapore Judgment”).
On 16 December 2004 Master Leslie ordered that the Singapore Judgment be registered as a judgment of this court under the Administration of Justice Act 1920 (“the AJA 1920”). The Claimant now seeks permission to enforce by way of writ of control and also applies for a third party debt order against a third party called First Commercial Bank.
This is the hearing of three applications:
a) The Claimant's application dated 16 August 2022 (stamped 1 September 2022) for permission under CPR rule 83.2(3) to seek writs of execution (“the Permission to Enforce Application”);
b) The Claimant's application dated 16 August 2022 for a third party debt order (the TPDO Application) that First Commercial Bank (London Branch) pay the debt owed to the Claimant under the judgment given on 16 December 2004 (“the 2004 Judgment”);
c) The Defendant's application dated 27 October 2022 for an order that, to the extent that the court allows enforcement, the 2004 Judgment be set-off against the costs orders made against the Claimant (“the Set-Off Application”).
Background and Parties
Much of the factual background is set out in the judgment of Carr J [2020] EWHC 362] and the Court of Appeal [2020] EWCA Civ 1604 relating to the Claimant's attempt in separate proceedings between the same parties to enforce a separate order (“the 2016 Judgment”) by which a default judgment from the Grand Court of Cayman (“the Cayman Default Judgment”) was registered in this court on 4 April 2016. Carr J decided that the 2016 Judgment should not be set aside. This decision was successfully appealed and the Court of Appeal ordered on 30 November 2020 that the 2016 Judgment should be set aside and that the Claimant should pay the Defendant's costs in the High Court and Court of Appeal.
At paragraph 114 of her judgment Carr J set out a detailed chronology that summarised the enforcement history leading up to the writ of control issued on 11 January 2019 in relation to the 2016 Judgment. She also gave a fuller account of the background. The judgment of Carr J and the Court of Appeal also set out the procedural background to the applications that came before them. I do not repeat this background which was not disputed but outline the more essential elements.
It was common ground that the Defendant is an instrumentality of the Republic of China (“ROC”), more commonly known as Taiwan. Carr J described it more helpfully as an arm of the government of the ROC. Its London solicitor, Mr Andrew Hearn, made two witness statements in support of its position in the proceedings before me.
The Claimant is a Singaporean company. In March 2019 a number of investors took an assignment of the Claimant's judgments against the Defendant (see Carr J [4]). The Claimant entered into members' voluntary liquidation in Singapore on 24 August 2022.
Mr Prentice is the Claimant's sole director and was authorised to represent the Claimant at the hearing. He had a strong knowledge of the background and the issues, and was skilful in putting forward the Claimant's case. He served several witness statements on its behalf. Mr Prentice's evidence is that the Claimant's only asset is the judgment debt from the Singapore Judgment and that it has no other means to pay costs orders.
The relationship between the parties goes back to a contract between them dated 1 May 1996 relating to the supply to the Defendant of a measuring system for an underground firing range in Taiwan. A dispute arose in 1998 and proceedings in Singapore were initially to restrain the Defendant from seeking payment under a performance bond backed by a Singaporean bank. The proceedings subsequently extended to a substantive claim for damages. There was a dispute on jurisdiction but the action proceeded and default judgment was entered in the Claimant's favour. Directions were made for an assessment of damages but the Defendant did not engage and the Singapore Judgment was entered on 10 December 2002 awarding the sum of USD 1,573,510.40 plus SGD 10,693.00 with interest at 6% per annum from 22 July 1998 until payment with costs and disbursements fixed at SGD 7,425.
The Claimant commenced the present proceedings in 2003 and on 16 December 2004 Master Leslie made an order (i.e. the 2004 Judgment) that the Singapore Judgment be registered as a judgment of the Queen's Bench Division under the AJA 1920.
A third party debt order (“TPDO”) in respect of the 2004 Judgment was obtained on an interim basis by the Claimant on 24 October 2005 but the application came to nothing.
On 28 December 2008 the Claimant sought a freezing order in the Cayman Islands over an account held there and then also commenced a common law action on the Singapore Judgment. On 25 June 2009 the Grand Court of Cayman entered a default judgment (i.e. the Cayman Default Judgment) in sums reflecting those ordered by the Singapore Court.
In 2011 the Claimant sought a charging order over funds held in the Cayman Islands and a final charging order was made there on 2 August 2013. The Claimant then obtained a consent order in those proceedings (entered by consent of the Defendant's counsel) dated 16 May 2014 which acknowledged that a total of USD 3,523,198 and SGD 28,240.90 was now due pursuant to the Cayman Default Judgment.
On 11 February 2016 the Claimant applied to the English High Court to register the Cayman Default Judgment pursuant to the AJA 1920.
On 4 April 2016 Master Yoxall made an order (i.e. the 2016 Judgment) registering the Cayman Default judgment. The Defendant disputed service of the 2016 Judgment.
Attempts to enforce the Cayman Default Judgment in Italy and France were unsuccessful.
On 11 January 2019 the Claimant obtained a writ of control for the enforcement of the 2016 Judgment on two Taiwanese banks in London and the Taipei Representative Office (described by the Defendant as the de facto consulate for the ROC) in London.
On 31 January 2019 the Defendant applied to set aside that writ of control and the matter proceeded to a 4 day hearing before Carr J. She gave judgment on 21 February 2020. The matter then went to the Court of Appeal and it gave judgment on 30 November 2020 setting aside the 2016 Judgment and ordering the Claimant to pay the Defendant's costs of the High Court and Court of Appeal proceedings and make an interim payment on account in the sum of £300,000 by 21 December 2020.
On 29 October 2021 the Defendant applied for a detailed assessment of costs.
On 19 November 2021 the Claimant filed points of dispute and on 23 November 2021 the Defendant applied for an order that unless the interim payment on account was paid by 28 February 2022, the Claimant's points of dispute would be struck out.
On 31 January 2022 a hearing took place before Costs Judge Whalan. Both sides were represented by counsel. Judge Whalan made the requested unless order and ordered the Claimant to pay the Defendant's costs of the application summarily assessed at £20,000. Judge Whalan concluded that there were no arguable grounds for the Claimant's submission that there was an equitable set-off between the substantive judgment debt and the Claimant's liability for costs orders. Judge Whalan ruled on 31 January 2022 that the Claimant's participation in the proceedings was “ highly selective” and its failure to pay the sum ordered on account was “determined and deliberate, and constitutes at the very least a breach of the court order, but in practical terms an abuse of the court's process”.
On 17 February 2022 the Defendant made an application to stay the unless order on the basis of set-off.
On 22 February 2022 the Claimant made an unsealed application to enforce the 2004 Judgment and also applied for a TPDO. It withdrew these applications on 3 May 2022 having indicated in a letter to Master Thornett dated 29 March 2022 that the Claimant would withdraw its applications rather than disclose the application for a TPDO.
On 28 March 2022 a hearing took place before Judge Whalan and he refused the Claimant's application for a stay of the unless order and ordered the Claimant to pay the Defendant's costs of the application assessed summarily at £15,000. This was the first hearing where the Claimant was not represented by counsel, and was instead represented by Mr Prentice.
The Claimant applied to appeal the aforesaid order of 28 March 2022 out of time. By order dated 15 June 2022, Pepperall J refused an extension of time (“the Pepperall Order”) and the Claimant subsequently applied on 1 July 2022 to have the Pepperall Order set aside.
On 16 August 2022 the Claimant issued the TPDO Application herein based on the 2004 Judgment and its Permission to Enforce Application, maintaining that the amount now due to it was...
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