BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Commercial Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> BB Energy (Gulf) DMCC v Al Amoudi & Ors [2018] EWHC 2595 (Comm) (04 October 2018)
Cite as: [2018] EWHC 2595 (Comm)

[New search] [Printable RTF version] [Help]

Neutral Citation Number: [2018] EWHC 2595 (Comm)
Neutral Citation Number: [2018] EWHC 2595 (Comm)


Court No 25
The Rolls Building
London EC4A 1NL
Thursday, 4 October 2018

B e f o r e :






LUKE PARSONS QC and ANDREW CARRUTH (instructed by Osborne Clarke) appeared on behalf of the Claimant.
LORD FALCONER OF THOROTON and ANDREW SCOTT (instructed by Gibson Dunn) appeared on behalf of the Defendants.

Thursday, 4 October 2018



Crown Copyright ©


  1. The defendants apply for a stay of these proceedings by application notice dated 21 February 2018.
  2. The claimant has sued each of the four defendants here as of right by, in each case, serving the proceedings at an address for service within this jurisdiction maintained by the defendant in question as a result of his directorship of one or more English companies. It is accepted that that amounted to valid service, irrespective of whether the subject matter of the claims is connected to the companies the directorship of which generated the need to maintain that address for service.
  3. The defendants were directors of Société Anonyme, Marocaine de l'Industrie de Raffinage ('SAMIR'). As its name suggests, SAMIR is a Moroccan oil-refining company. It was placed into judicial liquidation by the Commercial Court of Casablanca by order dated 21 March 2016.
  4. The claimant is a company incorporated in Dubai. It carries on business in the trading of crude oil, refined oil products and natural gas. The claimant has been admitted in the liquidation of SAMIR as a creditor, owed c.US$126m, and it has obtained a default judgment against SAMIR in this court for c.£88m by reference, as I understand it, to that debt. The claimant claims in these proceedings that the defendants are liable to it in damages in respect of loss occasioned to it through entering into the contract with SAMIR under which SAMIR defaulted.
  5. Three causes of action or groups of cause of action are pleaded:
  6. a. Firstly, the claimant makes a claim for losses it says were caused to it by the wrongful conduct or mismanagement of the defendants in the course of conducting the business of SAMIR as directors. That has been referred to as the 'mismanagement claim'.
    b. Secondly, the claimant asserts claims in deceit, alleging that it was induced by false representations by the defendants, as to which the defendants knew of the falsity or were reckless as to the falsity of the representations, to enter into the defaulted contracts.
    c. Thirdly, the claimant puts forward a claim or claims for damages for what it says was an unlawful means conspiracy.
  7. All three causes of action or groups of cause of action as pleaded depend critically upon allegations of fact particularised in some detail under paragraph 60 of the particulars of claim, but claiming essentially that the defendants caused SAMIR to continue to trade with the claimant in and after Q4 2014, well knowing that SAMIR would be unable to meet its resultant financial obligations or reckless in that regard. Contrary to the defendants' submissions or contrary at least to a certain emphasis in their submissions, those critical factual allegations are not peculiar to or creatures of Moroccan law, nor do they have an exclusively or predominantly Moroccan centre of gravity as matters of fact, although of course the connection to Morocco is not insignificant since the allegations relate to SAMIR.
  8. In the mismanagement claim, those critical allegations of fact are said to give rise to liability under Moroccan law, specifically under Article 352 of Moroccan law 17-95, relating to public limited companies, and/or Article 77 or Article 78 of the Moroccan 'code des obligations et des contrats' ('the obligations code'). The claimant also pleads reference to Article 903 of the obligations code, concerning the duties of agents towards their principals, but it is agreed that would at most inform the content of the defendants' duties as directors as may be relevant to the bases of liability asserted, as opposed to giving the claimant a separate or additional cause of action. Acting contrary to the defendants' duties under Article 352 of law 17-95 and/or Article 77 or 78 of the obligations code is then said to be one of the unlawful means deployed in the alleged conspiracy.
  9. The deceit claim is founded upon alleged implied representations said to have been made by the defendants personally to the claimant as to SAMIR's ability to perform its contractual commitments and/or as to whether they would in fact be fulfilled. Those alleged representations are said to have been deceitful because of the critical factual allegations. The use of deceit in continuing to trade with the claimant is then said to be the other unlawful means deployed in the alleged conspiracy.
  10. A focus on the nature and detail of the claims that has been generated by this application has revealed, it seems to me, three difficulties or infelicities in the way they have been pleaded.
  11. Firstly, as part of the pleading of the mismanagement claim, at paragraph 61 of the particulars of claim the claimant has pleaded that, pursuant to Moroccan law, it "as a creditor of SAMIR" can claim against the defendants for loss resulting from the breaches of duties the claimant alleges. It is, however, plain on the evidence that has been generated as to Moroccan law for the purposes of this application -- and that is on both sides of the fence -- that the claimant's status as a creditor of SAMIR is not in fact necessary to or indeed of any direct relevance to whether it does or does not have the tortious causes of action under Moroccan law which it alleges.
  12. Secondly, there is at least a question as to whether a 'personal and distinct loss', differentiating a claimant in some way from a body of creditors of a company which has become insolvent, is required before the claimant in question has a valid claim for compensation under Article 352 as a matter of Moroccan law. I articulate that carefully because, as throughout, I wish to be clear that at this stage and in this judgment I am not in a position to and do not purport to reach determinations on any of the issues that will or may ultimately go to the merits of the claimant's claim. It is thus not entirely clear to me at this stage whether the claimant for its part does accept the need for this personal and distinct loss, but on any view it is apparent, although only perhaps from a solicitor's letter relatively recently sent, intended to stand as further particulars, that if there is such a requirement, the claimant will say that it can satisfy it.
  13. Thirdly, the way in which the claimant has articulated its plea as to its loss and damage is at all events capable of creating, as it seems to me, some confusion as to the way in which it seeks to measure its damages. It was apparent from discussion of that aspect of the pleading during argument that it is well recognised on the claimant's side that all the claims made are claims in tort and that, on reflection, it may not be as clear as it ought to be on the pleading that the contract prices not paid by SAMIR are, if they be relevant at all, relevant to the measuring of any damages claimed only as (it may be) evidence of the value of cargoes the claimant will say it was wrongfully induced or caused to supply to SAMIR.
  14. Those concerns about the pleading do not, however, have any material bearing on the present application. How the claimant will put its claims is in my view clear enough for the purposes of considering the exercise of any discretion to stay that may be available to the court. That said, if these proceedings are not to be stayed, in my judgment those concerns about the pleading ought to be resolved, which I apprehend may mean striking through the erroneous or unnecessary words in paragraph 61, requiring a proper pleading as to personal and distinct loss for the Article 352 claim, and requiring the loss and damage plea to be corrected or clarified.
  15. Turning then to this application, the defendants' application notice sought a stay on four bases:
  16. a. on the basis that this court is not an appropriate forum for the resolution of the claimant's claims (forum non conveniens);
    b. on the basis that the claimant's claim should be stayed in favour of the Moroccan liquidation proceedings as a lis alibi pendens;
    c. under Article 34 of the Brussels Regulation recast, on the basis that the Moroccan liquidation proceedings are related proceedings; or
    d. as a temporary case management measure pending a decision in the Moroccan proceedings as to whether the liquidation of SAMIR is to be extended to the defendants under Article 706 of the Moroccan Commercial Code, something that has been recommended but not yet determined in the Moroccan liquidation proceedings, as I shall explain.
  17. It is, however, common ground that Article 34 of the Brussels Regulation (recast) does not apply because the Moroccan proceedings are in the nature of insolvency proceedings excluded from the scope of the regulation. Furthermore, it was authoritatively established by Owusu v Jackson (Case C-281/02) [2005] QB 801 that proceedings within the scope of the Brussels Regulation brought here against a defendant domiciled here cannot be stayed on the basis that England is a forum non conveniens. Owusu v Jackson was decided under the Brussels Convention, but subject always to the debate that continues as to the precise extent of the decision, it remains good law for the Brussels Regulation (recast).
  18. It is common ground that the fourth defendant is domiciled within the jurisdiction. On the evidence before me for the application I am satisfied that the third defendant is also domiciled here, as the claimant has argued. So there can be no question of staying these proceedings against either the third or the fourth defendant on the basis that England is a forum non conveniens. In those circumstances I do not find very compelling the suggestion that the proceedings should nonetheless be stayed against the first and second defendants. A particular submission in that regard was that the only real target of the claimant's claim is the first defendant, he being, the defendants say, the only defendant with the means to discharge a liability of the order of magnitude asserted. To my mind, though, there is no basis on the evidence presently before the court for a conclusion that the claims against the second, third and fourth defendants individually are other than serious claims properly brought (if the claims have properly arguable factual and legal merit at all, which is not something that arises at this stage).
  19. I do not need to take that aspect any further, however, or conduct any balancing exercise between the undesirability of the claim proceeding against some but not all of the defendants and the factors said by the defendants to make England an unsuitable forum. There is no forum non conveniens discretion to exercise, quite apart from the impact of the recast Regulation, unless the defendants demonstrate that Morocco is a forum conveniens. That requires, in the first place, proof that Morocco is an available forum in which the claimant could bring against the defendants the claims it is making here. The defendants have made no attempts to prove that.
  20. The defendants' submissions at times obscured that reality by failing to keep in mind that the claims made here, that the defendants ask me to stay, are claims by the claimant asserting personal damages liabilities owed to it by the defendants. They are analytically and legally quite distinct from SAMIR's liability to the claimant, admitted in the Moroccan liquidation and the subject of the default judgment here, albeit, of course, any actual recovery by the claimant in respect of that liability will go to reduce its recoverable loss in its claims against the defendants.
  21. So what is left of the defendants' application is lis alibi pendens and case management.
  22. In Owusu v Jackson, one question referred to the CJEU was whether a discretion available under national law could be exercised, to stay proceedings because of a lis alibi pendens, where jurisdiction had been founded under what is now Article 4 of the Brussels Regulation (recast) and the proceedings in favour of which a stay was sought were in the courts of a state not privy to the Brussels-Lugano regime. The CJEU declined to answer that question as it did not arise on the facts of the case -- there were no proceedings on foot in Jamaica. There has been debate since as to how that question is to be answered. At the risk of oversimplification, the debate has boiled down to this: on the one hand, the seemingly unqualified terms in which the CJEU articulated the principle by which it decided the forum non conveniens question in Owusu v Jackson may appear to dictate a negative answer to the lis alibi pendens question (and, after all, there is in truth no separate doctrine of lis alibi pendens in English law, rather, the existence of foreign proceedings connected in some way to the proceedings here sought to be stayed is ultimately just one factor -- it may be an important factor in any given case -- but just one factor in considering whether England is a forum non conveniens); on the other hand, it seems surprising and unwarranted for an English court to be unable, because of the Brussels-Lugano regime, to stay proceedings in favour of, say, proceedings in Jamaica if, on otherwise identical facts, it would have been entitled or maybe even obliged to stay had the other proceedings been in, say, France or Switzerland.
  23. In Ferrexpo AG v Gilson Investments Limited & Others [2012] EWHC 721 (Comm), [2012] 1 Lloyd's Rep 588, Andrew Smith J held that the Brussels-Lugano regime allowed the English court to stay on lis alibi pendens grounds (if that were otherwise appropriate, applying national law) where a stay would have been permitted by what is now Article 30 of the Brussels Regulation (recast) had the other proceedings been in a Brussels-Lugano state. In Plaza BV v The Law Debenture Trust Corporation plc [2015] EWHC 43 (Ch), Proudman J held that the Brussels-Lugano regime allowed the English court to stay proceedings brought in breach of a contract obliging the claimant to bring its claim in the courts of Western Australia on the basis that such a stay was consistent with the Brussels Lugano regime given what was then Article 23(1) of the Brussels Regulation (now, with modified wording, Article 25(1) of the recast Regulation). In doing so, Proudman J followed a decision of Norris J in Winnetka Trading Corp v Julius Baer International Ltd [2008] EWHC 3146 (Ch) and the obiter view of Colman J in Konkola Copper Mines plc v Coramin Ltd [2005] EWHC 898 (Comm) and referred to the analysis of Andrew Smith J in Ferrexpo.
  24. By contrast, in Catalyst Investment Group Ltd v Lewinsohn [2009] EWHC 1964 (Ch), Barling J concluded that Owusu v Jackson meant what it seemed to say and ruled out even a 'reflexive' application of what is now Article 29 of the Brussels Regulation (recast) in respect of proceedings in Utah between the same parties and involving the same cause of action.
  25. The staying of proceedings within the scope of the Brussels Regulation recast on lis alibi pendens grounds where the other proceedings are in a non-Brussels-Lugano state is now dealt with by Articles 33 and 34. That must mean, I think, that the actual decision in Ferrexpo, namely that a stay can be granted under national law treating Article 30 as having a 'reflexive' effect, is not good law for the recast Regulation, whether or not it would have found favour with the CJEU for the original Regulation. The question now is not whether Article 30 would have applied had the other proceedings been in a Brussels-Lugano state but whether Article 34 applies. In any given case, that could cut either way -- Articles 33 and 34 appear to include requirements not found in Articles 29 and 30, but on the other hand they do not seem to replicate the primacy of first seisin built into Articles 29 and 30.
  26. The claimant submits as regards the third and fourth defendants that, since there is no provision in the recast Regulation entitling the court to stay these proceedings, because, as is common ground, Article 34 does not apply, therefore there can be no stay as against those defendants. The defendants submit, however, that because the reason Article 34 does not apply is that the Moroccan proceedings are insolvency proceedings falling outside the scope of the recast regulation, it is open to the court to stay, even as against the third and fourth defendants, if it would be doing so by reference to a doctrine of national law specific to that kind of proceedings. In that regard, they invoked what has been described as a principle of 'modified universalism' in the context of cross-border insolvencies (see In re HIH Casualty v General Insurance Ltd [2008] 1 WLR 852, per Lord Hoffmann at [6]-[7] and [30]; and see also Rubin v Eurofinance [2013] 1 AC 236 and Stichting Shell Pensioenfonds v Krys & Another [2015] AC 616).
  27. Claims against the directors or former directors of a company by claimants who say those directors or former directors incurred personal liability to them through wrongdoing in the course or purportedly in the course of running the company are not uncommon. There may be any number of difficulties in the way of such a claim in any given case, but that will be a matter for the merits. The pursuit of such claims is not apt inherently to interfere with or undermine an orderly liquidation of the company, wherever it is incorporated, if it is insolvent. The defendants say that this case is, however, different because of a particular, possibly unusual, feature of the Moroccan insolvency law and practice applicable to the liquidation of SAMIR.
  28. Pursuant to Article 706 of the Moroccan Commercial Code, to which I have already made reference in passing, corporate insolvency proceedings in Morocco can be extended to the directors or former directors of the insolvent company in certain cases of mismanagement. As the defendants submitted and was clear on the evidence as to Moroccan law adduced on both sides, Article 706 and the procedure associated with it provides a mechanism through which, in cases of serious misconduct on the part of the insolvent company's directors or former directors, those directors' own assets may be made available for the benefit of the insolvent company's creditors for the purposes of seeking to discharge directly the company's debts. In other words, it provides a mechanism by which, in the eyes of Moroccan law -- that is to say Moroccan insolvency law -- the insolvent estate of the company available for the satisfaction or partial satisfaction of its creditors is effectively extended into some or all of the assets of its misfeasant directors.
  29. A further provision of slightly more limited impact, but nonetheless also of potentially significant impact in any given case, is Article 704 of the Moroccan Commercial Code, under which, in circumstances as specified in that article, directors or former directors of an insolvent company can be rendered personally liable to make good some particular shortfall between the assets of the company in liquidation and its liabilities to its creditors.
  30. In the present case, after an investigation within the course of the Moroccan insolvency proceedings relating to SAMIR, a request under the Article 706 procedure was filed by the liquidator of SAMIR with the appointed judge supervising the liquidation process, for the liquidation of SAMIR to be extended to, amongst others, the four defendants before this court. Again pursuant to the relevant Moroccan procedure, the appointed judge in due course concluded that the request appeared to be well founded and made a recommendation that the liquidation be so extended. The appointed judge's recommendation was made to the three-person court which ultimately has the judicial function to determine the Article 706 request, of which he, the appointed judge, is himself a member.
  31. That recommendation by the appointed judge came as long ago now as December 2017. A decision on the recommendation is awaited. Indeed, on the evidence before me, the next stage in the process, namely the formal service of relevant documentation has not yet been completed, at any rate as regards the defendants before me.
  32. In some of their submissions the defendants emphasised that if indeed the liquidation of SAMIR is extended to them, that will mean they are themselves subject to a species of bankruptcy proceedings. However, there is no suggestion that Morocco is the (or a) domicile of any of the defendants; and in my judgment it is plain on the evidence before the court that they have not submitted and have no intention of submitting to the Moroccan jurisdiction. Indeed, the defendants' case is that, in the context of the liquidation of SAMIR, the Moroccan courts are biased and not somewhere they, the defendants, are or will be able to obtain justice. So, as it seems to me, there can be no question of a stay at the defendants' instance in support, as such, of the prospective quasi-bankruptcy proceedings against them under Article 706.
  33. The defendants' contention, however, was that because, thanks to Article 706, the Moroccan court may conclude that their assets are to be made available as, in effect, an extension of SAMIR's insolvent estate, and because of the overlap between the allegations against the defendants the Moroccan court has to consider in relation to the Article 706 issue and the issues raised by the claimant's claims here, it undermines SAMIR's orderly liquidation in Morocco to allow the claimant's claims here to proceed. Indeed the defendants submitted that those claims should be seen as a vexatious attempt to circumvent the due and proper, Moroccan process of liquidating SAMIR.
  34. That is not an attractive submission coming from defendants whose case is that the liquidation of SAMIR in Morocco is not at all due and proper; who say, rather, that it is a politically driven stitch-up. But even if that contradiction in the defendants' position is left to the side, in my judgment there is no substance to their complaint about the proceedings here. It is not necessary, therefore, to determine whether the discretion they ask the court to exercise is available to the third and fourth defendants or whether, if not, that would tip any balance otherwise favouring a stay of the proceedings against the first and second defendants.
  35. The defendants' submissions and evidence of Moroccan law were, to my mind, somewhat bedevilled by failures to distinguish between (1) a question of Moroccan procedural law, namely whether any Article 352 claim brought in Morocco and relating to a Moroccan company in liquidation has to be brought (by whomever) before the court conducting the liquidation of the company; (2) a possible question of title to sue, which is an aspect of the merits, namely whether, when a Moroccan company is in liquidation, only its liquidator is entitled to make or pursue any claim under Article 352 against the company's directors or former directors; (3) another question of merits, namely whether the claimant has an arguable claim to have suffered a personal and distinct loss if that be required for a successful Article 352 claim.
  36. Taking those in that order: on the first question, in my judgment it is tolerably clear, despite a late-served second report from the claimant's Moroccan law expert, that any process seeking to extend the liquidation of SAMIR to the defendants under Article 706 would be a matter for the court conducting that liquidation and that, if the liquidation is so extended, thereafter any Article 352 claim brought in Morocco likewise ought to be brought before that court. But that has nothing to do with the question of whether the claimant's claim here should be stayed.
  37. On the second question, in my judgment it is clear that the claimant's claim under Article 352, if otherwise viable, arose prior to and independently of SAMIR's liquidation; and I do not think there is a serious question that SAMIR's liquidation deprived the claimant of its entitlement to pursue any such claim. In any event, as I said in identifying these questions, that is a matter for the merits in due course.
  38. On the third question, in my judgment it is tolerably clear that a case of deceit involving the wrongful concealment of the financial situation of the company, inducing a counterparty to trade or continue trading with the company, may be capable of generating a personal and distinct loss to the extent that may be required for an Article 352 claim by the counterparty against the wrongdoing directors. The defendants say they will submit that there is no such loss where, as here, the nature of any deceit, if established, is generic by reference to implied reassurances that (the defendants would suggest) will have been given, if given at all, equally to all of SAMIR's suppliers. But all of that, again, is a matter of the merits, not a matter going to the appropriateness in this case of trying those merits here.
  39. In consequence, as regards the second and third questions and as the claimant submitted, were it clear that there was no viable Article 352 claim in this case, the proper course would not be to stay these proceedings, but to strike out that claim and to consider what, if any, impact that had on the pleading of unlawful means for the conspiracy claim; a particular point there being whether the lack of a personal and direct loss if required for an Article 352 claim meant that the breaches of duty involved in the Article 352 claim as alleged could not amount to unlawful means. The furthest the second and third questions could take the defendants in this court, therefore, would be to reduce the claimant to its deceit claim and a conspiracy claim, with possibly modified particulars or narrowed foundations.
  40. The pursuit by the claimant of its claims, whether they include an Article 352 claim or not, in this court, before which it has brought the defendants as of right, neither circumvents nor interferes in any way with the Moroccan liquidation of SAMIR. If in Morocco that liquidation is extended to the defendants under Article 706 and if the claimant's claim here succeeds against any of them, questions might then arise, in the context of the enforcement of the claimant's English judgment, of how, if at all, any account may need to be taken of the Moroccan liquidation thus extended, but that does not call for a stay of these proceedings at any time prior to judgment.
  41. In their alternative submissions, the defendants invited me either (a) to direct an issue within the stay application as to the viability of the claimant's Article 352 claim, or (b) to grant a stay on purely case management grounds pending clarity in Morocco as to whether the liquidation of SAMIR is to be extended to the defendants.
  42. As to the first of those, and as I have already indicated, in my judgment the question of the viability of the claimant's Article 352 claim is a question for the merits. A conclusion that there is no arguable Article 352 claim would not result in a stay, so there is no basis for adjourning this application with a direction for the trial of an issue. Whether an issue or issues concerning Article 352, or for that matter any other issue or issues in the case, should be considered first and separately, i.e. as preliminary issues, is a matter, if pursued by the defendants, to be dealt with under normal case management processes in the case.
  43. The second alternative submission in fact involved two quite different lines of thinking. Firstly, it was said that if the court would be minded to stay proceedings here, were the SAMIR liquidation extended to the defendants, then there should be a stay for now since the extension of the liquidation has not yet been determined in Morocco. I do see the logic of that so far as it goes, however, my conclusion as to it is the same as for the defendants' first alternative submission. The extension of the SAMIR liquidation to the defendants, if it occurs, would not induce the court here to stay these proceedings. Secondly, then, it was said that if the SAMIR liquidation were not extended to the defendants and if that were because a judgment was delivered in Morocco dismissing matters of factual complaint against the defendants that overlapped with the claimant's allegations here, then it would be good case management not to require the proceedings here to have progressed in the meantime, thus allowing the parties, in particular I apprehend it was being said the claimant, to take stock in the light of that hypothetical Moroccan judgment. If there were evidence from which I could conclude that there was a real prospect of such a judgment in Morocco being delivered in relatively short order, I might perhaps have been willing to give that possibility some further consideration. That is not the position, however. Were there to be such a judgment during what will now be the life of these proceedings, and if it called for any modification of or addition to the parties' cases here, I cannot see that that should give rise to any particular difficulty in managing the proceedings or any unfairness to either side. Certainly it does not seem to me that any possible such contingent unfairness will outweigh the definite unfairness of pausing these proceedings for an unknown, indefinite and possibly extended period, with no ability at this stage to judge at all whether any such judgment will be issued and, if it is, whether it will actually have any impact on the issues before this court.
  44. This application to stay these proceedings therefore fails. It does so on grounds that do not in fact depend on the conclusion I reached that the third defendant is domiciled here. For completeness, I should explain briefly why that was my conclusion, in case it matters hereafter.
  45. The question of domicile for the purposes of the recast Regulation is to be determined by national law. That is Article 62. For English law the matter is governed by the Civil Jurisdiction and Judgments Order 2001, specifically paragraph 9 of schedule 1 to that order. The test provided by that paragraph is whether the defendant (a) is resident in the United Kingdom and (b) has a substantial connection to the United Kingdom. Equivalent tests then apply to determine, as is also relevant here, whether a defendant is domiciled in a particular part of the United Kingdom, in this case England and Wales as opposed to Scotland or Northern Ireland.
  46. The court, in relation to the test of residency, will look at the nature of a defendant's relationship and connection with England, a matter of fact and degree. A defendant who has a settled or usual place of abode in this jurisdiction will be resident here even if he or she also has one or more settled or usual places of abode elsewhere. A person can be resident in multiple jurisdictions at any given time. See as to all of that Bestolov v Povarenkin [2017] EWHC 1968 (Comm); and consistent with all of that, as long ago as 1928 the House of Lords concluded in IRC v Lysaght [1928] AC 234 that a person living generally in Ireland and who came to England but for a total of less than three months a year had a residence in England.
  47. On the evidence before the court -- which is notable amongst others for the fact that all of the detailed factual evidence as to the third defendant's position has been provided to the court by the claimant and not by the third defendant himself -- on that detailed evidence, the third defendant is a British citizen, although also a citizen of other nations, who spends in the region of three months in this country every year. It may be, as is asserted on his behalf, although there is also some evidence to doubt this, that he seeks to achieve less than 90 full days of residence in this jurisdiction each year as that may have a particular impact on his treatment by HMRC for tax purposes. That, however, seems to me to have almost nothing to do with the question of whether he nonetheless spends enough time here, with enough of a connection here, as to generate a residency here. The third defendant has a residential property in West London where he is known to the porter and which has every appearance of being his main or a main family home. He and his wife are jointly registered as the proprietors of that leasehold. That is also the address for service in the case of the third defendant registered with Companies House. He works as a partner or owner of Capital Trust Limited, an English registered company with its registered office in London. His wife and three adult children all appear to live in London. There is a body of evidence available on public sources online indicating strongly that the third defendant is, it may be amongst others, ordinarily resident in London, and that he ordinarily conducts his business affairs from London.
  48. In those circumstances, in my judgment the question of whether the third defendant on the evidence is resident within the jurisdiction, in fact more specifically in London, and has a substantial connection to this jurisdiction, really admits of only one answer.
  49. For completeness as to that, I should say that the claimant, if it needed to, invoked paragraph 9(6) of schedule 1 to the 2001 order, providing that where a person has been resident here for the preceding three months or more, it is to be presumed that he has a substantial connection (for the second part of the test of domicile) in the absence of contrary proof; the claimant submitting that no such proof has been forthcoming. For the reasons I have indicated, the claimant did not need to rely on any such presumption. The position is clear.
  50. Finally, I wish to say something about expert evidence. I mentioned at the outset that the application notice is dated 21 February 2018, some seven and a half months ago. When issued, it stated a time estimate for the hearing of four hours, acknowledging that that was not agreed with the claimant. I do not know and have no complaint as to the process by which in due course this hearing came to be fixed for as long as two full days, including half a day pre-reading. Even on the defendants' initial estimate, on any view on what must have been an agreed final estimate, this was a substantial application with a long lead time in which, from the outset, it will have been clear that each party would wish to rely upon expert evidence of foreign law. When issuing the application with evidence in support, the defendants provided an initial opinion from a Moroccan lawyer in fact engaged defending SAMIR's interests and at least indirectly the defendants' own interests in the Moroccan liquidation. It was acknowledged, in my judgment quite properly, by the defendants' solicitor's witness statement in support of the application that expert opinion evidence from such a lawyer was far from ideal, but it was indicated that, given the applicable tight deadline for issuing any application under Part 11 for a stay on the sorts of grounds asserted -- and I paraphrase -- the evidence in question was the best the defendants could do at that stage.
  51. In those circumstances and in any event, in my judgment it is a matter of significant regret that neither side identified, as undoubtedly they ought to have, that this was a heavy application that needed case management, not least because neither side had permission for reliance upon any expert evidence, permission being required for interlocutory hearings as much as for trials. I say that as an even-handed criticism of both sides in that, on the defendants' side, both generally and particularly given what through their solicitors they themselves acknowledged had been a limiting factor relating to the evidence they could prepare for the application as issued, they ought to have appreciated that there was a need to regularise the matter and raise with the court what expert evidence would be required; but equally on the claimant's side, seeing that, identifying immediately, as they will have done, that there were matters seemingly asserted by the expert opinion that had been provided that would be contentious, the claimant ought to have identified that the defendants had not yet sought permission, that the claimant for its part would wish to challenge and deal with the matters of foreign law on their substance, not on the technicality of whether permission had been granted, and ought therefore to have raised with the defendants the need to come to court.
  52. That is not a pedantic procedural concern on the part of the court in this case. In my view it has been a case, albeit that in the end these concerns have not become determinative of the application, in which the absence of either an agreed or directed-by-the-court review of what expert evidence was required, from what experts, answering what questions, has led to the exchange, through the service and counter-service of evidence, of an escalating volume of material not always addressing the same questions or analysing the case for the identification of the questions to be addressed in a consistent fashion and culminating in the late service of a second report by the claimant to which I referred earlier and in respect of which the defendants made a particular complaint. (Again, happily, the objection to the late-served second report has not proved to be of determinative importance in the application.)
  53. In the circumstances, it would have been unfair in the event to both sides not to have considered the evidence such as it is that has been exchanged and the submissions that have been made on it, both sides having prepared the matter on the basis, it would seem, that the material as served would be admitted, so in the order I make today, as well as dismissing the application, I shall give permission in accordance with Part 35 for each side respectively to rely, for the purposes of the application notice of 21 February 2018 only, on the various reports that were in fact served which can be recited in the order. One particular reason for being to that extent pedantic about the matter is so as to emphasise thereby, in case the parties would not have taken this message away from the hearing in any event, that whilst the material that has been exchanged to date may be helpful to the parties in informing each other of the likely shape of possible expert evidence for a future trial and the issues to be addressed, it will not be the expert evidence for trial, and any question of what expertise is to be required, answering what questions, should be regarded as still a matter to be considered properly for the first time by the court with the assistance of the parties as and when the matter comes to case management in the ordinary way.
  54. In all those circumstances, the order today will be for permission in relation to expert evidence, as I have just indicated, and that the application is dismissed.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII