Tenke Fungurume Mining S.A. v Katanga Contracting Services S.A.S.
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Moulder,Mrs Justice Moulder DBE |
| Judgment Date | 07 December 2021 |
| Neutral Citation | [2021] EWHC 3301 (Comm) |
| Docket Number | Claim No: CL-2021-000554 |
| Court | Queen's Bench Division (Commercial Court) |
[2021] EWHC 3301 (Comm)
Mrs Justice Moulder DBE
Claim No: CL-2021-000554
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
The Rolls Building
7 Rolls Buildings, Fetter Lane
London, EC4A 1NL
James Leabeater QC (instructed by Armstrong Teasdale Limited) for the Claimant
Charles Kimmins QC and Mark Tushingham (instructed by Charles Fussell & Co LLP) for the Defendant
Hearing dates: 5 and 8 November 2021
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.
Introduction
The Claimant (“TFM”) brings a challenge under section 68 of the Arbitration Act 1996 (the “Act”) to an award dated 26 August 2021 issued by an ICC Tribunal comprising Mr Charles Kaplan, Mr Jeffrey Gruder QC and Dr Achille Ngwanza (the “Final Award”). By the Final Award, TFM was ordered to pay all sums claimed to the Defendant (“KCS”) and TFM's counterclaims were dismissed.
Anonymity and publication of the judgment
I understood it not to be contested by TFM that this judgment pertaining to a section 68 application should be published. KCS referred the court to the decision of the Court of Appeal in Manchester City Football Club Limited v The Football Association Premier League Limited [2021] EWCA Civ 1110 and the observations of Males LJ at [65] that:
“public scrutiny of the way in which the court exercises its jurisdiction to set aside or remit awards for substantial irregularity under section 68 of the 1996 Act is itself in the public interest”.
TFM originally sought to have its identity withheld in this judgment as well as “ any pricing information concerning the agreements at issue”. At the hearing KCS submitted that no such anonymity order should be made on the basis that TFM has made an application in the Democratic Republic of the Congo (“DRC”) linked to the enforcement of the Award where it has referred publicly to the names of the parties and the underlying dispute. In response to an invitation from the court to make written submissions in response to that evidence, TFM has now accepted in light of the fact that the summons in the DRC is a public record, that it would not be appropriate to seek anonymisation of the parties in this judgment but it maintains its submission that “ commercially important or sensitive information” should be redacted. In my view this judgment does not contain commercially sensitive information and the issue does not arise. I am not persuaded that the subject matter of the contracts in issue or the amounts awarded in the arbitration are sufficiently commercially sensitive to outweigh the public interest in understanding the judgment in context. Further to the extent that the proposed anonymity which is sought applies not to the identity of TFM but to details concerning its business and the arbitration such that the test in CPR 39.2(4) is engaged as discussed below, in my view the test of necessity with regard to the redactions is not satisfied. Accordingly I refuse to make any redactions as sought by the Claimant.
However one of the grounds of the appeal relates to the unavailability of leading counsel who became ill in the course of the arbitration and was unable to participate in the merits hearing. Counsel on both sides have proposed that the identity of that counsel should not be disclosed.
CPR 39.2 provides:
“(4) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.”
CPR 39.2(4) does not extend to the identity of the particular counsel who is neither a party or a witness. However the anonymisation of this individual potentially engages the principle of open justice and as such the court has a general discretion to withhold the identity of another person only if satisfied that the test of necessity is met ( Brearley v Higgins & Sons (A Firm) [2021] EWHC 1342 (Ch) at [13]–[14]). The counsel concerned is not involved in the application before this court as a party or a witness and I do not see that it is necessary in order to satisfy the principle of open justice in the circumstances of this case that his health should be placed in the public domain: his state of heath is a personal matter which he is entitled to regard as confidential and although I have no evidence on the point, it seems to be self-evident that knowledge of any health difficulties suffered could impact on his professional life. Accordingly, assuming the test is one of “necessity”, I find that the test of necessity is met in order to protect his interests and I propose not to identify the counsel concerned.
Evidence
In opposition to the claim now brought by TFM the court has a witness statement of Mr Charles Fussell of the firm Charles Fussell & Co LLP, which represents KCS in these proceedings dated 8 October 2021.
In response the court has a witness statement dated 25 October 2021 of Mr Peter Mantas of Fasken Martineau DuMoulin LLP, the Ontario incorporated branch of the international law firm operating under the global name “Fasken”, which represented TFM in the arbitration.
Hearing
In accordance with the current practice of the Commercial Court, the hearing was held remotely. Both parties were represented at the hearing by leading counsel and filed skeleton arguments in advance of the hearing. As the appeal related to an arbitration and issues of confidentiality were raised, the court agreed to hold the hearing in private but without deciding the issue of publication of the judgment which it has now decided should be published as referred to above.
Background and key chronology
The dispute relates to a mine in the DRC operated by TFM. TFM agreed various contracts with KCS, including contracts for the construction of tailing storage facilities (“Tailing Services Agreement”) dated 1 March 2018 and removal of scats (“Scats Agreement”) dated 18 April 2018.
Both the Tailing Services Agreement and the Scats Agreement contained an arbitration clause in similar form. The contracts and the arbitration clauses were subject to English law and the arbitration was to be governed by ICC Rules with its seat in London.
On 13 January 2020 KCS commenced two arbitrations, later consolidated, for US$13.666m.
On 11 January 2021 TFM asked for a pre-hearing conference to apply for an adjournment of the hearing, on the basis that COVID-19 restrictions had prevented the parties' mining experts from visiting the site.
A telephone conference took place on 25 January 2021. The Tribunal issued Procedural Order No. 3 the next day. The Tribunal refused to adjourn the hearing, and declined to rule on whether there should be a site visit prior to consideration of the counterclaims.
On 4 February 2021 TFM wrote to the Tribunal notifying it of the illness of its leading counsel (COVID-19) and asking for an adjournment of two months until May 2021. On 9 February 2021, the Tribunal issued Procedural Order No. 4, ruling that the hearing should go ahead.
On 28 February 2021, the day before the hearing started, Fasken advised the Tribunal and KCS that following its review of the evidence it had been decided that the allegations of bribery and corruption against KCS should be withdrawn.
The merits hearing then took place from 1 March to 8 March 2021.
On the final day of the hearing, the Tribunal asked for submissions on costs and interest prior to the issue of an award on the merits. The parties exchanged submissions on 26 March 2021. KCS submitted two witness statements from Mr Fussell and Mr Fourie.
TFM asked the Tribunal for permission to cross examine the witnesses on the new statements produced by KCS and on 8 April 2021 the Tribunal issued Procedural Order No. 5 refusing any cross examination but ordering disclosure of certain documents.
On 26 August 2021 the Tribunal issued the Final Award. KCS was awarded all sums claimed; the counterclaims were all dismissed; TFM was obliged to pay KCS's legal and expert costs of just under US$1.4m, plus US$1.7m for the litigation funding advanced by way of a shareholder loan; plus compound interest at 9% already accrued to about US$2m and continuing until payment.
On 23 September 2021 TFM made this application by way of Arbitration Claim Form.
Grounds of challenge
TFM challenges the Final Award under Section 68 of the Act on the grounds of serious irregularity affecting the Tribunal, the proceedings or the award, that has caused or will cause substantial injustice to TFM.
TFM advances four grounds:
i) Ground 1: Failure to adjourn the arbitration to allow a visit to the construction site;
ii) Ground 2: Failure to adjourn the arbitration notwithstanding the illness of TFM's leading counsel;
iii) Ground 3: Costs award;
iv) Ground 4: Compound interest.
TFM also seek to raise a further challenge to the uplift to the costs award (the “success fee”). This was not made in the Arbitration Claim Form and no formal application has been made to advance this challenge. It is opposed by KCS as out of time and on the basis that no explanation has been provided for the late challenge. This is dealt with below.
Ground 1: Failure to adjourn the arbitration to allow a visit to the...
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