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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Dell Emerging Markets (EMEA) Ltd & Ors v (Systems Equipment Telecommunications Services SAL & Ors [2020] EWHC 1384 (Comm) (02 April 2020) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2020/1384.html Cite as: [2020] EWHC 1384 (Comm) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
London EC4A 1NL |
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B e f o r e :
____________________
(1) DELL EMERGING MARKETS (EMEA) LIMITED (2) DELL COMPUTER SA (3) DELL TECHNOLOGIES INC (4) DELL FZ – LLC |
Claimants |
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- and – |
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(1) SYSTEMS EQUIPMENT TELECOMMUNICATIONS SERVICES SAL (2) MAHER CHAHLAWI (3) MARWAN JUNIOR CHAHLAWI (4) PIERRE ALBERT CHALHOUB (5) SARAH BIBI |
Defendants |
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THE DEFENDANTS did not appear and were not represented.
____________________
Crown Copyright ©
MR JUSTICE HENSHAW:
INTRODUCTION:
FINDINGS IN PREVIOUS JUDGMENT:
SUBSEQUENT EVENTS:
"1 Each of the respondents must, by 4 pm on Tuesday, 31 March 2020 notify
the court via email to the Judge's clerk at [email address stated], and the claimants by email to their solicitors at [email address stated] if he / she / it intends to attend or be represented at the adjourned hearing of the claimants' committal applications against the respondents listed for Thursday, 2 April 2020.
2 The claimants shall ensure that notice of the said adjourned hearing, if not
already provided, and a copy of these directions is provided to the respondents by such means as may be reasonably practicable as soon as possible.
REASONS:
3 The court's practice is for committal hearings to be held as a physical hearing
in a court room in the Royal Courts of Justice, Strand, London, at least in a case where any respondent is expected to attend.
4 In light of the current Covid-19 problems, special arrangements would need
to be made for such a hearing to occur. It is therefore necessary and/or desirable for the court to be informed in advance whether, in the present case, any of the respondents, none of whom attended the first stage of the hearing on 26 February 2020, intends to attend the hearing listed for Thursday, 2 April 2020.
5 Each of the respondents should clearly understand that if they do not attend
the hearing then the court may proceed in their absence and that may result in orders being made in their absence for their committal to prison, and/or for permission for the claimants to issue writs of sequestration against them, and/or for other relief, including, but not limited to, costs orders."
"[The discretion to proceed without a defendant] must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.
In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case …"
(i) The respondents have been served with the relevant documents, including notice of this hearing.
(ii) The respondents have had sufficient notice to enable them to prepare for the hearing. They have had ample time to do so and have served evidence of fact and Lebanese law during the course of the present committal application.
(iii) The respondents have not advanced any good reason for their non-appearance. When I proceeded with the first stage of the hearing on 26 February, I did not accept their assertion that they had been unable to secure legal representation for the hearing by reason of difficulties in transferring funds. They had put forward no documentary, witness or affidavit evidence in support of their assertion. They had not responded to Dell's point that, since SETS has offices in several countries outside Lebanon and claims to do business in a variety of countries, there is no reason to believe that funds could not be made available from sources outside Lebanon; or alternatively, from fresh funds brought in to Lebanon and then paid to English lawyers. I considered it more likely that, like the respondents' previous conduct in this matter, the respondents were seeking to ignore the processes of this court and to evade any sanctions for breaching its orders. I agreed with Dell that the timing of the adjournment request and the respondents' refusal to appear in person before the court lent further support to that view. In my view, the situation is exactly the same today. Specifically, I do not consider that the respondents are absent today, or have failed to respond, because of the Covid-19 problem. I consider it clear from the circumstances as a whole that they decided to cease to engage with the process from well before the lock-down. As I say, there has been no suggestion whatever from them, whether before or after the lock-down, of any desire to attend or seek the adjournment of today's hearing.
(iv) In the light of the respondents' behaviour, I conclude that the respondents know the consequences of the case proceeding in their absence and have chosen neither to be represented nor to be present in person or remotely.
(v) I do not consider that an adjournment would be likely to secure the attendance of the respondents or facilitate their representation.
(vi) There is inevitably some disadvantage to the respondents in not being able to present their account of events or mitigation, in person or by legal representation. However, they set out their case on the facts and have not sought to challenge the facts set out in Dell's evidence in support of this application. The disadvantage is therefore limited.
(vii) A further delay would be highly prejudicial to Dell because it would reduce the chance of the Lebanese proceedings being halted, and would increase the chance of them continuing yet further, thereby putting Dell to further significant expense and trouble, which it is entitled not to have to endure.
(viii) I do not consider that undue prejudice would be caused to the forensic process by the application proceeding in the absence of the respondents. Their factual case, including their case as to Lebanese law, is already before the court. They have now had two opportunities to appear or be represented but have not taken them up.
(ix) The overriding objective favours proceeding with the hearing. The respondents should not be allowed to cause unjustifiable delay and prejudice to Dell by their continued refusal to engage with this application. Moreover, further delay would give the defendants a clear opportunity to commit further breaches of this court's anti-suit injunctions.
SENTENCES FOR CONTEMPT OF COURT:
(i) Their breaches in this case have been both repeated and continuing. Not only has SETS failed to withdraw the Lebanese proceedings, but on 18 February 2020 it filed an appeal from the Lebanese court's judgment of 21 January 2020, in which that court had held that it lacked jurisdiction due to the exclusive English jurisdiction clause, and rejected SETS' argument that the clause was void under Lebanese law. The breaches are, therefore, particularly serious.
(ii) The breaches of the orders were deliberate, and there is a high degree of culpability on the part of each of Maher Chahlawi and Marwan Junior Chahlawi. They were the controlling minds of SETS and, as I have previously found, were motivated by a deliberate intention to breach the anti-suit injunctions.
(iii) Dell has been seriously prejudiced by the breaches. It has been forced to engage in the Lebanese proceedings and incurred substantial costs in doing so. That is the very prejudice the anti-suit injunctions were designed to prevent.
(iv) Maher Chahlawi and Marwan Junior Chahlawi have not accepted any responsibility, nor shown any remorse or change of course, or offered any apology, even after this court has held them to be in contempt, and even after they have been given a further opportunity to purge their contempt.
(v) Maher Chahlawi and Marwan Junior Chahlawi have not offered any reasonable excuse for their lack of compliance with the anti-suit injunctions. As I have already found, the excuse that they were motivated by the threat of civil liability had no substance.
(i) Systems Equipment Telecommunications Services SAL committed breaches of the interim and final anti-suit injunctions on 22 and 28 May, 26 June, 16 October and 27 November 2018, and 28 January 2019, and is in continuing breach of the final anti-suit injunction as set out in more detail in my judgment of 13 March. As it is a company it is not possible to commit it to prison for contempt of court, I shall deal later in this hearing with other relief sought against SETS.
(ii) Maher Chahlawi, in his capacity as a director of Systems Equipment Telecommunications Services SAL, (a) with knowledge of the interim anti-suit injunction wilfully caused and permitted that company to commit, and wilfully failed to take reasonable steps to prevent that company from committing, breaches of the interim anti-suit injunction on 22 and 28 May 2018; and (b) with knowledge of the final anti-suit injunction, he wilfully caused and permitted that company to commit, and wilfully failed to take reasonable steps to prevent that company from committing, breaches of the final anti-suit injunction on 26 June, 16 October and 27 November 2018, and 28 January 2019, and the company's continuing breach of that injunction. I sentence Maher Chahlawi to 18 months' imprisonment for those contempts of court.
(iii) Marwan Junior Chahlawi, in his capacity as a director of Systems Equipment Telecommunications Services SAL, (a) with knowledge of the interim anti-suit injunction wilfully caused and permitted that company to commit, and wilfully failed to take reasonable steps to prevent that company from committing, breaches of the interim anti-suit injunction on 22 and 28 May 2018; and (b) with knowledge of the final anti-suit injunction, he wilfully caused and permitted that company to commit, and wilfully failed to take reasonable steps to prevent that company from committing, breaches of the final anti-suit injunction on 26 June, 16 October and 27 November 2018, and 28 January 2019, and the company's continuing breach of that injunction. I sentence Marwan Junior Chahlawi to 18 months' imprisonment for those contempts of court.
(iv) Sarah Bibi, in her capacity as a director of Systems Equipment Telecommunications Services SAL, (a) with knowledge of the interim anti-suit injunction wilfully caused and permitted that company to commit, and wilfully failed to take reasonable steps to prevent that company from committing, breaches of the interim anti-suit injunction on 22 and 28 May 2018; and (b) with knowledge of the final anti-suit injunction, she wilfully caused and permitted that company to commit, and wilfully failed to take reasonable steps to prevent that company from committing, a breach of the final anti-suit injunction on 26 June 2018, and the company's continuing breach of that injunction for the period while she remained a director and shareholder. I sentence Sarah Bibi to 9 months' imprisonment for those contempts of court.
(v) Pierre Albert Chalhoub in his capacity as a director of Systems Equipment Telecommunications Services SAL, and with knowledge of the final anti-suit injunction, wilfully permitted that company to commit, and wilfully failed to take reasonable steps to prevent that company from committing, breaches of the final anti-suit injunction on 16 October and 27 November 2018, and 28 January 2019, and the company's continuing breach of that injunction. I sentence Pierre Albert Chalhoub to 9 months' imprisonment for those contempts of court.
L A T E R