![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Commercial Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Lakatamia Shipping Company Ltd & Ors v Su & Ors [2020] EWHC 865 (Comm) (08 April 2020) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2020/865.html Cite as: [2020] WLR(D) 221, [2020] 1 WLR 2852, [2020] EWHC 865 (Comm), [2020] WLR 2852 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Buy ICLR report: [2020] 1 WLR 2852]
[View ICLR summary: [2020] WLR(D) 221]
[Help]
BUSINESS AND PRPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT (QB)
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
(1) ![]() ![]() (2) SLAGEN SHIPPING CO LTD (3) KITION SHIPPING CO LTD (4) POLYS HAJI-IONNAOU |
Claimants |
|
- and – |
||
(1) NOBU SU (ala SU HSIN CHI; aka NOBU MORITOMO) (2) TMT CO LIMITED (3) TMT ASIA LIMITED (4) TAIWAN MARITIME TRANSPORTATION CO LTD ((1) 51) TMT COMPAY LIMITED PANAMA SA (6) TMT CO LIMITED LIBERIA (7) IRON MONGER I CO LTD |
Defendants |
____________________
The First Defendant in person.
Hearing date: 8 April 2020
____________________
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be 8 April 2020 at 3.00pm.
Mr Justice Foxton:
INTRODUCTION
i)Lakatamia's
application to continue on the return date, the injunction I had granted on 26 March 2020 ("the Injunction"), and for further orders in relation to that application.
ii) Mr Su's application to purge the contempt for which he is presently serving a sentence of imprisonment at HMP Pentonville.
iii)Lakatamia's
application to list a further application to commit Mr Su to a further period for imprisonment for contempt of court so that the hearing is concluded before Mr Su is released unconditionally from the sentence of imprisonment he is currently serving.
Events since 3 April 2020
i) An application requiring Mr Su to sign mandates to each of his known email and social media providers authorising them to disclose toLakatamia
and the Independent Lawyer the details of the accounts ("the Mandate Application").
ii) An application requiring Mr Su to be subject to further restrictions on his release from HMP Pentonville on 11 April 2020 over and above those imposed by the Waksman Order ("the Conditions Application").
THE INJUNCTION APPLICATION
i) requiring Mr Su to identify social media and email accounts toLakatamia
and an Independent Lawyer appointed by the court, and to give the Independent Lawyer access to the accounts; and
ii) allowing the Independent Lawyer to review the materials, and to produce toLakatamia
those documents which are not subject to either the privilege against self-incrimination or legal professional privilege.
Should the hearing of the return date proceed?
i) Mr Su has been represented by a number of solicitors during the history of these proceedings, including one firm (Cooke, Young and Keidan: "CYK") who were instructed and disinstructed on no fewer than three occasions.
ii) CYK were sacked after the trial, and Mr Su instructed his third set of solicitors, and new counsel. The first counsel he instructed had limited availability, leading to dates being offered for a hearing some time into the future.
iii) Mr Su secured an adjournment of the first CPR 71 hearing at the last minute by promising to provide documents which were never produced.
iv) Mr Su raised an argument on the first day of the committal hearing before Sir Michael Burton that he lacked capacity, leading to an adjournment. The psychiatrist retained by Mr Su had no availability for a capacity hearing. After a psychiatrist retained byLakatamia
had examined Mr Su, Sir Michael Burton rejected the submission that Mr Su lacked capacity.
v) I have already recorded my deep reservations as to whether Mr Su was telling the truth when he told me on 3 April 2020 that he had only received the papers relating to the Injunction Application for the first time the previous afternoon.
Does the Court have jurisdiction to make such an order?
i) under section 37(1) of the Senior Courts Act 1981, on the basis that such an order is just and convenient as a necessary adjunct to the injunctions and orders for the giving of information and production of documents already made against Mr Su;
ii) under the Court's inherent jurisdiction to ensure compliance with the orders already made against Mr Su.
What test should be applied in making the order?
i) As to the first element, the obvious inference on the material before me is that Mr Su still controls substantial levels of undisclosed assets. I have already mentioned the Monaco villas which Mr Su sold, and the proceeds of which, some $27 million, appear to have been channelled through Mr Su's mother Mrs Morimoto to a Dubai company he controls. I have also referred to the three apartments in New York and his part interest in a residential property in Tokyo. Further, credit card receipts which Mr Su was required to produce established that up until his committal, he was leading a lavish lifestyle.
ii) The location and movement of assets controlled by Mr Su must be documented in communications emanating to or from Mr Su or otherwise coming to his attention. Indeed, Mr Su's continuing refusal to produce documents in breach of court orders itself strongly suggests that he is seeking to hide material which would assistLakatamia
in enforcement.
iii) As to the second element, given the lies Mr Su is found already to have told the Court, and the evidence of his determination to frustrate any satisfaction of the judgment against him, there is clearly a real risk that he will take steps to destroy or render irrelevant documents within his control if given warning of the present application. The evidence given by Mr Gardner as to the ongoing pursuit in Monaco of proceedings by a company called Cresta, which Sir Michael Burton found to be Mr Su's company, against Barclays Bank Pc, including pursuing an appeal against the decision of the Court of Appeal of Monaco of 4 June 2019, suggests that Mr Su is still able to communicate instructions in relation to assets from inside prison.
Should fortification of the cross-undertaking be required?
Continuation of the injunction: conclusion
Disclosure
i) First, the Independent Lawyer should not hand over non-privileged documents toLakatamia
which the Independent Lawyer concludes are obviously irrelevant to the identification of assets against which the judgments might be enforced (relevance, in this context, to be judged on the wider "train of enquiry" test).
ii) Second,Lakatamia
may only use documents obtained from the Independent Lawyer for the purpose of enforcing the judgments of the Court (save with the permission of the Court).
THE MANDATE APPLICATION
Should the Court hear the Mandate Application at this hearing?
i) First, the Mandate Application seeks to achieve, by another means, the purpose which the Injunction is intended to achieve, and for which I have found that there is an urgent and compelling necessity.
ii) Second, as with the without notice Injunction, if it is appropriate to grant the Mandate Application, it would be possible to preserve the status quo so far as Mr Su is concerned pending the return date by providing that no documents obtained as a result of the Mandate Application should go further than the Independent Lawyer prior to the return date of any order made on the Mandate Application.
The Mandate Application
The terms of the draft Mandate Order
THE CONDITIONS APPLICATION
Introduction
i) Not to leave or attempt to leave England and Wales.
ii) Not to make or attempt to make any application for any document that would enable him to leave England and Wales.
iii) To inform the Tipstaff of the address at which he intends to reside and to provide a telephone and email address at which he can be contacted.
iv) To report to Charing Cross Police Station every day between 11.00 and 13.00.
"This is a paradigm case where the court should make a further protective order, which is that Mr Su must not leave or attempt to leave England or Wales or make any application for or attempt an application for a passport, identity card, ticket travel warrants or any travel document which would allow him to leave; and that if he has been discharged from prison, he must, before leaving inform the Tipstaff of where he intends to reside within the jurisdiction, and provide a working telephone number and email address where he can be contacted. Of course, it goes without saying that the present confiscation of the passports pursuant to the order of Popplewell J will remain in place. One only has to state the attempt by Mr Su to flee the jurisdiction by going to Liverpool and hopefully onto Belfast, and his general conduct, to conclude without any hesitation on my part that he is a serious flight risk. Accordingly, as a matter of principle, I will grant the application that is being made for the further cross-examination".
i) First, that he be required to reside at the address which he is already required to provide to the Tipstaff.
ii) Second, that Mr Su's compliance with these requirements be subject to electronic monitoring in accordance with directions to be given to the Tipstaff.
Should I hear the Conditions Application at this hearing?
Does the Court have jurisdiction to grant the Order sought?
The Family Division cases
"Routinely, orders are made for passports and travel documents of both child and accompanying adult to be handed over and retained to the order of the court, and injunctions are granted to inhibit removal of the child from the address at which he or she has been located, and restraining removal from England and Wales. The port alert procedure can be activated in cases where there is a 'real and imminent' risk of removal. Sometimes further requirements are imposed, such as an obligation to report at specified times to a local police station."
"[45] … An innovation in this case was the mother's suggestion that the package of protective measures should include … that she undergo electronic tagging. I take the view that such a direction may be made …
[46] … In principle arrangements for electronic tagging can be made if the court so orders, which I assume it would ordinarily only do with the consent of the individual concerned (or perhaps as a condition non-compliance with which might bring about alternative safeguards against the perceived risk). I emphasise that such requirements are unlikely to be appropriate save in a very few cases."
"Electronic tagging works by monitoring the whereabouts of the person wearing a tag, but only in a specific location. The tag is monitored by a device which needs to be installed in particular premises, that device monitors the tag, and the tagging officer is notified if the tagged person is either not in the premises during the relevant times or if the tag is removed".
The use of electronic monitoring in the criminal courts
Electronic monitoring in immigration proceedings
The position under s.37(1) of the Senior Courts Act 1981
i) In 2018, when Mr Su's passport was red-flagged at the UK Border at Paris Gare du Nord, Mr Su absconded from the station.
ii) Mr Su gave a false address when the police acting on behalf of the Tipstaff served him with the Popplewell Order at Heathrow Airport in January 2019.
iii) Mr Su then took a taxi to Liverpool and attempted to catch a ferry to Belfast, in what was clearly an attempt to flee the jurisdiction to Eire (as Sir Michael Burton has already held, to the criminal standard of proof, in the first committal hearing).
iv) I reject Mr Su's evidence that he "panicked" in 2019, or that his behaviour was less serious because he never left England and Wales.
v) There has been no change in Mr Su's desire to thwart orders of this Court in the meantime, as is apparent from the judgment of Mr Justice Jacobs of November 2019 in Mr Su's first purge application and the judgment of Sir Michael Burton of February 2020 when sentencing Mr Su to his second period of imprisonment for contempt.
vi) Mr Su faces a further committal application byLakatamia.
vii) I can place no reliance on Mr Su's suggestion that he has no motivation to flee. His own submissions on this issue referred to his concern for his mother who lives in Tokyo.
i) To order Mr Su to provide the address at which he will live after leaving HMP Pentonville to Hill Dickinson LLP and Mr Adam Tear, as well as to the Tipstaff.
ii) To issue a Ports Alert in the form of the draft submitted byLakatamia.
CONCLUSION