Victor Pisante v George Logothetis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henshaw |
| Judgment Date | 04 December 2020 |
| Neutral Citation | [2020] EWHC 3332 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL 2019 000320 |
| Date | 04 December 2020 |
[2020] EWHC 3332 (Comm)
THE HONOURABLE Mr Justice Henshaw
Case No: CL 2019 000320
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building, Fetter Lane,
London, EC4A 1NL
Richard Power (instructed by Debevoise & Plimpton LLP) for the Claimants
David Allen QC and Luke Pearce (instructed by Campbell Johnston Clark Limited) for the Defendants
Hearing date: 13 November 2020
Further evidence and written submissions received 14, 20 and 21 November 2020
Approved Judgment
| (A) INTRODUCTION | 2 |
| (B) BACKGROUND TO THE APPLICATION | 3 |
| (C) BASIS OF THE APPLICATION | 5 |
| (D) MR PISANTE'S PLACES OF RESIDENCE | 6 |
| (E) POSITION OF THE SECOND TO FOURTH DEFENDANTS | 10 |
| (1) Residence: the Nasser condition | 11 |
| (2) Residence: application to present case | 14 |
| (a) Real estate in Greece | 15 |
| (b) Yacht | 16 |
| (c) Other assets owned by Mr Pisante | 17 |
| (d) BCA shareholdings in ship-owning companies | 17 |
| (e) Swindon account with Banque Pictet | 17 |
| (3) Inability to pay | 20 |
| (F) DISCRETION | 23 |
| (G) QUANTUM OF SECURITY | 24 |
| (H) FORM OF SECURITY | 28 |
(A) INTRODUCTION
The Defendants apply for security for costs against the Claimants on the grounds that (a) the First Claimant (“ Mr Pisante”) is not resident in England and Wales or another relevant state and (b) the Second to Fourth Claimants are similarly non-resident and, further, are corporate bodies who, there is reason to believe, will be unable to pay the Defendants' costs if ordered to do so.
The Claimants contend that the Defendants' application for security for costs is misconceived, because the Claimants have available to them within Europe many multiples of the amount that would be required to meet any adverse costs order, and there is no reason to believe that the Claimants will be unable to pay the Defendants' costs if ordered to do so. They make the points that Mr Pisante is a wealthy individual with tens of millions of Euros of assets in Europe alone, and that the Second Claimant has more than US$25 million in investments available to it in an account in Switzerland. By contrast, the Defendants estimate that their costs will amount to only £1,305,602.
As set out further below, I have come to the conclusion that the court has jurisdiction to order security for costs vis a vis the Second to Fourth Defendants, and that it is appropriate to make such an order in the sum of £805,000.
(B) BACKGROUND TO THE APPLICATION
The underlying dispute between the parties is somewhat complex, and arises from certain investments they made in the shipping market, which did not perform well. The Claimants allege that they were fraudulently induced to enter into the transactions by the Defendants, and also make a smaller claim relating to an investment in Piraeus Bank. The total amount claimed is in excess of US$14 million. The claims are strongly contested by the Defendants. Neither party invited the court to consider the merits of the claims in the context of the present application. For present purposes, it is sufficient simply to note that the dispute centres on a joint venture through Netley Holdings Limited, a company owned as to 50% by the Third Claimant and 50% by the Third Defendant.
The Defendants first requested security from the Claimants on 3 December 2019, stating among other things that the Second to Fourth Claimants (respectively “ Swindon”, “ BCA” and “ Castor”) were companies incorporated in jurisdictions where there is very little (if any) publicly available information about their assets. The Defendants' letter requested security, alternatively evidence as to the Second to Fourth Defendants' ability to satisfy a costs order, failing which the Defendants would apply for security.
The Claimants' response dated 17 December 2019 did not provide information as to their financial position, but took the position that the parties already had, from their business relationships, a good level of insight into one another's financial situations; and that having allowed the litigation to proceed for seven months the Defendants must be taken to have recognised that there was no real risk of the Claimants being unable to pay any costs ordered against them. The Claimants' response also stated that Mr Pisante was an EU national with assets in Greece who “has held Swiss residency since 2010, and is willing to provide evidence of such”.
However, after further correspondence the Claimants agreed in January 2020 to provide security for costs in the sum of £500,000 (against the Defendants' then estimated costs of about £930,000), without prejudice to the Defendants' right to apply for further security in due course if necessary.
On 3 August 2020, the Defendants wrote to the Claimants to request further security, or satisfactory evidence of the Claimants' ability to satisfy an adverse costs order, indicating that their costs to date were now in excess of £423,000 and their estimated costs in the region of £1,289,000.
The Claimants on 17 August 2019 declined to provide any further security on a voluntary basis, indicating that their position had not changed since their letter of 17 December 2019. The Claimants also took issue with the quantum of the claimed costs. No further information was provided about assets.
The Defendants on 24 August 2020 complained that, despite repeated requests, the Second to Fourth Claimants had not provided any evidence about their financial position. The Claimants responded on 4 September 2020 that they were willing to provide evidence of their ability to pay any adverse costs order, though this would require some time to compile.
On 20 October 2020 the Claimants provided a letter from Swindon's bank, Banque Pictet & Cie SA (“ Banque Pictet”), dated 24 September 2020 declaring that the bank had known Swindon (“ incorporated on 20.05.2005” and “domiciled in the British Virgin Islands”) since 3 September 1990 and that:
“To date, it may be considered as trustworthy in the way of business, as having always fulfilled its commitments towards us and disposing of an amount in excess of GBP 5'000'000.- (five million British pounds), including available liquidities in excess of GBP 1'300'000.- (one million three hundreds British pounds).
Further we confirm that over the last five years, the company had an average balance in excess of GBP 5'000'000.—(five million British pounds).”
The Defendants did not consider that this provided sufficient comfort, and issued the present application. They noted the apparent discrepancy between Swindon's date of incorporation and the length of the banking relationship, and interpreted the letter as indicating that Pictet currently held only £1,300,000 for Swindon. I was told, however, that the latter figure had been named merely on the basis that it reflected the amount of security the Defendants were seeking.
On 29 October 2020, in response to the application, the Claimants made an open offer to provide security for costs in the increased amount of £750,000, without prejudice to their position that the application for security should be dismissed. The following day (30 October 2020), the Claimants served their evidence in response. This included among other exhibits:
i) a redacted copy of an Investment Management Report from Banque Pictet as at 22 October 2020 indicating an asset valuation of US$ 25,223,037 as at that date. All the details of the report (including the nature of the investments) were redacted, but Mr Pisante indicated in his witness statement that he was content for the court to be provided with an unredacted version if it wished to see one; and
ii) a draft market value appraisal dated 26 April 2011 obtained by Mr Pisante in relation to a substantial house in Athens, said by Mr Pisante to be his main residence.
On 5 November 2020, the Defendants wrote to the Claimants rejecting the offer of £750,000, but offering to accept £900,000. In that letter, the Defendants set out a number of concerns and queries about the Claimants' evidence. The following day (6 November 2020), the Defendants served their evidence in reply.
On 10 November 2020, with the hearing three days away, the Claimants wrote to the Defendants rejecting the counter-offer, and serving further evidence (without the permission of the Defendants or the court). That evidence sought to address the concerns and queries the Defendants had set out.
In the light of the Claimants' further evidence, the Defendants on 11 November 2020 indicated to the Claimants that they were willing to accept the Claimants' offer of security in the sum of £750,000, on the basis that the costs of the application would be in the case, and subject to provision of a form of guarantee and security that was suitable and acceptable to the Defendants.
However, on 12 November 2020, the Claimants replied indicating that they were no longer willing to provide security of £750,000, and would be contesting the Defendants' application in full.
(C) BASIS OF THE APPLICATION
CPR 25.13(1) provides that:
“(1) The court may make an order for security for costs under rule 25.12 if (a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and (b) (i) one or more of the conditions in paragraph (2) applies…”
The conditions set out in CPR 25.13(2) include:
“(a) the claimant is
(i) resident out of the jurisdiction; but
(ii) not resident in a Brussels...
To continue reading
Request your trial
-
Dmitry Lazarichev v Tsimafei Lyndou
...The only judicial dictum on the point to which either the Master or I was referred was that of Henshaw J in Pisante v Logothetis [2020] EWHC 3332 (Comm), [2020] Costs LR 1815, at [22]: “The question of a person's residence for the purposes of CPR 25.13(2)(a) is one of fact and degree. A pe......
-
Between: (1) Kuwait Ports Authority (2) The Public Institution for Social Security (3) The Port Fund L.P. Plaintiffs/Respondents v (1) Port Link GP Ltd (2) Mark Eric Williams (3) Wellspring Capital Group, Inc. (4) KGL Investment Company Asia Defendants/Appellants
...a case of enforcement arises; see Butcher J in PJSC Tatneft v Bogolybov [Costs LR 977 at [49]] and Henshaw J in Pisante v Logothetis [2020] EWHC 3332 (Comm) at [65]–[66]. Discussion and decision 181 We deal first with D1's submission that the judge erred in proceeding on the basis there wa......
-
Keith Nethersole v Airports Authority of Jamaica
...Co. Ltd v Jamaica Public Service Co. Ltd (C.L. 2002/M058). Counsel states that in accordance with the authority of Pisante v Logothetis [2020] EWHC 3332 at paragraph 52, that in assessing the adequacy of a Claimant's assets, it is critical to have regard not only to the assets, but also to ......
-
My Protection Guru Ltd v Lifesearch Partners Ltd
...a matter for the Court: CPR 25.12(3). The relevant principles which inform the Court's approach are set out in Pisante v Logothetis [2020] EWHC 3332 (Comm) (Henshaw J [88]). The question of quantum is a discretionary matter having regard to all the circumstances including: i. whether to ap......