Vitol S.a. v Capri Marine Ltd
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE TOMLINSON,Mr Justice Tomlinson |
| Judgment Date | 29 February 2008 |
| Neutral Citation | [2008] EWHC 378 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2001 Claim No. 39 |
| Date | 29 February 2008 |
[2008] EWHC 378 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Tomlinson
Case No: 2001 Claim No. 39
Luke Parsons QC and Poonam Melwani (instructed by Messrs Stephenson Harwood) for the Claimant
Thomas Macey-Dare (instructed by Messrs Hill Dickinson) for the Defendant
Hearing dates: 18 January 2008
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.
The title of Part 71 of the Civil Procedure Rules is “Orders to Obtain Information from Judgment Debtors”. The question which arises in this case is whether pursuant thereto the court may permit service out of the jurisdiction of an order requiring an officer of a corporate judgment debtor to attend court to provide information about the judgment debtor's assets or any other matter about which information is needed to assist in the enforcement of a judgment.
Capri Marine Limited, the Defendant in this action, is a judgment debtor. Judgment was given on 6 April 2005 in favour of the Claimant Vitol S.A. in the sum of US$6,793,518.28. Of that amount only US$1,000,000 has been recovered. The judgment itself recited that Vitol was to give credit against the judgment sum for the amount of US$500,000 paid to Vitol in February 2001. A further US$500,000 was paid into court in November 200No further sum has been recovered since judgment. Capri is a Maltese company which probably only ever owned one asset, the tanker “Alambra” whose admitted unseaworthiness caused Vitol, who chartered her in 2000 to carry a cargo of petroleum products from Tallinn, Estonia to Singapore, the loss and damage in respect of which this action was brought.
Capri was managed from Greece by Starlady Marine Limited. In May 2001 the “Alambra” was allegedly sold to a Marshall Islands company, Aurora Maritime Inc or Ltd, for US$2,000,000. On the evidence available it seems likely that Aurora is likewise managed from Greece by Starlady. The proceeds of sale were apparently paid to Starlady as Capri's agent. In an effort to find out more about what became of those proceeds and more generally about Capri's assets, Vitol applied for two orders pursuant to CPR 71.2, which provides:
“ Order to attend court
(1) A judgment creditor may apply for an order requiring—
(a) a judgment debtor; or
(b) if a judgment debtor is a company or other corporation, an officer of that body,
to attend court to provide information about—
(i) the judgment debtor's means; or
(ii) any other matter about which information is needed to enforce a judgment or order.
(2) An application under paragraph (1)—
(a) may be made without notice; and
(b) (i) must be issued in the court which made the judgment or order which it is sought to enforce, except that
(ii) if the proceedings have since been transferred to a different court, it must be issued in that court.
(3) The application notice must—
(a) be in the form; and
(b) contain the information
required by the relevant practice direction.
(4) An application under paragraph (1) may be dealt with by a court officer without a hearing.
(5) If the application notice complies with paragraph (3), an order to attend court will be issued in the terms of paragraph (6).
(6) A person served with an order issued under this rule must—
(a) attend court at the time and place specified in the order;
(b) when he does so, produce at court documents in his control which are described in the order; and
(c) answer on oath such questions as the court may require.
(7) An order under this rule will contain a notice in the following terms—
'You must obey this order. If you do not, you may be sent to prison for contempt of court.'”
The application was for orders directed to Mr Gerassimos Kalogiratos and Mr Ioannis Kalogiratos, father and son, both of whom were until shortly before judgment was given in April 2005 directors of Capri. Gerassimos Kalogiratos remains a director of Capri. The Maltese Register of Companies recorded the resignation of Ioannis Kalogiratos as a director of Capri on 4 April 2005. The circumstances in which Ioannis Kalogiratos came to resign as a director of Capri are, at any rate as is so far explained, puzzling. However the questions raised by that exercise are irrelevant to anything which I have to decide. Both Gerassimos and Ioannis Kalogiratos have at all material times been and remain directors of Starlady, although that too is irrelevant to anything which I have to decide.
Orders under CPR 71.2 in standard form were made by Andrew Smith J on 30 August 2005 on the ex parte application. They are in identical form. That addressed to Ioannis Kalogiratos provides, so far as material:
“ Order to attend court for questioning [there then appears the action title]
On 30 th August 2005 Mr Justice Andrew Smith sitting at the High Court of Justice, Commercial Court
considered the application of the Claimant ('the judgment creditor'), which shows that:
a judgment or order given on 6 th April 2005 by Cresswell J
in claim 2001 Claim No. 39 ordered the defendant ('the judgment debtor') to pay money to the judgment creditor, and that the amount now owing under the judgment order is US$5,793,518.28 plus costs plus further interest on the principal sum since 6 th April 2005 accruing daily in the amount of US$…
and the court orders that
1. IOANNIS JOHN KALOGIRATOS of 61–65 Filonos Street, Piraeus, Greece who is an officer of the judgment debtor company attend the Commercial Court at the Royal Courts of Justice on the first working day following the expiration of 21 clear days from service of this order upon him before a judge at 10:30 a.m.
to provide information about the judgment debtor's means and any other information needed to enforce the judgment order.
The questioning will take place before a judge.
2. The officer at that time and place produce at court all documents in the judgment debtor's control which relate to the judgment debtor's means of paying the amount due under the judgment or order and which relate to those matters mentioned in paragraph 1. The documents produced must include those shown in the attached list.
3. The officer at that time and place answer on oath, all the questions which the court asks and which the court allows the judgment creditor to ask.
4. The court where the questioning is to take place may make an order for the payment of the costs of the application and of the hearing.
To IOANNIS JOHN KALOGIRATOS of 61–65 Filonos Street, Piraeus, Greece
You must obey this order. If you do not, you may be sent to prison for contempt of court
Amount owing
The application shows that the amount owing under the judgment or order
(including any costs and interest) is £5,793,518.28
The judgment creditor has paid a court fee of £50.00
Total £5,793,568.28
…
The information required
You will be required to disclose full details of your income and outgoings and your assets (what you own) and liabilities (what you owe) and the matters referred to in paragraph 1 of the order.
(If you have been ordered to attend as an officer of a company or corporation, you will be required to disclose the same details about the company or corporation).
Documents in your control
You must produce all documents which confirm the information required. If you do not have them in your possession, you must get them if you can.
These will include:
• pay slips
• bank statements
• building society books
• share certificates
• rent book
• mortgage statement
• hire-purchase and similar agreements
• court orders on which you still owe money
• other outstanding bills
• electricity, gas, water and council tax bills for the last year.
If you have a business or you are a partner in a business, or the judgement debtor is a company or corporation, they will include the above documents so far as they relate to the business and
• bills or invoices owed to the judgment debtor
• two years' balance sheets and profit and loss accounts
• current management accounts.
If a list of additional documents is attached to this order, these too must be produced.”
A list of additional documents was indeed attached. It was headed:
“Documents which the officer is required to produce in additional to those set out in the note on page 1.”
That list called for the production of copious documentation concerning the conduct of Capri's business including in particular the sale of the vessel in May 2001.
On the same application Andrew Smith J gave permission for service out of the jurisdiction of these orders on Gerassimos and Ioannis Kalogiratos at the address of Starlady in Piraeus. Both Gerassimos and Ioannis Kalogiratos are resident in Greece.
Gerassimos and Ioannis Kalogiratos seek to set aside both the orders made against them and the orders permitting service of the same upon them out of the jurisdiction in Greece. They say that the court lacked jurisdiction either to make the orders or to permit service thereof out of the jurisdiction. Ioannis Kalogiratos additionally says that the court lacked jurisdiction to make the order against him because he was not when it was made a Director of Capri. As I have already set out the order recites that “Ioannis [John] Kalogiratos of 61–65 Filonos Street, Piraeus, Greece [who] is an officer of the judgment debtor company” whereas when the order was made he was not.
An order made under CPR 71.2 against an officer of a corporate judgment debtor is not an order made against the judgment debtor itself. It is not therefore an order made against the existing Defendant company which is amenable to the jurisdiction. This is...
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